A month after the US Senate confirmed the appointment of Hugo L. Black as an associate justice to the US Supreme Court, the Pittsburg Post-Gazette newspaper published a series that became front-page news across the nation. It exposed Black’s past membership in the Ku Klux Klan in Alabama. There was a national uproar, led by anti-New Deal newspapers, and it lasted for weeks while Justice Black was vacationing in Europe with his wife, Josephine.
Black refused demands that he resign. In a national radio address, the first ever delivered by a member of the Supreme Court, Black explained that his public record showed he abhorred racial and religious intolerance. He acknowledged he had joined the Klan and later resigned. A week later, on his first day sitting as a member of the Supreme Court, lawyers attempted unsuccessfully attempted to have Black disqualified from serving.
Less than 4 months after joining the Court, Black issued a dissenting opinion in Conn. General Life Insurance Company v. Johnson (1937). Black wrote:
I do not believe the word ‘person’ in the Fourteenth Amendment includes corporations… Certainly, when the Fourteenth Amendment was submitted for approval, the people were not told that the states … ratified an amendment granting new and revolutionary rights to corporations.
This amendment sought to prevent discrimination by the states against classes or races… Yet, of the cases in this Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of 1 per cent invoked it in protection of the Negro race, and more than 50 per cent asked that its benefits be extended to corporations.
“Courts Stand against the winds that blow as havens of refuge”
Early in his judicial career, Black also spoke for the Court in establishing constitutional protections for the poor and vulnerable – a primary theme of his days as a prosecutor in Birmingham. He issued the Court’s opinion in Johnson v. Zerbst (1938), holding that a lawyer must be appointed to represent a defendant who cannot afford to hire an attorney in federal criminal cases. In Chambers v. Florida (1940), Black’s opinion overturned a state court conviction of four black defendants sentenced to death after coerced confessions. In oft-repeated, memorable language, Black 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 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
Black was not as successful during his early years in convincing the Court to require states to provide legal counsel in state felony trials. In Betts v. Brady (1942), Black dissented arguing that a state’s failure to provide a lawyer to defendants in such cases violated the US Constitution. (Two decades later, Black would prevail on the issue when he wrote for a unanimous Court in Gideon v. Wainwright the right to counsel in criminal prosecutions is guaranteed by the Sixth Amendment of the Constitution.)
Black joined with new members of the Court also appointed by President Roosevelt to sustain the regulatory powers of the New Deal federal government in addressing the economic problems of the American people. He joined the Court’s unanimous decisions rejecting a challenge to the Fair Labor Standards Act in United States v. Darby Lumber Co. (1941) and in Olsen v. Nebraska (1941), he joined a majority of the Court upholding a state statute fixing the maximum fee that an employment agency could collect from employees. In National Labor Relations Board v. Waterman Steamship Corp. (1940), Black wrote for the Court that federal courts could not substitute their judgment for that of the national labor relations board in matters concerning unfair labor practices.
In 1947, 10 years after arriving on the Court, Justice Black wrote a dissent that would in time help to nationalize individual rights across America. In Adamson v. California (1947), joined only by Justice William Douglas, Black laid out his understanding of the Bill of Rights:
The first ten amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties… [This Court has] said that it could not hold that the first eight amendments applied to the states. My study of the historical events… persuades me that one of the chief objects was to make the Bill of Rights applicable to the states.
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.
By this time in his judicial career, Black had established his judicial philosophy, which held that the Constitution and especially its Bill of Rights (the first ten amendments) were written to assure that the nation avoided the identifiable “ancient evils” of Europe that immigrants came to this country to escape. Black’s approach in applying the Constitution involved his reading the exact words the Constitution as well as searching through the nation’s early documents and original writings to understand the intent and meaning of the Constitution.
Over the next 25 years of Black’s tenure, the Court gradually came to apply most of the Bill of Rights to state and local governments, although it never accepted his way of understanding and interpreting of the Constitution…
Also, in 1947, Justice Black began to take a larger role in shaping the Court’s doctrine about the First Amendment concerning religion and government. He wrote the Court’s opinion in Everson v. Board of Education of Ewing Township (1947). In it Black quoted Thomas Jefferson concerning how the First amendment erected “a wall of separation between Church and State.”
Shortly afterwards, in Illinois ex rel. McCollum v. Board of Education (1948), Black wrote for the Court that it was unconstitutional for a public school to release students to receive religious instruction. Fourteen years later, Justice Black wrote Engel v. Vitale (1962) holding that the First Amendment’s “wall of separation” prohibited school officials from having a state-sponsored “non-denominational prayer” in public schools. He wrote: “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.”
Justice Black holds another unique place in the long history of US Supreme Court: he is the only justice who has consistently expressed the view that the First Amendment sets up an absolute prohibition against abridging free speech. In 1951, he dissented in Dennis v. United States (1951) expressing the view that it was unconstitutional for a federal statute to make it a crime to advocate the overthrow of the government. Black’s persistent objected to government investigations and prosecutions of so-called un-American activities in the 1950s. In Black’s view, they violated the rights of free speech and freedom from self-incrimination.
This dark period in US history was also a sorrowful time for Justice Black personally. His wife, Josephine, died suddenly in 1951. (Black would marry again in 1957 to Mary Elizabeth Seay DeMerritte of Birmingham.) Over time, Justice Black powerful voice about the First Amendment freedoms helped to guide the nation and the Court to reject the McCarthy era’s hysteria about “subversive activities.”
Justice Black’s absolute position on the freedom of speech also included protections for what people considered obscenity and pornography. For instance, he dissented in Roth v. United States (1957) where he joined Justice Douglas in arguing that that even “prurient” materials were entitled to absolute First Amendment protection.
Later Justice Black’s absolutist stance became problematic as he attempted to apply his doctrine in changing times. For example, he did not think that symbolic gestures were necessarily “speech.” Late in his tenure, in Tinker v. Des Moines Independent Community School District (1969), Black dissented from the Court’s decision that the First Amendment protected the right of high school students to wear black armbands in school as a protest of U.S. involvement in Vietnam.
In 1954, Justice Black joined in the Supreme Court’s unanimous opinion outlawing racial segregation in public education in Brown v. Board of Education (1954). The decision destroyed the legal basis of American segregation. Soon afterwards, Black’s name and the words “traitor to the South” became synonymous in the Southern demagogue’s political dictionary.
Black did not yield in his insistence that Southern public schools could not maintain segregation – even by hook or crook. In Griffin v. County School Board (1964), for example, Black enforced Brown by holding that a county school board’s actions to close its public schools and support private segregated schools through tax credits and vouchers were unconstitutional.
“The time for mere ‘deliberate speed’ has run out,” he wrote for the Court, “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 authorized the trial court to close all the schools in Virginia if the public schools in Prince Edwards were not reopened and desegregated.
Also, Justice Black helped lead the Supreme Court in protecting and advancing the citizens’ right to vote. When the Court declared in Colegrove v. Green (1946) that voting and creating district lines for government were a “political thicket” that the Court could not enter, Black dissented arguing that the Court had a paramount duty to protect fundamental rights wherever the Constitution was violated.
He insisted that both Article I and the equal protection clause of the 14th Amendment required congressional district lines be drawn “to give approximately equal weight to each vote cast.” Over time, Black’s views won a Court. In Gomillion v. Lightfoot (1960), the Court held that that white officials in Tuskegee could not constitutionally redraw the city’s boundaries to exclude black voters. By 1964, the Court expressly overruled the Colegrove opinion. In Wesberry v. Sanders (1964), Black wrote: “The right to vote is too important in our free society to be stripped of judicial protection…”
Not all of Black’s opinions are remembered for protecting civil rights and civil liberties. He wrote the majority opinion in Korematsu v. United States (1944), which upheld during World War II the Japanese-American internment that had taken place earlier. After the opinion, scholars proved that army officials had no reliable evidence proving that the Japanese Americans on the west coast had posed a real threat to US security.
Due to his literal interpretation, Justice Black also found no words in the Constitution providing a constitutional right to privacy, and he voted against finding any such federal right in Griswold v. Connecticut (1965), which struck down a Connecticut law banning the use of contraception.
Black famously carried a pocket Constitution in later years and consulted it often…
Black famously carried a pocket Constitution with him in later years and consulted it often in conversations and in conferences with other justices. As a literalist who believed that “Congress shall make no law” meant “Congress shall make no law,” the Justice said since he always wanted to quote the Constitution’s exact language, he kept a copy in his pocket.
In his last major opinion on the Court, Black’s literal devotion to the First Amendment and its mandate for a free press provide him the opportunity to author one of the opinions in New York Times Co. v. United States (1971), which rejected the government’s prior restraint of the publication of the Pentagon Papers by the New York Times and Washington Post. Black wrote that “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.”
On September 17, 1971, Black resigned from the Court at the age of eighty-five. He died eight days later after suffering a massive stroke. During Black’s 34 years on the nation’s highest court, America was re-born as a nation whose Constitution commanded the outlawing of racial segregation and the enforcement of the Bill of Rights as a guarantee against government encroachment by all levels of government.
Justice Black was buried in Arlington Cemetery, next to his first wife, Josephine. (His second wife was later also buried there.) Between the couple’s two modest grave markers stands a marble bench proclaiming only: “Here lies a good man.”
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