Black, Hugo L. (1886–1971)

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BLACK, HUGO L. (1886–1971)

When Hugo LaFayette Black was appointed to the Supreme Court in 1937, the basic tenets of his mature judicial philosophy had already been formed. Born in the Alabama hill country in 1886, Black received his law degree from the University of Alabama in 1906. He practiced law, largely handling personal injury cases, in Birmingham during the next twenty years and served brief terms as police court judge and county prosecutor. In 1926 he was elected to the United States Senate; after reelection in 1932 he became an outspoken advocate of the new deal and a tenacious investigator. Throughout his career he read extensively in history, philosophy, and literary classics. From thomas jefferson he took his view of the first amendment. Aristotle, his "favorite author," and john locke offered appealing theoretical perspectives on the nature of government and society.

Coming to the bench in the aftermath of President franklin d. roosevelt'scourt-packing plan, which he vigorously espoused, Black searched for a jurisprudence of certainty, seeking clear, precise standards that would limit judicial discretion, protect individual rights, and give government room to operate. He saw the Constitution as a set of unambiguous commands designed to prevent the recurrence of historic evils. In its text and the intent of its Framers he found the authority for applying some provisions virtually open-ended, and others rather more strictly. All constitutional questions he considered open until he dealt with them; but when he came to a conclusion, he maintained it with single-minded devotion. His opinions never suggested that he entertained any doubts.

Black's Senate years left an indelible impression on his performance as Justice. Each of the popular branches must be left to carry out its duties according to the original constitutional understanding. Congress makes the laws, he noted in youngstown sheet & tube company v. sawyer (1952); the President's functions are limited to the recommending and vetoing of bills. Congress, Black believed, had the power to regulate whatever affected commerce. Likewise, unless states discriminated against interstate commerce, they had the power to regulate in the absence of contrary congressional direction. Nor, under the due process clause of the fourteenth amendment, might courts consider the appropriateness of legislation. In Lincoln Federal Labor Union v. Northwestern Iron & Metal Company (1949), he observed that the Court had rejected "the Allgeyer-Lochner-Adair-Coppage constitutional doctrine"; the states had power to legislate "so long as their laws do not run afoul of some specific federal constitutional provision, or of some valid federal law."

Black's adamant refusal to expand judicial power through the due process clause forced him to develop an alternative theory to protect the rights enumerated in the bill of rights. He had to overcome his initial "grave doubts" about the validity of judicial review. chambers v. florida (1940) was an early milestone. Courts, he stated in that case, "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." Finally, in Adamson v. California (1947), he laid down the formulation that guided him for the rest of his 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 concepts 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 his 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.

Only by limiting judges' discretion, and demanding that they enforce the textual guarantees, could the protection of these rights be ensured. Black feared that the "shock the conscience" test, which Justice felix frankfurter employed for the Court in Rochin v. California (1952), with its "accordion-like qualities" and "nebulous" and "evanescent standards," "must inevitably imperil all the individual liberty safeguards specifically enumerated in the Bill of Rights."

Black applied his incorporation doctrine in scores of cases. From his early days as a public official he hated coerced confessions, and he viewed police interrogations without counsel as secret inquisitions in flat violation of the fifth amendment's guarantee of the right against self-incrimination."From the time government begins to move against a man," he said when the Court considered miranda v. arizona (1966), "when they take him into custody, his rights attach." He led the Court in expanding the right to counsel from his first term, when he held in johnson v. zerbst (1938) that in a federal prosecution counsel must be appointed to represent a defendant who cannot afford to hire an attorney. To his supreme satisfaction he wrote the opinion in gideon v. wainwright (1963), overruling betts v. brady (1942) and making similar assistance mandatory in state felony trials. More of his dissents eventually became law than those of any other Justice.

Given his approach of allowing free play to the spirit of the Constitution while resting his justifications largely on its words, the generalities of the equal protection clause presented problems of interpretation for Black. In his view, Article I conferred on qualified voters the rights to vote and to have their votes counted in congressional elections. Dissenting in colegrove v. green (1946), he argued 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." Black formally buried Colegrove in wesberry v. sanders (1963). In every reapportionment case, as in every case involving an indigent prosecuted for crime, he supported the equal protection claim. He shared in the widespread agreement that the Fourteenth Amendment had been designed primarily to end racial discrimination, and made the first explicit reference to race as a suspect classification which must be subjected to the "most rigid scrutiny." Ironically, this came in one of the japanese american cases (1943), in which he upheld, over biting dissents, a conviction for violating a military order during world war ii excluding all persons of Japanese ancestry from the West Coast. But as the Court moved beyond race in applying the equal protection clause, Black refused to follow. Classifications based on wealth or poverty were not "suspect"; and even though the claims in voting rights cases were essential for the democratic process to reach its full potential, he denied them.

During the first twenty-five years of his tenure, Black's opinions had remarkable constancy as he unflaggingly pursued his goal of human advancement within the bounds of constitutional interpretation. But new issues confronted the Court and the country in the 1960s. Black was fighting old age, and Court work, he admitted, was harder. Because of cataract operations he did not read nearly so much as he had. References in his opinions to books and articles became infrequent, and the cases he cited were often his old ones as he repeatedly accused his colleagues of going beyond their province. No longer was he reading the words of the Constitution expansively; his interpretations were restraining and cramped; and his categories of permissible legal action narrowed. Increasingly, he had trouble adjusting to a world that was changing. His opinions took on an essay-like quality, with a new structure and tone, and a note of anger crept into them.

From the beginning Black consistently interpreted the fourth amendment as restrictively as any Justice in the Court's modern history. Refusing to examine the term "unreasonable" in search and seizure cases, he generally accepted law enforcement actions. Almost invariably he validated warrantless searches including searches incident to arrest. His Fourth Amendment opinions emphasized the guilt of the accused, often starting with detailed descriptions of the crime; and, oddly, he ignored the amendment's rich history. After calling the exclusionary rule "an extraordinary sanction, judicially imposed," in United States v. Wallace & Tiernan Company (1949), he changed his mind: by linking the Fourth and Fifth Amendments in mapp v. ohio (1961), he found that "a constitutional basis emerges which not only justifies but actually requires" the rule. But his enthusiasm waned as the Court enlarged the fourth amendment's scope. In his last search and seizure case, coolidge v. new hampshire (1971), he converted this limitation on government into a grant of power: "The Fourth Amendment provides a constitutional means by which the Government can act to obtain evidence to be used in criminal prosecutions. The people are obliged to yield to a proper exercise of authority under that Amendment."

By the time the right of privacy matured as an issue, Black had tied himself to the text as a mode of constitutional interpretation. Two heated dissents indicated his narrow conception of the Fourth Amendment. Seemingly oblivious to the dangers of wiretapping, he wrote in berger v. new york (1967): "Had the framers of this amendment desired to prohibit the use in court of evidence secured by an unreasonable search and seizure, they would have used plain appropriate language to say that conversations can be searched and words seized.…" Finding no mention of privacy in the Constitution, he dismissed it as a "vague judge-made goal" and denigrated it: "the "right of privacy' …, like a chameleon, has a different color for every turning," he wrote in Berger. He accurately viewed its elevation to separate constitutional status in griswold v. connecticut (1965) as the revival of substantive due process."Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention." Black rejected the idea of a living Constitution. His Adamson dissent not only had expanded horizons but had set limits.

Black was most famous for his views on the First Amendment. In Milk Wagon Drivers Union v. Meadowmoor Diaries (1941), his initial opinion on the subject, he said, "Freedom to speak and write about public questions … is the heart of our government. If that be weakened, the result is debilitation; if it be stilled, the result is death." He ceaselessly implored the Court to expand the amendment's protections, and embellished his opinions with moving libertarian rhetoric. But as in other areas during his last half-dozen years or so, Black narrowed his construction and retreated from many of his previous positions.

He subscribed fully to the "preferred position" doctrine of the First Amendment. He used, and reworked, the clear and present danger test in bridges v. california (1941), adding words that he repeated often: "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." But slowly "clear and present danger," with its inherent balancing of disparate interests, disillusioned Black. The First Amendment "forbids compromise" in matters of conscience, he argued in american communications association v. douds (1950). The "basic constitutional precept" is that "penalties should be imposed only for a person's own conduct, not for his beliefs or for the conduct of those with whom he may associate"; those "who commit overt acts in violation of valid laws can and should be punished."

A new word began to appear as his opinions, invariably in dissent, grew more shrill and strident. "I think the First Amendment, with the Fourteenth, 'absolutely' forbids such laws without any 'ifs' or 'buts' or whereases," he wrote when the Court upheld a group libel statute in beauharnais v. illinois (1952). The First Amendment "grants an absolute right to believe in any governmental system, discuss all governmental affairs, and argue for desired changes in the existing order," he proclaimed in Carlson v. Landon (1952)—"whether or not such discussion incites to action, legal or illegal," he added in yates v. united states (1957). He refined this speech-conduct distinction in barenblatt v. united states (1959). Some laws "directly," while others "indirectly," affect speech; when in the latter cases the speech and action were intertwined, Black was willing to use a balancing test weighing "the effect on speech … in relation to the need for control of the conduct."

For many years Black voted to invalidate statutes as direct abridgments of First Amendment rights. He opposed such governmental actions as prescribing loyalty oaths in wieman v. updegraff (1952); promulgating lists of "subversive" organizations in joint anti-fascist refugee committee v. mcgrath (1952); demanding organizations' membership lists in gibson v. florida legislative investigation committee (1963); conducting legislative investigations of suspected subversives in barenblatt v. united states or prosecuting for subversive advocacy in dennis v. united states (1951); and imposing penalties for Communist party membership in aptheker v. secretary of state (1965). Under his standard, obscenity and libel laws as well as the state's conditioning admission to the bar on an applicant's beliefs were unconstitutional. In cases of direct abridgment of speech, Black charged in uphaus v. wyman (1960), any balancing test substituted "elastic concepts" such as "arbitrary" and "unreasonable" for the Constitution's plain language, reducing the document's "absolute commands to mere admonitions." "Liberty, to be secure for any," he wrote in Braden v. United States (1961), "must be secure for all—even for the most miserable merchants of hated and unpopular ideas." The framers had ensured that liberty by doing all the balancing that was necessary.

Black was equally outspoken in religious liberty cases, and played a key role in the development of the First Amendment's religious guarantees. He wrote the Court's opinion in everson v. board of education (1947), the first case declaring that the establishment clause applied to the states. After listing the clause's standards and stating that it was intended to erect, in Jefferson's words, "a wall of separation between Church and State," Black noted that government cannot "contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church." But for the state to pay the bus fares of all pupils, including those in parochial schools, served a secular purpose, and did not violate the establishment clause. In mccollum v. board of education (1948), writing for the Court, he held unconstitutional a released time program in which religious instruction took place in a public school. In the school prayer case of engel v. vitale (1962), of all his opinions the one that produced the most vocal opposition, Black concluded that a state-sponsored "non-denominational" prayer was "wholly inconsistent" with the establishment clause. The clause prohibited any laws that "establish an official religion whether [they] operate directly to coerce non-observing individuals or not." Religion, he wrote, "is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate."

The direct action cases in the mid-1960s tested Black's First Amendment philosophy. He expounded the limitations that trespass and breach of the peace statutes placed on freedom of speech. Earlier, he had held, in giboney v. empire storage and ice company (1949), that legislatures could regulate picketing, but in Barenblatt he noted that they could not abridge "views peacefully expressed in a place where the speaker had a right to be." "Picketing," he now wrote in Cox v. Louisiana (1965), "though it may be utilized to communicate ideas, is not speech, and therefore is not of itself protected by the First Amendment." This was a very different Black from the one who in feiner v. new york (1951) labeled the Court's decision sanctioning police action to silence a speaker as "a long step toward totalitarian authority."

New emphases emerged. The ownership of property became pivotal. A property owner, 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. The rule of law now took precedence over encouraging public discourse and protest. Focusing on maintaining "tranquility and order" in cases like Gregory v. Chicago (1969), Black deprecated protesters who "think they have been mis-treated or … have actually been mistreated," and their supporters, who "do no service" to "their cause, or their country." Gone was much of his former admiration of dissenters, toleration of the unorthodox, and receptivity toward new ideas.

Nonetheless, Black remained uncompromising in protecting freedom of the press. In his view the people had the right to read any books or see any movies, regardless of content. In his final case, new york times v. united states (1971), he reexpressed his faith:

Both 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.
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.… The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

Three months later he was dead.

Black is one of the handful of great judges in American history, second only to john marshall in his impact on the Constitution. Certain of his premises, and convinced that he and history were at one, he was a tireless, evangelical, constitutional populist. If the Court did not accept his most sweeping doctrines whole, it accepted them piece by piece. Incorporation stands as his monument, but equally enduring is his preeminence in sensitizing a whole generation to the value of the great freedoms contained in the Bill of Rights.

Roger K. Newman
(1986)