Black, Hugo Lafayette

Black, Hugo Lafayette (b. Harlan, Ala., 27 Feb. 1886; d. Bethseda, Md., 25 Sep. 1971, interred Arlington Cemetery, Arlington, Va.), associate justice, 1937–1971. Black's humble origins as the son of a storekeeper in rural Clay County, Alabama, offered little basis for optimism about his future career. His two‐year undergraduate law program at the University of Alabama and brief tenure as a Birmingham police court judge were equally discouraging. But his intelligence and sheer determinationtraits inherited largely from his beloved motherenabled Black to over‐come the tremendous odds his background posed. By the early 1920s he was elected to the first of two terms in the U.S. Senate; and in August 1937 he became Franklin D. Roosevelt's first appointee to the Supreme Court, a position he held for thirty‐four years until his retirement in September 1971, a week before his death.

Black's rise to the nation's highest court was as controversial as it was remarkable. Birmingham's business leaders considered the populist Democrat, whose clients had included labor unions, a “Bolshevik,” yet as defense counsel in a notorious murder trial he had appealed to racial and religious bigotry to win his client's acquittal, and in 1923 he had joined the Ku Klux Klan. He resigned his Klan membership in 1926 at the beginning of his first Senate campaign and said in later years that he had joined the “Invisible Empire” largely because many Alabama jurors were also members. He won election to the Senate with KKK support, however, and remained politically indebted to the organization until the early 1930s. As an ardent New Dealer, on the other hand, Black alarmed even President Roosevelt with his attacks on privilege and his support for a thirty‐hour workweek. His heavy‐handed Senate investigations of government ties to big business later led to charges that he was bullying the business community.

The controversy that surrounded Black's career followed him to the Supreme Court. When his Klan membership became public knowledge shortly after his appointment to the bench, the revelation created a national furor (see Nominations, Controversial). Anticipating the rhetoric of southern segregationists by nearly two decades, one group condemned 4 October 1937, the Justice's first day on the bench, as “Black Day.” The liberal voting record Black forged largely allayed those initial doubts, but certain civil libertarians were never entirely comfortable with his stewardship and would find especially offensive his 1944 decision for the Court in Korematsu v. United States, upholding World War II sanctions against Japanese‐Americans. Nor were such concerns alleviated by his defense of Korematsu in a 1967 newspaper interview in which he remarked, “They all look alike to a person not a Jap.”

An exceptionally tenacious, wily defender of positions he thought important, Black often antagonized those justices with whom he most frequently differed, especially Robert Jackson and Felix Frankfurter. When Black refused to recuse himself from a case involving the Jewell Ridge Coal Company and a miners' union even though his former law partner was the union's lawyer, Jackson bitterly criticized his colleague. Later, when Jackson served as an American prosecutor of Nazi war criminals at Nuremberg, he became convinced that Black was attempting in his absence to undermine his chances to replace Harlan Fiske Stone as chief justice, and Jackson dispatched a remarkable fifteen‐hundred‐word cable to Congress, accusing Black of “bullying tactics” and worse. After that incident the two resumed outwardly cordial relations, but Jackson remained resentful of Black, convinced that Black had worked to deny him the Court's center seat. (See Jackson‐Black Feud.)

Frankfurter, on the other hand, was relatively assiduous in maintaining cordial relations with the wily Alabaman. Even after his retirement from the bench, Frankfurter wrote Black flattering letters and applauded his refusal to extend First Amendment protection to participants in sit‐in demonstrations. Frankfurter's jurisprudential ally John M. Harlan II enjoyed warm relations with Black, but Frankfurter's papers indicate that he regularly fed Jackson, Harlan, and others unflattering gossip regarding their colleague. And those who corresponded with Frankfurter apparently had no inhibition about referring to Black as a “skunk.”

Black was not merely one of the Court's most controversial members, however; he was also one of its intellectual leaders. He embraced a positivist conception of the judicial role and of constitutional interpretation that many, including justices whose voting patterns closely resembled his own, considered outmoded and unworkable. As a New Deal senator, Black had been appalled at the Court's use of substantive due process and at its expansive construction of the Tenth Amendment to place a laissez faire gloss on the Constitution's text. He went to the bench determined to restrict the reach of judicial discretion. The jurisprudence that that commitment produced emphasized an interpretivist approach to constitutional meaning and the belief that notions of reasonableness, fairness, social utility, and related noninterpretivist considerations were an appropriate interpretive guide only when the text and the historical record proved unavailing. Black's view was that such penumbral situations rarely arise, and he exhibited a preference for relatively fixed constructions limiting the scope of judicial discretion. (See Interpretivism and Noninterpretivism.)

His positivist jurisprudence permeated Black's approach to specific constitutional questions. He rejected, for example, judicial power to review the reasonableness of state controls over interstate commerce, insisting that the Constitution's text had given Congress, not the courts, the commerce power. But he did not invariably defer to congressional, presidential, or state authority. He rejected, for example, any congressional power to strip persons of their citizenship, and for him the issue was simple: the Constitution's text gave Congress authority to grant, not deny, that status. When President Truman asserted an inherent executive power to seize the nation's steel mills as a means of averting inflationary pressures and a threat to war production, Black required only thirteen paragraphs to explain what he saw as clear differences between executive and lawmaking power, as well as his view that constitutional and statutory texts, not considerations of national interest, dictated the reach and limits of presidential power.

Elements of Black's positivism were most clearly reflected, however, in his construction of important civil liberties guarantees. His literalist, absolutist interpretation of the First Amendment was part and parcel of that jurisprudence (see First Amendment Absolutism). The amendment's language stipulates that “Congress shall make no law” abridging the freedoms it guarantees. For Blacka self‐styled “backward country fellow”those words meant what they said, sophisticated efforts to distinguish “speech” and “freedom of speech” notwithstanding. He thus opposed controls over obscenity, libel, and “subversive” speech as well as the clear and present danger test, balancing (see First Amendment Balancing), and other nonabsolutist measures of governmental authority. At the same time, he opposed extension of the amendment's provisions to picketing and other forms of “speech‐plus” or to “symbolic speech,” and he recognized broad governmental power over access to public and private property, rejecting any notion that the amendment granted people freedom to express their views wherever they happened to be, and largely insisting only that regulations regarding access be evenhanded and clearly worded.

While Black's First Amendment absolutism provided the clearest illustration of his literalism, his views regarding the relationship of the Bill of Rights to the Fourteenth Amendment and his conception of due process as an independent constitutional guarantee may best demonstrate both his reliance on historical intent where language proves an elusive guide to constitutional meaning and his commitment to restricting the scope of judicial discretion. As he extensively explained in his dissent in Adamson v. California (1947), his study of the Fourteenth Amendment's adoption had convinced him that its framers intended its first section, taken as a whole, to incorporate the Bill of Rights, thus making those precious guarantees fully binding on the states as well as the national government (see Incorporation Doctrine). Although, as the Court's spokesman in Chambers v. Florida (1940) and a few other cases, he seemed to equate due process with “fair” proceedings, he generally limited the meaning of that potentially limitless guarantee to the requirement, originally embraced in the English Magna Carta, that government proceed according to the “law of the land,” that is, according to existing laws and procedures, in taking away a person's life, liberty, or property. Through his total‐incorporation thesis and relatively fixed approach to due process, he gave the Fourteenth Amendment a construction that was not only consistent with his reading of the historical record but also limiting on the reach of judicial discretion.

Neither the language nor history of equal protection, the amendment's other potentially open‐ended guarantee, permitted the sort of fixed construction Black preferred. With the exception of the strict scrutiny he accorded malapportioned governmental bodies and certain discriminatory criminal procedures, however, he confined equal protection's meaningful biteand thus the scope of judicial latitudelargely to the guarantee's historical racial context. He refused, for example, to give the poll tax or other varieties of discrimination based on wealth or birth status the strict review to which he and the other members of the Warren Court subjected discrimination based on race, color, or national origin (see Poll Taxes).

During much of his career, Black's positivist jurisprudence carried him in “liberal‐activist” directions, but for Black the Constitution had a “ceiling” as well as a “floor.” The Fourth Amendment, for example, guaranteed protection only against “unreasonable” searches or seizures, and the Justice was reluctant to read broad restrictions on governmental power into so flexible a term, as evidenced by his vacillation on the exclusionary rule. He refused, moreover, to extend the amendment's protection of “persons, houses, papers, and effects” to eavesdropping, especially since he found it impossible to conceive of an eavesdropping warrant that could satisfy the requirement that it “particularly” describe the things to be seized. Nor was he willing to use a penumbra doctrine, substantive due process, the Ninth Amendment, or any other “natural law” device to create rights not reflected in the Constitution's text or the intent of its framers. When a majority embraced a broad right of marital privacy in the controversial Griswold v. Connecticut (1965), for example, he vigorously dissented, charging that the amendment process, not judicial inventiveness, was the appropriate medium of constitutional change. In conference, he assumed the same stance in opposing judicial recognition of the abortion right that the Court would embrace after his death.

Judicial and scholarly critics have probably subjected Hugo Black's judicial and constitutional views to more systematic scrutiny than that accorded the thinking of any other jurist. During the early years of Black's tenure, Charles Fairman, Wallace Mendelson, and other admirers of Felix Frankfurter regularly attacked Black's “expansive” First Amendment jurisprudence and incorporation thesis as well as what they considered to be the ultimate futility of his resorts to literalism and historical intent. During the last decade of his life, however, the justice's votes and opinions became increasingly “conservative‐restraintist” in direction and tone. Not only did he dissent in Griswold and reject extension of the Fourth Amendment to eavesdropping; in numerous contexts he endorsed broad governmental power over demonstrative speech and the uses of property, vehemently rejected the expansion of procedural safeguards beyond the specifics of the Bill of Rights, challenged the notion that the First Amendment reaches shopping centers and other privately owned places of public accommodation (much less school classrooms), and dissented from the Warren Court's expansive interpretations of equal protection. Such thinking produced another group of scholarly critics, who rejected his repeated avowals of doctrinal consistency across his career.

Certain elements of Black's thinking are obviously vulnerable to criticism. While modern scholarship has more frequently supported than attacked his incorporation thesis, for example, his reading of the record underlying the Fourteenth Amendment's adoption is certainly open to challenge. His attempts to distinguish protected speech from unprotected speech‐related conduct and direct from indirect burdens on First Amendment freedoms can be faulted, too, even though a majority of the Court has also traditionally drawn such distinctions. Black's papers and those of his contemporaries abound with evidence, however, that he was remarkably consistent both in his conception of the judicial function and his approach to specific issues throughout his long tenure. It is arguable that Black developed a workable, if imperfect, jurisprudence that reflected both plausible readings of language and history and regard for the dangers of unrestrained judicial powera jurisprudence that struck an acceptable balance between the necessity for judicial review and equally compelling principles of majoritarian democracy.

See also History of the Court: The Depression and the Rise of Legal Liberalism.

Bibliography

Howard Ball , The Vision and the Dream of Hugo L. Black: An Examination of a Judicial Philosophy (1975).
Gerald T. Dunne , Hugo Black and the Judicial Revolution (1977).
Virginia Van der Veen Hamilton , Hugo Black: The Alabama Years (1977).
Tinsley E. Yarbrough , Mr. Justice Black and His Critics (1988).

Tinsley E. Yarbrough