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Justice Black participated in 3936 cases.
Joined with Majority2763
Dissented841
Concurred107
Concurring in Judgment200
Did Not Participate56
Judgment of the Court10
Dissent from Denial of Certiorari1
Jurisdictional Dissent14

Black, Hugo Lafayette

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Birth: February 27, 1886, Harlan, Alabama.

Education: Birmingham Medical School, 1903–1904; University of Alabama Law School, LL.B., 1906.

Official Positions: Police court judge, Birmingham, 1910–1911; county solicitor, Jefferson County, Alabama, 1914–1917; U.S. senator, 1927–1937.

Supreme Court Service: Nominated associate justice by President Franklin D. Roosevelt, August 12, 1937, to replace Willis Van Devanter, who had retired; confirmed by the Senate, August 17, 1937, by a 63–16 vote; took judicial oath August 19, 1937; retired September 17, 1971; replaced by Lewis F. Powell Jr., nominated by President Richard Nixon.

Death: September 25, 1971, Bethesda, Maryland.


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Hugo Lafayette Black
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Hugo Lafayette Black

Few Supreme Court justices have achieved the exalted status of Hugo Black, who is widely viewed as one of the Court's most influential justices and perhaps its most committed textualist. Yet much of what the public knows about Justice Black consists of the more colorful aspects of his character and judicial performance.

For example, his contemporaries believed that President Franklin Roosevelt selected Black as his first Supreme Court appointment in 1937 because of the nominee's ardent support in the Senate for the New Deal and the president's Court-packing plan. Black's reputation for trying to read the Constitution as literally as possible is memorialized through his practice of carrying a copy of the document in his pocket for ready reference and his persistently unique reading of the First Amendment as absolutely prohibiting any government interference with the freedom of speech and press. He is also widely remembered for his capacity for hard work, as reflected in his lifelong habits of reading extensively on his own and researching thoroughly any subject of personal or professional interest to him. Moreover, conservatives and liberals alike have admired Black: conservatives commend his steadfast commitment to judicial restraint and opposition to substantive due process, and liberals praise his efforts to secure the constitutional foundations of the New Deal and the incorporation of most of the Bill of Rights. Yet, many people still speculate about whether Black should even have been confirmed in light of his membership, while a young lawyer, in the Ku Klux Klan.

These glimpses into Hugo Black's life and judicial career do not fully reflect the skills he brought to the Court, his judicial philosophy, or his influence on the development of American constitutional law. Black was a seminal figure in constitutional history, but for more complex reasons than his popular image suggests.

Black came to the Court far better prepared and with more settled views on constitutional interpretation than is commonly thought. He graduated at the top of his University of Alabama Law School class, in spite of concurrently taking a full liberal arts curriculum, and began practice in Ashland. In 1907 he moved his practice to Birmingham. Within his first five years in Birmingham, he served for a year and a half as a part-time municipal court judge and for three years as the Jefferson County prosecuting attorney. These positions taught him about police misconduct and the need for efficient but equal justice. In perhaps his most famous case as a prosecutor, he investigated and prosecuted several area police officers for abusing and forcing confessions from black defendants. These personal experiences helped to guide him later as a senator to declare that he would not vote to confirm a former prosecutor as a federal judge if he felt that the latter had abused fair criminal procedures, and as a Supreme Court justice to recognize criminal defendants' constitutional rights.

His private practice included a substantial number of personal injury cases. This work enabled him to sharpen his talents as an eloquent, passionate advocate in countless jury trials and in more than 100 cases in the Alabama appellate courts. His oratorical skills helped him to get elected in 1927 to the U.S. Senate, where he developed an understanding of the relationship between the federal political process and the Supreme Court. On the floor of the Senate and in committees, he often passionately and eloquently defended New Deal legislation and criticized the activist conservative Court. His skills as an orator were also evident in his first public act as an associate justice, when, immediately after his confirmation, he gave a brief but dramatic radio address to verify newspaper reports that he was once a member of the Klan, but to add that he had resigned many years before and would comment no further.

Significantly, Black's second term as a senator coincided with Roosevelt's 1932 election victory. Black quickly caught the president's attention as a committed New Deal liberal who had sponsored a statute that later became the Fair Labor Standards Act of 1938, supported antitrust and other commercial or economic regulations, and oversaw Senate investigations that exposed the abuses of private shipping operators, major commercial airlines, and large utility holding companies. In numerous committee hearings and floor debates, Black espoused the beliefs that Congress had the authority under the commerce clause to pass appropriate legislation to deal with any problem that directly or indirectly affected the national economy and that the federal courts lacked any constitutional authority to interfere with such enactments.

In his unequivocal support for the president's Court-packing plan, he confirmed the power of Congress to change the number of members of the Supreme Court, and he declared that “neither the people who wrote nor the people who approved the Constitution ever contemplated that the Supreme Court should become all powerful.” Foreshadowing the philosophy he would later espouse on the Court, Black suggested that the five conservative justices who dominated the Court made it necessary for the president to take extreme action:

The time has arrived when those who favor fitting laws to modern needs in order to correct and cure social and industrial injustice must face their problems squarely and fairly. Everybody knows that Supreme Court decisions by a bare majority have for years been thrown as impassable barriers in the way of the solemn and well-matured legislative plans supported by the people.

Once on the Court, Black quickly synthesized his views on constitutional interpretation into a coherent judicial philosophy. He declared a jurisprudence of certainty, with clear, precise standards that would limit judicial discretion, protect individual rights, and give government room to address a significant range of social problems. He saw the Constitution as a set of commands designed to prevent the recurrence of certain historic evils. Once he had determined the scope of a constitutional mandate through its literal language or its framers' intent when its text was unclear, he rigorously applied it, regardless of the consequences or conflicting precedent.

Black gave one of the fullest expressions of his approach to judicial decision making in the inaugural James Madison lecture at New York University Law School in 1960. He denounced the practice of other justices, such as Felix Frankfurter and John Marshall Harlan, to engage in judicial balancing, which “regard[ed] the prohibitions of the Constitution, even its most unequivocal commands, as mere admonitions which Congress need not always observe.” Rather, Black recognized that “the whole history and background of our Constitution and Bill of Rights [belie] the assumption or conclusion that our ultimate constitutional freedoms are no more than our English ancestors had when they came to this new land to get new freedoms.” He believed that the framers had resolved all of the necessary balancing of constitutional liberties in 1791: “Where conflicting values exist in the field of individual liberties protected by the Constitution, that document settles the conflict.”

Despite its clarity, Black's methodology, as well as many of the results it produced, rarely commanded a majority of the Court. For example, he repeatedly argued that the Constitution meant exactly what it said in the First Amendment's command that government could never abridge freedom of speech and press. In his Madison lecture, he explained:

The phrase “Congress shall make no law” is composed of plain words, easily understood.… The Framers knew this. The language used by Madison in his proposal was different, but no less emphatic and unequivocal.

Of course, the decision to provide a constitutional safeguard for a particular right, such as …. the right of free speech …. involves a balancing of conflicting interests. I believe, however, that the Framers themselves did this balancing when they wrote the Constitution and the Bill of Rights.… Courts have neither the right nor the power to …. make a different evaluation of the importance of the rights granted in the Constitution.

Nevertheless, a majority of the Court consistently favored a balancing approach over Black's absolutist reading of the First Amendment. Even in the last opinion he ever wrote, in the Pentagon Papers case, New York Times v. United States (1971), only William O. Douglas joined Black's reiteration of his view that even when national security might be at stake, “the history and language of the First Amendment support the view that the press must be left to publish news, whatever the source, without censorship, injunctions, or prior restraints.”

Ironically, Black's unique methodology led him to consistently take a far more hospitable stance toward the government in Fourth Amendment cases. He almost always gave the government wide latitude in determining the “reasonableness” of its searches, even those without a warrant. For example, in a heated dissent in Berger v. New York (1967), he rejected the majority's invalidation of a conviction based on electronic eavesdropping. Seemingly oblivious to the dangers of wiretapping, he argued that there was nothing in the Fourth Amendment's history to suggest that its framers intended to prohibit governments from using technological innovations to investigate crimes and enforce the law.

In spite of the rarity with which a majority of the Court fully endorsed his methodology—but partly as a consequence of his strong reasoning and persistent advocacy during his long tenure on the Court—Black left his mark on constitutional law in two significant ways. First, he wrote a number of influential opinions that helped to keep critical debates open long enough to allow other justices to change their thinking or to take a position similar to his own but for different reasons. Second, he cast a number of critical votes that helped to shape several areas of constitutional law.

Through his opinions, Black exerted influence in diverse fields such as freedom of speech, incorporation, criminal procedure, and reapportionment. For example, his constant assertion that the First Amendment did not permit the government to regulate obscenity eventually led the Warren Court to define obscenity in a way that made its regulation more difficult. Similarly, his persistent criticism of the government's investigations of and prosecutions for so-called anti-American activities in the 1950s ultimately helped to guide the Warren Court to overturn a number of convictions in the McCarthy era based on “subversive activities.”

Black also exerted considerable influence in keeping the debate on incorporation open and facilitating the Court's movement to make most of the Bill of Rights applicable to the states. He sought to reconcile the history and language of the Fourteenth Amendment with the basic need for judicial restraint in the American constitutional scheme. His solution was to propose total incorporation—in other words, to define the term liberty in the Fourteenth Amendment's due process clause as including no more or less than the guarantees specified in the first eight amendments.

He first expressed his views on total incorporation in his dissent in Adamson v. California (1947). Joined by Douglas, he laid down the formulation that guided him for the rest of his judicial career:

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.…

…. I fear to see the consequences of the Court's practices of substituting its own conceptions of decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting and enforcing that Bill of Rights.… To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution.

Black sought to restrict judicial discretion by urging the Court to define liberty in terms of another part of the constitutional text in which the original framers had explicitly defined the basic components of liberty as consisting of the specific guarantees set forth in the first eight amendments.

For the next twenty years and in numerous cases, Black continued to call on his fellow justices to apply the first eight amendments to the states. During that period, he often came into conflict with Justice Frankfurter, who rejected total incorporation and argued vigorously instead that the Fourteenth Amendment applied certain guarantees to the states as a matter of fundamental fairness. Although the Court never endorsed total incorporation, it inexorably moved away from the Frankfurter position it had initially adopted in Wolf v. Colorado (1949) in the direction of incorporating most of the Bill of Rights. For example, in Mapp v. Ohio (1961), Black concurred with the majority's declaration that the states must uphold the guarantees of the Fourth Amendment as incorporated through the Fourteenth Amendment. With this announcement, the Court overruled Wolf, which had applied the established constitutional theory that the Fourteenth Amendment's due process clause contained all the authority necessary to strike down state conduct that was fundamentally unfair.

By the time Black retired from the Court in 1971, the incorporation debate had ended. His persistent advocacy had facilitated the Court's move to incorporate all of the Bill of Rights, with the exceptions of the Second and Third Amendments, the Fifth Amendment's requirement of grand jury indictment, and the Seventh Amendment.

His success in the incorporation debate helped to set the stage for the nationalization and reformation of state criminal procedures. In contrast to his narrow reading of the Fourth Amendment, he read the Fifth and Sixth Amendments expansively. Drawing on his experiences as a police court judge and county prosecutor, he constantly tried to lead the Court to strictly enforce the Constitution's provisions defining the conditions of trial by jury and availability of counsel and prohibiting coerced confessions, compulsory self-incrimination, and double jeopardy. Indeed, one of the first Court opinions he wrote, Johnson v. Zerbst (1938), held that in a federal prosecution counsel must be appointed to represent a defendant who cannot afford to hire an attorney. He also wrote the Court's unanimous opinion in Chambers v. Florida (1940), which held that the confessions obtained by Florida authorities to condemn four black defendants to death were clearly coerced and, therefore, a violation of the Fourteenth Amendment's due process clause. In language to which he and other justices often turned in subsequent criminal procedure cases, he wrote:

Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed [in this case] shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being to our Constitution—of whatever race, creed, or persuasion.

When the Court refused to make assistance of counsel mandatory in state felony trials in Betts v. Brady (1942), he vigorously dissented. Even though he had not yet fully developed his incorporation theory, and the Court had not yet agreed to apply the Sixth Amendment to the states, Black argued in Betts that a state's failure to provide counsel for defendants in state felony trials clearly violated the majority's own “[standard] that due process of law is denied if a trial is conducted in such a manner that it is ‘shocking to the universal sense of justice’ or ‘offensive to the common and fundamental ideas of fairness and right.’” Eventually, Black's persistence paid off. In his opinion for a unanimous Court in Gideon v. Wainwright (1963), which overruled Betts, he declared:

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him.

Black also helped to shape the Court's establishment clause doctrine. He wrote the Court's opinion in Everson v. Board of Education of Ewing Township (1947), which was the first case to declare that the clause applied to the states. Although the Everson Court ultimately concluded that the state's payment of the bus fares of all pupils, including those in parochial schools, served a secular purpose and therefore did not violate the establishment clause, Black expressly agreed with Thomas Jefferson that the clause was intended to erect “a wall of separation between Church and State” and noted that government cannot “contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church.” In Illinois ex rel. McCollum v. Board of Education (1948), the Court, in yet another Black opinion, held unconstitutional a released time program in which religious instruction took place in public school. Fourteen years later, Justice Black wrote perhaps his most controversial opinion on the separation of church and state in Engel v. Vitale (1962), which held that a state-sponsored “non-denominational prayer” was “wholly inconsistent” with the establishment clause. In his view, that clause prohibited any laws that “establish an official religion whether [they] operate directly to coerce non-observing individuals or not.” He wrote, “Religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.”

In addition, Black helped to lead the Warren Court to strike down enactments permitting disproportionate legislative representation at the state and federal levels. Indeed, he supported the equal protection claim in every reapportionment case that came before the Court during his tenure. He argued that Article I conferred on qualified voters the rights to vote and to have their votes counted on an equal basis in congressional elections. Yet, over his dissent, the Court declared in Colegrove v. Green (1946) that such matters were “political questions” whose merits the Court could not reach. Justice Frankfurter explained that the reapportionment was business for politicians to handle. By entering the “political thicket,” Frankfurter warned, the Court risked political reprisals that could ultimately undercut its institutional authority. Black's dissent denounced the Court's preoccupation with political considerations rather than its paramount responsibility of determining whether legislative malapportionment violated the Constitution. He explained that both Article I and the equal protection clause required that congressional district lines be drawn “to give approximately equal weight to each vote cast.” Eventually, four other justices adopted Black's views on the justiciability of apportionment in Baker v. Carr (1962). Just two years later, Black delivered the Court's opinion in Wesberry v. Sanders (1964), which formally overturned Colegrove. As he explained, “The right to vote is too important in our free society to be stripped of judicial protection by such an interpretation.”

Black made a second significant impact on constitutional law, not through his opinions, but through his votes in a number of pivotal cases. In this way, he influenced the Court's approaches to the commerce power, criminal procedure, school desegregation, reapportionment, and freedom of religion.

For example, Black consistently supported the Court's abandonment of its substantive due process review of economic regulations and the rise of a more deferential judicial reading of the commerce clause. Within his first five years on the Court, he joined unanimous decisions rejecting a substantive due process challenge to the provisions of the Fair Labor Standards Act in United States v. Darby Lumber Co. (1941) and sustaining, in Olsen v. Nebraska (1941), a state statute fixing the maximum fee that an employment agency could collect from employees. In explaining the Court's unanimous decision upholding a state right-to-work law that prohibited closed shops in Lincoln Federal Union v. Northwestern Iron & Metal Co. (1949), Black declared that the Court had abandoned substantive due process in economic cases and returned “to the earlier constitutional principle that states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition.” In fact, during Black's thirty-four-year tenure, the Court never struck down a federal law for violating the commerce clause. For his part, Black consistently voted in the 1960s to uphold the constitutionality of congressional enactments premised on the commerce clause and Section 5 of the Fourteenth Amendment for the purpose of remedying racial discrimination in private accommodations and voting practices.

In addition, Black consistently joined the Court's opinions aimed at ending segregation in the United States. For example, when Brown v. Board of Education (1954) was first argued, and the Court under Chief Justice Fred Vinson was first considering whether to overrule Plessy v. Ferguson (1896), Black was one of only four justices who voted to overturn Plessy and to order the end of segregation in public schools. When Brown was reargued after Vinson's death and the appointment of Earl Warren, Black was one of the first to join the new chief justice's subsequently unanimous opinion in Brown.

In Griffin v. County School Board (1964), Black strengthened Brown by writing the Court's opinion holding illegal the action of a county school board that had closed its public schools to avoid integration and thereby contributed to the support of private segregated schools. He wrote, “The time for mere ‘deliberate speed’ has run out, and that phrase can no longer justify denying these Prince Edward County school children their constitutional rights to an education equal to that afforded by the public schools in the other parts of Virginia.” He explained that the trial court could, if necessary, close all the schools in Virginia if the public schools were not reopened in the affected county. Black also joined another important, unanimous school desegregation decision in Green v. County School Board (1968), which struck down a “freedom of choice” plan that failed to satisfy a district's obligation to develop a scheme to end its segregated school system immediately.

In the criminal procedure area, Black not only delivered some important opinions, but he also cast critical votes in several others. He was one of the five justices who formed the slim majorities in two seminal criminal procedure cases. The first was Escobedo v. Illinois (1964), which invalidated a conviction based on statements obtained from a criminal defendant who had been interrogated by the police, but not granted any of his requests to consult his counsel or to have his counsel present. The second case was Miranda v. Arizona (1966), which established one of the Warren Court's most lasting but controversial principles—that a criminal defendant's Fifth Amendment right against self-incrimination and Sixth Amendment right to assistance of counsel require the police to observe or comply with certain procedural safeguards for any individual who has been “taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning.”

Ironically, for all of the influence Hugo Black wielded, his failures often proved as notable as his successes on the Court. For example, he opposed but failed to prevent the Court's recognizing a constitutionally protected right of privacy. In his dissent in Griswold v. Connecticut (1965), he harshly criticized the majority's striking down a Connecticut law prohibiting the sale of contraceptives to married couples on the basis of a right of privacy implicitly protected by the “penumbras” of the Bill of Rights, the liberty component of the Fourteenth Amendment due process clause, or the Ninth Amendment. He argued that the original framers had already made a decision in the Bill of Rights as to which aspects of a person's privacy to give constitutional protection and which aspects to leave to the majoritarian process for protection or regulation. He viewed the Court's recognition of any implied fundamental right (such as a general marital right of privacy), other than those applied to the states by virtue of total incorporation, as the revival of substantive due process. As he argued, “Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention.” Two years later, in his dissent in Berger v. New York (1967), he similarly lamented that a right of privacy was nothing more than a “vague judge-made goal” and “like a chame-leon, has a different color for every turning.”

A second notable failure occurred in cases involving equal protection/fundamental rights, which were interests found by the Warren Court to be of such importance that distinctions made on the basis of their exercise required compelling justifications. Black maintained that the Fourteenth Amendment equal protection clause had been designed primarily to end racial discrimination, and he insisted that the Court should apply no more than a rational basis test to review any equal protection claim other than those involving racial discrimination. He therefore dissented when the Court used strict scrutiny under the equal protection clause to strike down laws that made it more difficult for people to exercise their right to travel in Shapiro v. Thompson (1969) and their right to vote in Harper v. Virginia State Board of Elections (1966) and Kramer v. Union Free School District No. 15 (1969).

Yet Black also failed to oppose uniformly the Warren Court's equal protection/fundamental rights decisions. Despite his qualms about expanding the equal protection clause to strike laws down on the basis of something other than racial discrimination, his recognition of the needs for equal justice and fair criminal procedures led him to write the plurality opinion in Griffin v. Illinois (1956), in which the Court held that a state must furnish an indigent criminal defendant with a free trial transcript if such a transcript is necessary “for adequate and effective appellate review” of his conviction. Black wrote:

[O]ur own constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons.…

In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color. Plainly the ability to pay costs in advance bears no rational relationship to a defendant's guilt or innocence and could not be used as an excuse to deprive a defendant of a fair trial.…

It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty.

Similarly, he joined Douglas v. California (1963), in which the Court struck down a state law requiring state appellate courts, on the request of an indigent criminal defendant for counsel on appeal, to make “an independent investigation of the record” and “to appoint counsel [only] if in their opinion it would be helpful to the defendant or the court.” Nevertheless, when the Burger Court in Boddie v. Connecticut (1971) struck down a state law that required individuals to pay court fees and costs of about sixty dollars in order to sue for divorce, Justice Black dissented on the grounds that neither the due process nor the equal protection clause permitted “judges [to] hold laws constitutional or not on the basis of a judge's sense of fairness.”

Another failure involved Black's misapplication of an equal protection standard he initially had helped to define. In his controversial majority opinion in Korematsu v. United States (1944), he made the first reference in the Court's history to race as a suspect classification, which, he explained, must be subjected to the “most rigid scrutiny.” Under this standard, he then upheld, over the heated dissents of Frank Murphy, Robert Jackson, Owen Roberts, and Wiley Rutledge, the constitutionality of the internment of Japanese Americans during World War II. Even though historians have subsequently established that the military in fact had no reliable evidence to substantiate its claims that Japanese Americans on the West Coast posed a threat to the national security of the United States, Black never expressed any regret over the Korematsu decision. Rather, as criticism of Korematsu mounted in subsequent years, he boldly defended it: “There's a difference between peace and war. You can't fight a war with the courts in control.” He even added that all people of Japanese ancestry “look alike to a person not a Jap. [Had] they attacked our shores you'd have a large number fighting with the Japanese troops. And a lot of innocent Japanese Americans would have been shot in the panic. Under these circumstances I saw nothing wrong in moving them away from the danger area.”

A fifth, and particularly significant, failure involved Black's inability during his last decade or so on the Court to build coalitions, maintain consistency in his votes and opinions, and exhibit the tolerance he had demonstrated in the previous twenty-five years. It is difficult to determine whether these changes in the style and substance of his constitutional decision making were attributable to his failing health, a changing world, or some combination of the two. In the 1960s, while new issues confronted the Court, Black fought the problems of old age, particularly cataracts, which interfered with his practice of researching his opinions thoroughly. During this period, his opinions grew shorter and often contained an unprecedented note of anger and exasperation. He also became more curt with his colleagues and his law clerks.

For example, despite his support for Brown and opposition to racial discrimination and the abridgement of freedom of speech, Black resisted extending the Constitution's protection to civil rights protesters' demonstrations on private property. Even though he had earlier written the majority opinion in Marsh v. Alabama (1946), in which the Court applied the First Amendment to a privately owned company town, Black later dissented in another case on the ground that the trespass convictions of civil rights demonstrators attempting to coerce a private restaurant to serve them should have been sustained. He contended that “none of our prior cases has held that a person's right to freedom of expression carries with it a right to force a private property owner to furnish his property as a platform to criticize the property owner's use of that property.” He argued that a property owner, whether governmental or private, was under no obligation to provide a forum for speech; if owners could not control their property, Black feared, the result would be mob violence. In his view, the rule of law should take precedence over encouraging public discourse and protest. Focusing on maintaining “tranquility and order” in cases such as Gregory v. Chicago (1969), Black criticized protestors who “think they have been mistreated or [have] actually been mistreated,” and their supporters who “do no service [to] their cause, or their country.” These statements contrast sharply with his prior respect for dissenters, toleration of the unorthodox, and receptivity to new ideas.

During his last decade on the Court, Black also failed to persuade a majority of justices to accept fully his distinction between freedom of speech and expressive conduct. He argued that the First Amendment's guarantee of freedom of speech did not include expressive conduct. Yet, he was unable to persuade the Court to agree that activities such as flag burning or wearing a jacket with a profane epithet about the draft were not insulated by the First Amendment from criminal sanction. Indeed, he joined Justice Blackmun's dissent in Cohen v. California (1971), characterizing the jacket-wearing as conduct and not speech, while in the same year reiterating his commitment to protecting freedom of the press in the Pentagon Papers case. Black defended his stance in Cohen as necessary line-drawing, but it does not comfortably coexist with his position in other cases to grant First Amendment protection to some expressive conduct, such as movies.

Black also assumed an ambivalent posture with respect to First Amendment protection for picketing. In Giboney v. Empire Storage and Ice Co. (1949), he wrote that legislatures could regulate picketing, but in Barenblatt v. United States (1959), he noted that they could not abridge “views peacefully expressed in a place where the speaker had a right to be.” In Cox v. Louisiana (1965), however, he said, “Picketing, though it may be utilized to communicate ideas, is not speech, and therefore is not of itself protected by the First Amendment.” This position contrasts with his statement in Feiner v. New York (1951), in which he had labeled the Court's decision sanctioning police action to silence a speaker as “a long step toward totalitarian authority.”

Finally, Black never succeeded in persuading any other justices to join his views on stare decisis. He often argued that any erroneously reasoned precedent should be overruled, but throughout his tenure his colleagues refused to endorse his standard, which they believed would have introduced greater instability into constitutional adjudication.

By the time Hugo Black left the Court in 1971, more had changed than just his health, tone, and substantive views on many constitutional issues. He had succeeded in moving from being perceived at the time of his appointment as a Roosevelt loyalist to being regarded as a fiercely independent justice. Part of the explanation for this change in perception may be that many of the issues presented to the Court during his tenure were unforeseen at the time of his appointment.

Indeed, social and political conditions have changed to such an extent that today the justice who comes closest to carrying on the legacy of Hugo Black, a New Deal liberal, is Antonin Scalia, an ardent conservative. Justice Scalia seems to share Black's deference to majoritarian decisions (particularly on noneconomic matters), strict adherence to the literal or plain reading of the Constitution, and preferences to overrule wrongly decided cases and to adopt bright-line tests. Scalia has gone even further than Black as a textualist to include expressive conduct within the ambit of First Amendment protection and to argue that the Sixth Amendment confrontation clause must be read literally to mean that every criminal defendant has a right to confront his or her accusers face-to-face in the courtroom.

But Black's legacy goes further than the areas in which he and Scalia might have concurred. Besides helping to secure the incorporation of most of the Bill of Rights and the foundations of the New Deal, to enliven legal and judicial debates over substantive due process and equal protection fundamental rights, and to shape First Amendment and criminal procedure principles that persist, Hugo Black exhibited an independence, integrity, and consistency against which all subsequent justices have measured themselves. Ironically, no one would have been more disappointed than Black himself that even he could not always meet his own high standards.

Bibliography

A small body of Hugo Black papers is housed in the Library of Congress. Black expressed his own constitutional views not only in his opinions but also in A Constitutional Faith (1968), and in the famous Madison lecture, “The Bill of Rights,” New York University Law Review 35 (1960). Both personal and professional insights can be found in Hugo L. Black Jr., My Father: A Remembrance (1975).

There is a great deal of secondary literature on Black the man and the justice. One study that traces his thought to his roots and early career in Alabama is Steve Suitts, Hugo Black of Alabama (2005). See especially William Leuchtenburg, “A Klansman Joins the Court: The Appointment of Hugo Lafayette Black,” University of Chicago Law Review 41 (1973): 1; Charles Reich, “Mr. Justice Black and the Living Constitution,” Harvard Law Review 76 (1963): 673; and the profiles by John P. Frank in Friedman and Israel, Justices vol. 3, 2321; and by G. Edward White in chapter 14 of his The American Judicial Tradition: Profiles of Leading American Judges, exp. ed. (1988).

For fuller biographies, see Roger K. Newman, Hugo Black: A Biography (1994); Gerald T. Dunne, Hugo Black and the Judicial Revolution (1977); James J. Magee, Mr. Justice Black: Absolutist on the Court (1980); and Tinsley E. Yarbrough, Mr. Justice Black and His Critics (1988). A unique dual biography is James F. Simon, The Antagonists: Hugo Black, Felix Frankfurter, and Civil Liberties in Modern America (1989).

Noteworthy Opinions

Johnson v. Zerbst, 304 U.S. 458 (1938)

Chambers v. Florida, 309 U.S. 227 (1940)

Betts v. Brady, 316 U.S. 455 (1942) (Dissent)

Korematsu v. United States, 323 U.S. 214 (1944)

Marsh v. Alabama, 326 U.S. 501 (1946)

Colegrove v. Green, 328 U.S. 549 (1946) (Dissent)

Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947)

Adamson v. California, 332 U.S. 46 (1947) (Dissent)

Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948)

Griffin v. Illinois, 351 U.S. 12 (1956)

Engel v. Vitale, 370 U.S. 421 (1962)

Gideon v. Wainwright, 372 U.S. 335 (1963)

Wesberry v. Sanders, 376 U.S. 1 (1964)

Griffin v. County School Board, 377 U.S. 218 (1964)

Griswold v. Connecticut, 381 U.S. 479 (1965) (Dissent)

 

Document Citation
Black, Hugo Lafayette, in Biographical Encyclopedia of the Supreme Court 13 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18975-1014120.
Document ID: bioenc-427-18975-1014120
Document URL: http://library.cqpress.com/scc/bioenc-427-18975-1014120