Hugo L. Black

Associate justice of the United States (1937-1971)

• Born: February 27, 1886
• Birthplace: Harlan, Alabama
• Died: September 25, 1971
• Place of death: Bethesda, Maryland

As a U.S. Supreme Court associate justice, Black sought to define and in some areas extend constitutional protection of civil liberties, while delineating the prerogatives of government; for more than one-third of a century, he propounded the absolute inviolability of the Constitution as the basis of the nation’s jurisprudence.

Early Life

Hugo L. Black was the youngest of eight children. His father, William L. Black, was a country storekeeper who surrendered periodically to bouts of secret drinking; his mother, Martha Toland Black, from a well-bred family, was the village postmistress. From the age of six, the young Hugo attended trials at the Clay County courthouse in Ashland. He was educated for a while at Ashland Academy. He attended Birmingham Medical College for one year and, at the age of eighteen, enrolled at the University of Alabama. By virtue of his excellent academic record, Black was granted early admission to the law school and was graduated with the university’s LL.B. degree in 1906.

Black began his practice in Birmingham, where he pleaded labor cases and damage suits. He served briefly as a judge on the city’s police court; in 1914, he was elected the county solicitor, or prosecutor. Increasingly, he came to oppose, and sometimes took action against, the summary and forcible extraction of confessions from suspects. During World War I, Black enlisted in the Army and, although he was not called for combat duty, he was discharged as a captain in the field artillery. On his return to civilian life, he resumed his law practice in Alabama; in 1921, he married Josephine Foster, the daughter of a Presbyterian minister, whose lovely dark features had attracted him. During the next twelve years, they became the parents of two sons and one daughter.

Black gave the impression of formidable tenacity and reserve. He was five feet, eight inches tall and wiry; his features were distinguished by his sharp, hooked nose and piercing blue eyes. He spoke in a gentle, melodious drawl that could be sharpened by interrogatory tones or softened with personal warmth. He had a brisk, energetic gait and, for recreation, played a vigorous game of tennis.

Life’s Work

While in private practice, Black occasionally had taken cases of white clients against blacks; as his political ambitions grew, he joined a number of civic organizations. In 1923, he made a decision that later seemed fraught with fateful implications: He became a member of the Ku Klux Klan . It may have been that for a time he was attracted by the Klan’s populist appeal, or that he recognized its political strength; he spoke to several meetings of the Klan and then, less than two years later, withdrew abruptly and unceremoniously. Black first emerged into national political prominence in 1926, with a spirited campaign that won for him a seat in the United States Senate. During the early years of the Depression, Black sponsored legislation to promote public works programs and called for a national thirty-hour workweek. In 1932, he won reelection on a platform of broad support for the national Democratic Party and its presidential candidate, Franklin D. Roosevelt. Although he would not risk public disfavor on issues on which his home state was sensitive, such as a proposed antilynching law or the sensational Scottsboro rape cases, Black became nationally known as the chair of major Senate investigations of public utilities and airmail contracts. Moreover, though he differed with the Roosevelt administration on some economic proposals, he roundly condemned the Supreme Court’s rulings against New Deal legislation. Black became an early and staunch proponent of the administration’s proposal that would allow the president to appoint additional justices to sit alongside those on the Court who had passed the age of seventy. Much as this measure divided even the Democratic Party, Black’s standing in the Senate, and his broad agreement with the administration on economic and judicial matters, were vital considerations when Roosevelt nominated him, in 1937, to succeed retiring Supreme Court Justice Willis Van Devanter. While Black was confirmed easily enough the same year, questions about his Klan affiliation persisted and grew. In response to allegations in newspaper stories, the new justice delivered a brief and compelling statement, which reached millions of radio listeners, disavowing any connection with that organization since his resignation twelve years before.

Expectations that Black would be intellectually unsuited for the Court, or that he would act merely at the administration’s behest, were gradually shown to be unfounded. In spite of an education that was limited and exiguous when compared with those of other justices, Black was a fervent autodidact, and even during his years in Washington he had read widely in constitutional law; philosophy; American, British, and ancient history; and the social sciences. During his early years on the Court, Black evinced a basic support for the government on questions of antitrust and held with the administration on controversial economic issues. Questions of civil liberties were enlivened when he wrote the Court’s opinion in Chambers v. Florida (1940), which invalidated a criminal confession obtained during incommunicado confinement. In Betts v. Brady (1942), writing for himself and two colleagues, he contended that indigent defendants should not be convicted without the benefit of counsel. On the other hand, in Korematsu v. United States (1944), he held for the Court that wartime circumstances justified the forcible resettlement of Japanese Americans.

Black frequently found with a minority in cases that heralded the onset of the Cold War. In several notable dissents he maintained that communists and other radicals were entitled to the constitutional protection of free speech. In Dennis v. United States (1951), he argued in dissent that mere speech, albeit of an admitted communist, could not be proscribed as inciteful or tending to overthrow the government. Elsewhere, Black opposed loyalty oaths or other limitations on the civil liberties of avowed communists. In another celebrated dissent, Beauharnais v. Illinois (1952), he contended that the states could not abridge the freedom of speech by attempting to suppress white supremacist literature. On another front, in 1952, Black wrote the Court’s opinion in ruling against President Harry S. Truman’s use of government force to curtail strikes in the steel industry. Trying times on the bench were made more difficult by the early and unexpected death of Black’s wife in 1951. His outlook undoubtedly improved with his remarriage, to Elizabeth De Meritte, six years later.

After Earl Warren became chief justice, in 1953, the Court as a whole took a more expansive view of the civil liberties that Black had defended; other troubling issues also came before it. Justice Black held with the Court in Brown v. Board of Education (1954), the landmark decision that struck down racial segregation in public schools. Black’s own concern for freedom of expression was further stated in Konigsberg v. State Bar of California (1957), in which he held for the majority that political affiliations, such as possible membership in the Communist Party, did not constitute grounds for an applicant’s exclusion from the practice of law. Black’s objections to other limitations on the freedom of speech were reflected in his opinions in cases of alleged obscenity, such as a New York case of 1959, involving the film version of D. H. Lawrence’s novel Lady Chatterley’s Lover (1928). Black believed that the First Amendment afforded extensive protection against claims of libel, and he found with the majority in the celebrated case of The New York Times Co. v. Sullivan (1964); he also did not consider massive adverse publicity grounds for retrial in criminal cases, and thus he dissented when such a case, involving Dr. Sam Sheppard of Ohio, was brought before the Court in 1966.

Black was often regarded as a moving spirit in many of the Court’s libertarian decisions, and, to nearly the same extent as Chief Justice Warren, his guidance was provided in controversial decisions. Black wrote for a majority on the Court when he found the sponsorship of prayer in public schools unconstitutional, in Engel v. Vitale (1962); in a matter of recurrent concern to him, the right of poor defendants to legal representation, he wrote the Court’s opinion in Gideon v. Wainwright (1963). Nevertheless, though there and elsewhere Black upheld the rights of criminal defendants, he dissociated himself from other decisions thought to be part of a liberal trend on the Court. He did not believe that public demonstrations or sit-ins, whether to promote racial equality or for other purposes, were speech in the strict sense, and thus he differed from his colleagues in holding that they were not protected by the Constitution. In Griswold v. Connecticut (1965), he dissented from the Court’s view that a right of privacy extended to married couples using contraceptives. Claims of increasing conservatism, or discomfiture with modern times, were bruited about, but Black persistently maintained that his constitutional faith was unchanged. His last official act on the Court was a separate opinion in the New York Times v. United States or Pentagon Papers case of 1971, in which he contended that the public had a right to know about the origins of a controversial war; the First Amendment precluded any exercise of prior restraint on the part of the government. For some time failing health had taken its toll, and at the age of eighty-five, Black suffered a sharp decline. On August 27, 1971, he was admitted to Bethesda Naval Hospital; on September 17, his resignation from the Court was formally tendered; and on the next day, he suffered a stroke, from which he died on September 25, 1971.

Significance

Black served under five chief justices; during his tenure on the bench, vital questions of the New Deal, the Cold War, and the Civil Rights movement came before the Court. Throughout this period, Black formulated and repeatedly maintained his adherence to a specific and distinct view of constitutional law. In his many opinions, presented for the most part in a clear, direct, unvarnished style, Black held that a literal reading of the Constitution bound the nation’s highest court to uphold civil liberties even, as arose with claims of libel and obscenity, in unusual and improbable contexts. On the other hand, Black increasingly objected to any legislative function on the part of the Court and rejected any implied doctrines that were not clearly stated in the Constitution itself. From this standpoint, it is useful to note Black’s long-standing debate with Justice Felix Frankfurter, who referred to other criteria, such as the balancing of rights and obligations, or the nation’s conscience, in deciding difficult cases. Black’s libertarian strain led him often to side with Justices Frank Murphy and, particularly, William O. Douglas; yet he maintained that beyond those rights clearly granted in the Constitution there were limitations, and toward the end of his term Black found the views of Chief Justice Warren E. Burger congenial.

It is a measure of Black’s importance in American jurisprudence that, though many of the cases and concerns with which he dealt have receded from public attention, the views he espoused still command respect. There will continue to be some dispute as to whether the resolution of modern dilemmas actually is implicitly stated in the Constitution. Some of Black’s opinions decidedly would find more present-day adherents than others, yet his simple but forthright reading of the Constitution must still be reckoned an important force in modern legal thought.

Bibliography

Ball, Howard. The Vision and the Dream of Justice Hugo L. Black: An Examination of a Judicial Philosophy. Tuscaloosa: University of Alabama Press, 1975. Topical examination of Black’s opinions by an admiring scholar; social relations and the economy are dealt with as well as the justice’s better-known positions on civil liberties. Argues that there is a broad consistency to Black’s opinions, both in various areas of the law and over the thirty-four years he was on the Court.

Black, Hugo. A Constitutional Faith. New York: Alfred A. Knopf, 1969. Succinct statement of Black’s judicial philosophy, taken from lectures at Columbia University. His views on the states’ obligations under the Bill of Rights and the Fourteenth Amendment, as well as his determination to uphold the First Amendment in applicable cases, are set forth in a clear, trenchant fashion.

Black, Hugo, Jr. My Father: A Remembrance. New York: Random House, 1975. Breezy, offhand account of Justice Black’s life by his son. The most useful parts of this work concern the elder Black’s personal and professional relations with others on the Court, notably Felix Frankfurter and William O. Douglas. The younger Black also depicts vividly the hostility and bitterness with which the Court’s decisions on racial issues were received in his father’s native state.

Black, Hugo L., and Elizabeth S. Black. Mr. Justice and Mrs. Black. New York: Random House, 1986. This book comprises Black’s fragmentary memoirs, which discuss his life and career until 1921, an interstitial explanatory passage, and the diaries of Elizabeth Black from 1964 until Hugo’s death in 1971. Elizabeth Black’s remarks show much about the justice’s vitality and commitment to his work on the Court; personal asides indicate his devotion as husband. There is also a touching portrayal of his final illness and last months.

Dunne, Gerald T. Hugo Black and the Judicial Revolution. New York: Simon & Schuster, 1977. Thorough and panoramic biography that strikes a judicious balance between the legal and the personal elements in Black’s career on the Court. The political and historical context of his most notable opinions is set forth; relations with other justices reveal the extent to which Black shaped, or was affected by, the Court’s positions on controversial issues.

Frank, John P. Inside Justice Hugo L. Black: The Letters. Austin: Jamail Center for Legal Research, University of Texas, Austin, 2000. Frank, one of Black’s former law clerks, provides this portrait of his former boss based on their twenty-five-year correspondence.

Hamilton, Virginia Van Der Veer. Hugo Black: The Alabama Years. Baton Rouge: Louisiana State University Press, 1972. Lively, colorful account that traces the offsetting influences of principle and expediency in Black’s early legal work and political career. This work provides the most substantial examination of his brief membership in the Ku Klux Klan and provides extensive coverage of his service in the U.S. Senate. Collections of documents and newspapers that are important for the history of Alabama have been used to advantage here.

Magee, James J. Mr. Justice Black: Absolutist on the Court. Charlottesville: University Press of Virginia, 1980. A critical assessment of Black’s opinions, notably his interpretation of the Bill of Rights, and particularly the First Amendment. This study points out the difficulties of settling intricate modern cases by a literal construction of the Constitution; nevertheless, Black’s efforts in this direction have enriched the nation’s legal culture.

Strickland, Stephen Parks, ed. Hugo Black and the Supreme Court: A Symposium. Indianapolis, Ind.: Bobbs-Merrill, 1967. Studies by nine legal scholars, examining Black’s positions on civil liberties, the New Deal, federal taxation, antitrust, and federal civil procedures. The editor concludes that Black may not easily be characterized as liberal or conservative; his extraordinary contribution has been to demonstrate the vitality of the Constitution during the modern age.

Suitts, Steve. Hugo Black of Alabama: How His Roots and Early Career Shaped the Great Champion of the Constitution. Montgomery, Ala.: NewSouth Books, 2005. Recounts Black’s life and career before he was elected to the U.S. Senate in 1927, focusing on the influences that shaped him. Includes discussion of the politics of his home state, his family, his experiences as a trial lawyer, and his membership in the Ku Klux Klan.