Hugo Black

(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

The American jurist Hugo Lafayette Black (1886-1971) was President Franklin D. Roosevelt's first appointee to the U.S. Supreme Court. Associate Justice Black was an ardent New Dealer and led the liberal and activist wing of the Court for more than 32 years.

The youngest in a family of eight, Hugo Black was born on a farm in the rural area of Clay County, Ala., on Feb. 27, 1886. The family, well off by rural standards, moved to Ashland, the county seat, so that the children would have better educational opportunities. Hugo attended Ashland College. Interested in law, at the age of 18 he enrolled in the University of Alabama Law School at Tuscaloosa. After 2 years he received his law degree and passed the bar examinations.

After a year of practice in Ashland, Black moved his office to Birmingham. In 1917 he became county prosecuting attorney. When the United States entered World War I in 1917, he enlisted in the Army. He received a captain's commission and served with several artillery units until his discharge in 1919. He resumed his law practice in Birmingham, and his reputation, as attorney for the United Mine Workers union and other unions, grew as the result of the high damages he won for his clients.

In 1921 Black joined the Birmingham chapter of the Ku Klux Klan, for political reasons, not because of a belief in the Klan's principles. His record as the prosecuting attorney of Birmingham is studded with examples of leniency toward African American defendants. Black resigned from the Klan in 1925, the year he announced he would run for the U.S. Senate.

Campaigning on a platform that called for aid to farmers, enforcement of prohibition, help to veterans, and immigration restrictions, Black won the seat. During his first term in the Senate he supported the efforts of Senator George W. Norris of Nebraska to keep Muscle Shoals dams for public use. Both President Coolidge and President Hoover, however, vetoed legislation that would have made Muscle Shoals a government project. Black's dream came true when President Roosevelt, in 1933, signed the act creating the Tennessee Valley Authority.

The 1932 election, which Franklin Roosevelt won, also saw Black reelected to the Senate. During Roosevelt's first term Black supported him on most New Deal major measures. Black supported the reelection of Roosevelt in 1936 and in 1937 backed the President's court-packing plan. Black also conducted a series of major investigations into lobbying activities, ship subsidies, and trusts.

With the resignation of Associate Justice Willis Van Devanter in 1937, President Roosevelt made Black his first appointment to the Supreme Court. The decision caused a national furor. Opposition came from conservative Democrats and Republicans who did not wish to see one of the most zealous Roosevelt supporters elected to the highest tribunal. The Senate nevertheless confirmed his appointment in August 1937.

Black's career on the Court proved him a champion of individual liberty. On the Court only 3 years, he wrote the majority decision in Chambers v. Florida (1940), which demonstrated that he had never followed the Klan line. The case concerned the conviction of four African Americans for murder based on confessions obtained under third-degree conditions. The Court, led by Black, nullified the decision. In the same year Black wrote the majority decision in Smith v. Texas, a case concerning an African American who the Court declared had not received a fair trial because no attempt had been made to appoint African Americans to the jury.

Consistently a supporter of the guarantees in the 1st and 5th Amendments to the Constitution, Black was in conflict with Justice Felix Frankfurter. By early 1941 this opposition was shown in the vigorous decision that Black wrote opposing the right of state courts to prohibit picketing. Black continued to show concern for 1st Amendment guarantees when he rendered the majority decision in Marsh v. Alabama (1946), asserting that the Jehovah's Witnesses could not be prevented from freely distributing their religious literature.

Benchmark cases in which Black wrote the majority decisions are legion. In Everson v. Board of Education (1947), Black held for the majority that taxpayers' money could be used to transport pupils to parochial schools. However, he declared that more direct aid to parochial schools was not permissible under the 1st Amendment. In Youngstown Sheet and Tube Company et al. v. Sawyer (1952), Black declared that President Truman's seizure of the steel industry was beyond the chief executive's powers.

One historic decision written by Black inaugurated the expression "one man one vote." In Wesberry v. Sanders (1964), Black ruled that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's." The Supreme Court thus moved into the area of apportioning congressional districts.

Black married Josephine Patterson Foster, the daughter of a Birmingham physician, shortly after he resumed his law practice, following his discharge from the Army. Two sons and one daughter were born to them. Black's first wife died in 1951 and in 1957 he married his secretary, Elizabeth Seay De Meritte. On Sept. 25, 1971, Black died in Bethesda, Md.

Throughout his career on the high bench Black revealed that he was one of the most vigorous supporters of civil rights in the history of the Court. He failed to vote for the protection of basic civil rights in only a few instances. His decision in Korematsu v. United States (1945), for example, supported President Roosevelt's executive order authorizing the creation of military areas from which Americans of Japanese descent were excluded.

Black indicated in many cases he decided that some problems must be resolved ultimately by legislative bodies. However, he quickly struck down legislative or executive action which attacked fundamental freedoms. John P. Frank wrote in the Yale Law Journal in 1956: "In general, he [Black] has preached the doctrine that government should at the same time be both all-powerful and all-weak…."

Further Reading

Although its early publication date causes it to miss some of the highlights of Black's career, Charlotte Williams, Hugo L. Black: A Study in the Judicial Process (1950), is a satisfying, frank, and concise biography. Hugo Black and the Supreme Court: A Symposium, edited by Stephen Parks Strickland (1967), is a useful study which examines all aspects of his career. John P. Frank, Mr. Justice Black: The Man and His Opinions (1949), sees Black as a liberal who furthered the New Deal. The best book on Black's civil liberties decisions is Irving Dilliard, ed., One Man's Stand for Freedom: Mr. Justice Black and the Bill of Rights, a Collection of His Supreme Court Decisions (1963). An excellent study of contrasts is Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court (1961; 2d ed. 1966). Leo Pfeffer, This Honorable Court: A History of the United States Supreme Court (1965), is a good background study.

Additional Sources

Ball, Howard, Hugo L. Black: cold steel warrior, New York: Oxford University Press, 1996.

Ball, Howard, Of power and right: Hugo Black, William O. Douglas, and America's constitutional revolution, New York: Oxford University Press, 1992.

Black, Hugo LaFayette, Mr. Justice and Mrs. Black: the memoirs of Hugo L. Black and Elizabeth Black, New York: Random House, 1986.

Dunne, Gerald T., Hugo Black and the judicial revolution, New York: Simon and Schuster, 1977.

Freyer, Tony Allan, Hugo L. Black and the dilemma of American liberalism, Glenview, Ill.: Scott, Foresman/Little, Brown Higher Education, 1990.

Magee, James J., Mr. Justice Black, absolutist on the Court, Charlottesville: University Press of Virginia, 1980.

Newman, Roger K., Hugo Black: a biography, New York: Pantheon Books, 1994.

Silverstein, Mark, Constitutional faiths: Felix Frankfurter, Hugo Black, and the process of judicial decision making, Ithaca: Cornell University Press, 1984.

Simon, James F., The antagonists: Hugo Black, Felix Frankfurter and civil liberties in modern America, New York: Simon and Schuster, 1989.

For more information on Hugo La Fayette Black, visit Britannica.com.

• Born: Feb. 27, 1886, Harlan, Ala.
• Education: Birmingham Medical College, 1903–4; University of Alabama, LL.B., 1906
• Previous government service: police court judge, Birmingham, 1910–11; solicitor, Jefferson County, Ala., 1915–17; U.S. senator from Alabama, 1927–37
• Appointed by President Franklin D. Roosevelt Aug. 12, 1937; replaced Willis Van Devanter, who retired
• Supreme Court term: confirmed by the Senate Aug. 17, 1937, by a 63–16 vote; retired Sept. 17, 1971
• Died: Sept. 25, 1971, Bethesda, MD

Hugo Lafayette Black rose from humble origins to become one of the most highly regarded justices in the Supreme Court's history. He was the eighth child of a farmer and storekeeper in rural Clay County, Alabama. Through hard work and determination, Hugo Black overcame the hardships of his youth to earn a law degree from the University of Alabama and to begin a career as a lawyer and public official in his home state.

In 1926, Black won election to the U.S. Senate, and he was reelected in 1932. During his second term, Senator Black became a strong supporter of President Franklin D. Roosevelt's New Deal policies. Roosevelt responded in 1937 by making Black his first appointment to the U.S. Supreme Court.

Black's membership on the Court became controversial when newspaper reporters revealed that he had been a member of the Ku Klux Klan from 1923 until 1926. The Ku Klux Klan had been organized after the Civil War by white supremacists who wanted to limit the opportunities and rights of black people. Justice Black repudiated his brief association with the racist Ku Klux Klan in a nationwide radio broadcast. “I did join the Klan,” said Black. “I later resigned. I have never rejoined…. Before becoming a Senator I dropped the Klan. I have had nothing to do with it since that time.” From this controversial beginning on the Court, Justice Black developed into one of its leading members, often taking a strong stand on behalf of the constitutional rights of individuals.

Justice Black favored a strict, literal reading of the Constitution regarding the government's power to infringe individual rights. For example, he wrote that “the First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language… will allow” (Bridges v. California, 1941). In line with this viewpoint, Justice Black joined numerous decisions and wrote several dissents, to advocate virtually unlimited freedom of speech and press. Near the end of his career, however, he dissented from the majority opinions in cases protecting picketing and other nonverbal expression as examples of free speech (Cox v. Louisiana, 1965, and Tinker v. Des Moines Independent Community School District, 1969). In the Tinker case, for example, Black dissented from the Court's decision to protect the right of students in a secondary school to wear black arm bands to protest U.S. government policy in the Vietnam War. The Court decided that by displaying the arm bands the students were expressing “symbolic speech.”

Justice Black was a persistent leader of the Court's use of the federal Bill of Rights to limit the powers of state governments. He interpreted the due process clause of the 14th Amendment, which states, “No state shall… deprive any person of life, liberty, or property, without due process of law,” to require state governments to comply with all provisions of the Bill of Rights. He stated this “total incorporation” position in his dissent in Adamson v. California (1947): “My study of the historical events that culminated in the Fourteenth Amendment… persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights applicable to the states.”

The Court has not yet agreed with his “total incorporation” doctrine—the application of all provisions of the Bill of Rights to the states. Rather, the Court has continued to “incorporate” particular provisions of the Bill of Rights on a case-by-case basis. Through this process, most parts of the Bill of Rights have been incorporated under the due process clause of the 14th Amendment and applied to the states.

Although Justice Black's total incorporation doctrine has not prevailed, he greatly influenced the gradual application of more and more provisions of the Bill of Rights to the states. Thus, he greatly expanded the constitutional protection of individual rights available to the people of the United States.

Justice Black always carried a well-used copy of the Constitution in his pocket as a sign of his devotion to limited government and the rule of law. This faith in the Constitution lasted for the rest of his life. After 34 years of service on the Court, he retired on September 17, 1971, because of ill health; he died eight days later. ;

See also Due process of law; Tinker v. Des Moines Independent Community School District

Sources

• Howard Ball and Phillip J. Cooper. Of Power and Right: Hugo Black, William O. Douglas, and America's Constitutional Revolution (New York: Oxford University Press, 1992).
• Gerald T. Dunne, Hugo Black and the Judicial Revolution (New York: Simon & Schuster, 1977).
• Roger K. Newman, Hugo Black: A Biography, 2nd ed. (New York: Fordham University Press, 1997).
• James F. Simon, “The Antagonists: Hugo Black and Felix Frank furter”, Constitution 3, no. 1 (Winter 1991): 26–34

(1886-1971), political leader and associate justice, U.S. Supreme Court. Constitutional experts have lionized Black, contending that he was "one of a handful of great judges in American history, second only to John Marshall in his impact on the Constitution." And indeed Black left a deep impression on the nation's fundamental document. This seems remarkable in light of his rural Alabama origins and controversial pre-judicial career.

Black first practiced law in Birmingham and served as a police court judge and county prosecutor there before entering the U.S. Senate in 1927. His campaign was aided by his brief membership in the Ku Klux Klan. In the Senate he became a strong supporter of the New Deal and a tenacious, even ruthless senatorial investigator, particularly of the economically powerful. When Franklin D. Roosevelt appointed him to the Supreme Court in 1937, critics objected because of his kkk past; but on the Court he proved to be an active constitutional populist.

Black's two fondest constitutional hopes were to achieve federal enforcement of the national Bill of Rights against the states through the Fourteenth Amendment and to bring about a First Amendment absolutism that would prohibit any restrictions on freedom of speech and press. Prior to 1925, the federal government had not been authorized to enforce the provisions of the federal Bill of Rights against state governments. If citizens of New York, for example, were being denied free speech by the state, their only recourse was to the New York State Constitution. They had (to use lawyers' language) "no federal remedy" since the U.S. Bill of Rights limited only the federal government. To Black's disappointment, however, the Court agreed to incorporate federal rights against the states only on a selective basis. As to the First Amendment rights ("preferred freedoms," as Black saw them), they were strengthened and became the core of a freer, more democratic society.

Black's career on the Court went through two phases. Until 1953, his opinions were frequently liberal dissents, although in 1952 he wrote the majority opinion in the steel seizure case, voiding President Harry S. Truman's emergency takeover of the industry. Here, he demonstrated his constitutional literalism by reaffirming the separate and limited roles of the three branches of the federal government.

After the appointment of Chief Justice Earl Warren in 1953, Black's commitments to the protection of civil liberties and civil rights became majority positions. His 1946 call for reapportionment was now accepted as the Court moved to the "one-man, one-vote" principle. His strong commitment to religious liberty played a key role in the development of the First Amendment's religious guarantees, as his Jeffersonian view of the "wall of separation" between church and state prevailed, especially in his controversial school prayer ruling. His reading of the First Amendment was accepted by the majority, as seen in the limitations the Court developed to constrain the use of libel and obscenity laws. As to political speech, he argued with increasing success for virtually unlimited expression "whether or not such discussion incites to action, legal or illegal."

Although critics charged that he was making the Court an active agent of reform, Black did not consider himself a judicial activist. He did not condone judges exercising personal judgment in constitutional adjudication. Rather, he insisted that the Constitution be interpreted literally. Thus, while he was prepared to apply most of the procedural provisions of the Fourth through the Eighth Amendments to the states, he interpreted the Fourth's limitation on unreasonable search and seizure restrictively, generally accepting law enforcement actions. When other justices sought to create new rights, Black balked, rejecting the notion that the Constitution contains general guarantees of privacy, or "natural rights," beyond those expressly articulated in the text.

In the final analysis, Black was a people's justice. His opinions were clear and moving, and his commitments were to a constitutional order that would extend "liberty and justice for all."

Bibliography:

Gerald T. Dunne, Hugo Black and the Judicial Revolution (1977); Tinsley E. Yarbrough, Mr. Justice Black and His Critics (1988).

Author:

Paul L. Murphy

See also Bill of Rights; Supreme Court.

Black, Hugo LaFayette, 1886–1971, Associate Justice of the U.S. Supreme Court (1937–71), b. Harlan, Clay co., Ala. He received his law degree from the Univ. of Alabama in 1906. He practiced law and held local offices before serving (1927–37) in the U.S. Senate. As Senator he ardently supported New Deal measures, conducted Senate investigations of merchant-marine subsidies (1933) and lobbying (1935), and sponsored (1937) the Wages and Hours bill. His appointment to the Supreme Court by President Franklin Delano Roosevelt met strong opposition from the public and in the Senate because of his earlier membership in the Ku Klux Klan. Black was, however, a staunch defender of civil liberties, and he became the leader of the activists on the Supreme Court, consistently opposing congressional and state violations of free speech and due process.

Bibliography

See T. E. Yarbrough, Mr. Justice Black and His Critics (1989); study by V. Hamilton (1972).

A judge of the twentieth century; he served on the Supreme Court from 1937 to 1971. Black was a strong defender of the civil liberties of the individual against intrusion by the state.

Hugo LaFayette Black was an associate justice on the U.S. Supreme Court for nearly thirty-four years, serving one of the longest and most influential terms in the history of the Court.

Black was born February 27, 1886, in Harlan, Alabama, the eighth child of a storekeeper and farmer. He was raised in rural Alabama and attended local schools. At the age of seventeen, Black entered Birmingham Medical College. He decided that he was more suited to the study of law, however, and left the college after one year to attend the University of Alabama Law School, where he received his bachelor of laws degree in 1906. In the same year, Black was admitted to the Alabama bar. He practiced briefly in Ashland, Alabama, near his childhood home. He then moved to Birmingham, where he quickly developed a successful practice in tort, labor, and contract law. In 1911, he was appointed a judge on the Birmingham Police Court, but he resigned eighteen months later to return to private practice. In 1914, Black was elected county prosecutor for Jefferson County, Alabama, and gained local prominence for his investigation of brutal police tactics used to question suspects at the county jail. In 1917 Black resigned his position as prosecutor and enlisted in the Army. He remained in the United States and served as a captain of the artillery for a year. Then he resumed his private practice in Birmingham, where he frequently represented local workers in personal injury suits and served as an attorney for the local chapter of the United Mine Workers. In 1921 he married Josephine Foster, with whom he had three children.

In 1923 Black joined the Birmingham chapter of the Ku Klux Klan (KKK). He remained a member for two years. He commented later that, at the time, he believed joining the group could further his political and professional career.

In 1926, Black, a Democrat, won a seat in the U.S. Senate, overcoming four other Democrats in the race. Black served in the Senate for nearly ten years and gained prominence as a tenacious and sometimes relentless investigator into the activities of Washington, D.C., lobbyists for public utilities. He was also a member of the Senate Judiciary Committee and a staunch supporter of President Franklin D. Roosevelt's New Deal legislation. A longtime supporter of organized labor, Black helped secure passage of the Fair Labor Standards Act of 1938 (29 U.S.C.A. § 201 et seq.), which established a minimum wage and a forty-hour workweek for enterprises in interstate commerce.

In August 1937, Black became Roosevelt's first appointee to the U.S. Supreme Court, nominated to replace retiring justice Willis Van Devanter. Initially, Black's nomination was met with some opposition. Some critics cited his relative lack of judicial experience; others expressed concern about his "judicial temperament," given the aggressive and even abrasive manner that he was said to display when interrogating witnesses while a senator. Black was nevertheless confirmed in October 1937, by a vote of 63-16. Shortly afterward came confirmation of rumors that had been circulating throughout Washington, D.C., about Black's KKK ties in the mid-1920s. The controversy died quickly after Black spoke about the matter in a radio address. He admitted that he had once been a member but maintained that he had resigned many years earlier and had disavowed any further association with the organization.

Throughout his long career on the Court, Black wrote a number of landmark decisions concerning civil rights, free speech, and other important constitutional issues. In Chambers v. Florida, 309 U.S. 227, 60 S. Ct. 472, 84 L. Ed. 716 (1940), he wrote the majority opinion overturning the death sentences of several blacks who had been coerced, through many hours of police interrogation, into confessing to murder. The Chambers decision, which came early in Black's tenure on the Court and was the first major civil rights decision he wrote, did much to alleviate the fears of civil libertarians about his earlier KKK involvement. In another civil rights case, Boynton v. Virginia, 364 U.S. 454, 81 S. Ct. 182, 5 L. Ed. 2d 206 (1960), Black wrote the majority opinion holding that racial segregation in facilities for travelers violated the Interstate Commerce Act (49 U.S.C.A. § 501 et seq.).

Black had represented many labor organizations while a practicing attorney, and he continued his strong pro-labor stance throughout his career on the Court. In National Labor Relations Board v. Waterman Steamship Corp., 309 U.S. 206, 60 S. Ct. 493, 84 L. Ed. 704 (1940), which involved a dispute over unfair labor practices, Black wrote for the majority that the court of appeals could not substitute its judgment for that of the National Labor Relations Board. In his dissent in United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947), he opposed restrictions that prohibited federal government workers from participating in political campaigns. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952), the Court, with Black writing the majority opinion, held that President Harry S. Truman did not have the authority to seize most of the United States' steel mills to avert a threatened strike.

Black strongly believed that the Due Process Clause of the Fourteenth Amendment to the Constitution—which provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"—means that the first eight amendments of the Bill of Rights must be applied to the states as well as to the federal government. Eventually, a majority of the Court agreed with him. In Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), Black wrote for the majority that states must provide defense counsel to indigent defendants accused of a felony, at any "critical stage" of the criminal proceedings. In Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), in another majority opinion, Black wrote that the Sixth Amendment right of an accused to confront witnesses extends to defendants in state cases.

Black always carried a copy of the Constitution in his pocket. He was a staunch defender of the First Amendment and vehemently opposed any restrictions on the freedom of speech. He dissented in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), which upheld a federal statute making it a crime to advocate the overthrow of the government by force. Black rejected the Court's reliance on the "clear-and-present-danger" test, in which the Court considered whether such a serious danger existed that the restriction of speech was justified. Black wrote, "There is hope … that in calmer times, when present pressures, passions and fears subside, this or some other Court will restore the First Amendment liberties to the high preferred place where they belong in society." He joined Justice William O. Douglas's dissent in the obscenity case Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), in which Douglas maintained that even "prurient" material was entitled to absolute First Amendment protection. In the First Amendment case Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962), he wrote the majority opinion holding that voluntary prayers sponsored by public schools are unconstitutional. He stated, "It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of … sanctioning … prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance." One of Black's last opinions before leaving the Court was for the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971), in which he concurred in the Court's holding that the government could not prevent publication of a classified study on the Vietnam War.

Black departed from his liberal views in Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), a widely criticized decision, for which he wrote the majority opinion upholding the internment of Japanese Americans during World War II. Despite the condemnation of Korematsu in the years following the war, Black stood by the decision, maintaining that it was justified by the climate of fear that existed at the time. In addition, his strict construction of the Constitution led him to write other opinions that sometimes seem inconsistent with his liberal views. He dissented in Griswold v. Connecticut, 381 U.S. 469, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), in which the Court struck down, on privacy grounds, a state law that prohibited the sale of contraceptives. Black maintained that no right of privacy could be found to emanate "from one or more constitutional provisions."

While on the Court, Black was known for being sometimes antagonistic toward other justices with whom he disagreed. The Court's tradition of keeping private its inner workings and the nature of the personal relationships between the justices was broken when Black became engaged in an unusually public feud with Justice Robert H. Jackson in 1946. The dispute began when Jackson, in a letter to the Senate and House Judiciary Committees, accused Black of a conflict of interest for participating in two labor decisions that were argued by a former law partner of Black's. Jackson failed to mention that Black and the attorney had dissolved their partnership nineteen years earlier and had hardly seen each other since. Black, in turn, publicly criticized Jackson's leave of absence from the Court from 1945 to 1946 to serve as the U.S. prosecutor at the Nuremberg trials, calling those proceedings a "high grade lynching party." Jackson was in line for the chief justice seat, which had been vacated in 1946, and he blamed Black when the appointment went to Fred M. Vinson, selected by President Truman to restore peace among the members of the Court. Following Vinson's appointment, Black and Jackson were outwardly cordial to each other, though Jackson was reported to have remained resentful, believing that Black's actions had denied him the post of chief justice.

Healthy and vigorous well into his later life, Black was an avid tennis player who often shared the court with his law clerks. On September 17, 1971, Black resigned from the Court at the age of eighty-five. He died just eight days later after suffering a massive stroke.

Quotes:

"It is the paradox of life that the way to miss pleasure is to seek it first. The very first condition of lasting happiness is that a life should be full of purpose, aiming at something outside self."

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