Monday, April 18, 2011

Justices Jackson and Frankfurter on Duty for Taxes (4/18/11)

Justice Robert H. Jackson had, prior to serving on the Supreme Court as the chief United States prosecutor for the Nuremburg Trails, has served both as general counsel of the Treasury where his responsibilities included the IRS and as Assistant Attorney General heading the Tax Division. I received the following email today from Professor John Q. Barrett of St. John's Law School and Fellow of the Robert H. Jackson Center, Inc.. I thought readers would be interested in this email and received permission from Professor Barrett to pass it along. (I have some links at the end for readers desiring to see more on Justice Jackson and some may want to join Professor Barret's email list as well.)

For the Jackson List:

In summer 1962, Justice Felix Frankfurter, age 79 and disabled by a stroke, retired from the Supreme Court of the United States after 23 years of service.

As a retired Justice, Frankfurter kept his mind and interested eyes on many matters.  In winter 1964, for example, he spotted, or someone called to his attention, a quotation that an official U.S. Internal Revenue Service (IRS) form attributed to his late colleague Robert H. Jackson (who once had been the Revenue bureau’s chief counsel).  According to the IRS, Jackson once said or wrote—no source was specified—that “[t]he United States has a system of taxation by confession.  That a people so numerous, scattered and individualistic annually assesses itself with a tax liability, often in highly burdensome amounts, is a reassuring sign of the stability and vitality of our system of self-government.”

Justice Frankfurter loved this alleged Jackson line but could not place it.  So Frankfurter, who for his whole life kept up fascinating correspondence with a very large number of friends and acquaintances around the world, went to the source—he dictated a letter to the Commission of Internal Revenue, Mortimer M. Caplin:

March 2, 1964

My dear Caplin:

That any official form from the Bureau over which you preside should have given me pleasure you may think incredible, but such is the fact.  Not only has it given me pleasure, but it has given me pleasure that you have put it under the eyes of millions of taxpayers.  I am referring to your Form 1040 for 1963 which carries a quotation from my late beloved brother Robert H. Jackson, for he was, as you may know, a person to whom I felt closest of all my colleagues since I came to the Court.

It was a happy thought to quote what you did, because what Jackson wrote is not only deeply true but it is important that you bring it to the consciousness of the American people as you have done.  I thought I knew every citation for all his felicitous observations, and he could hardly write without being felicitous, but I am stuck in trying to place the quotation you have used.  I can only surmise that it may have been, naturally enough, from one of his tax opinions, which so often lighted up dreary subjects with wise observations, but I cannot place it and therefore I am troubling you to tell me what the source is.

I am very sorry that the affliction which befell me has barred me from seeing something of you.

With every good wish,

Very sincerely yours,

/s/ Felix Frankfurter

Caplin promptly supplied the answer:

                                                            March 4, 1964

Dear Mr. Justice Frankfurter:

It was very nice of you to write about this year’s Form 1040.  I regret that we have not had an opportunity of late to get together, but I hope an occasion will arise in the near future.

The quotation used in the “Personal Letter to Taxpayers” came from United States v. Kahriger, 354 U.S. 22 (1953).  Mr. Justice Jackson wrote a concurring opinion, and the specific quotation is contained on page 36.

As you may recall, the decision upheld a $50-a-year stamp tax on persons “engaged in the business of accepting wage[r]s.”  You wrote a separate dissenting opinion.

I hope you are enjoying better health these days.

With warm regards,


/s/  Mort Caplin

On this day when United States federal and state income tax returns are due to be filed, you can find on the IRS website another, perhaps less uplifting, piece of Justice Jackson’s tax law-related wisdom:  "No other branch of the law touches human activities at so many points.  It can never be made simple."  (See

Interestingly, that quotation, which comes from Justice Jackson’s opinion for the unanimous Supreme Court in United States v. Dobson, 320 U.S. 489, 494-95 (1943) is misleadingly incomplete.  Jackson, who generally championed judicial deference to legislative and agency judgments, was specifically cautioning against federal judges making decisions that insert themselves into the work of the IRS and thus add to the complexity of tax law:  “No other branch of the law touches human activities at so many points.  It can never be made simple, but we can try to avoid making it needlessly complex.”  (Emphasis added.)

Best wishes with your taxes and everything else,



Links to the Jackson archives are here. To join the list, write Professor Barrett here.


  1. Jack, another stellar post!
    My favorite, and one I have used successfully to get prosecutors to drop a criminal case is found at

    a speech as AG he gave to US Attorneys at a judicial conference in 1940 I believe.

  2. Oh, well, Steve, I must respond with the opening paragraph from the Wikipedia link for Justice Jackson (apologies for those who have already gone to the link, but if you have not read the whole Wikipedia article, I do recommend you do so):

    Robert Houghwout Jackson (February 13, 1892 — October 9, 1954) was United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). He was also the chief United States prosecutor at the Nuremberg Trials. A "county-seat lawyer", he remains the last Supreme Court justice appointed who did not graduate from any law school (though Justice Stanley Reed who served from 1938–1957 was the last such justice to serve on the court), although he did attend Albany Law School in Albany, New York for one year. He is remembered for his famous advice, that "...any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances." and for his aphorism describing the Supreme Court, "We are not final because we are infallible, we are infallible because we are final." Many lawyers revere Justice Jackson as one of the best writers on the court, and one of the most committed to due process protections from overreaching federal agencies.

  3. A sign of greatness that lawyers many years later would go tit-for-tat (can I say that?) about words of legal wisdom from someone who wasn't even a member of the club (big law school graduate).

    I had a tax case against Hugo Black III (AUSA in Miami who, sadly, passed away suddenly several years ago) and other than the obvious justice he adored, his grandfather, he was a great fan of Justice Jackson's too.


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