OF THE 101 MEN who have sat on the Supreme Court of the United States none has greater luster, nor is more controversial, than Hugo LaFayette Black of Alabama. A one-time member of the Ku Klan, he went on to become a fiery champion as a Senator for FDR's New Deal, and was rewarded by President Roosevelt's first appointment to the High Bench.
A man of strong and steely temperament, whose opinions, once formed, were unbending, his tenure on the Supreme Court from the 1930s to the early '70s made him one of the significant influences on the direction and nature of modern judicial lawmaking.It is thus rather odd to realize that Black was also a constitutional anti-quarian, one who believed that it was the Constitution, and not the judges, that was speaking.
Black's view on that point are contrary to most modern scholars and judges. The Supreme Court is indeed, as Woodrow Wilson once said, "a kind of Constitutional Assembly in continous session." Or, as Justice Byron White pointed out in MIrenda v. Arizona, the Court continuosly makes new law and new public policy. Black believed otherwise. He saw in history what others did not; he found historical warrant for conclusions that outraged some of his colleagues, particularly Justices Felix Frankfurter and Robert Jackson, as well as many in the professoriate.
The battles between Black and Frankfurter - both Roosevelt appointees - were monumental, as Professor Gerald Dunne of St. Louis University Law School demonstrates in this well-written, fair-minded biography. Black surely was the winner in the contest, for he gradually won the Court over to the position that the Bill of Rights was a limitation on the states as well as the federal government. That is the "judicial revolution" of which Dunne writes: "a Bill of Rights binding the states to the same substantial degree as it did the nation: a First Amendment shielding preachers and pornographers alike; a right to a lawyer in any criminal trial on American soil; and an electoral calculus of one man, one vote."
Black was the eminence grise to the untried Earl Warren, whose appointment to the Chief Justiceship by President Eisenhower was later called by Ike "the worst damfool mistake I ever made." (The death of Chief Justice Vinson, Warren predecessor, while the Court was deliberating Brown v. Board of Education, the famous school desegration case, led Frankfurter to say that it was the first evidence he had ever seen seen that there was a God.)
This is no starry-eyed encomium to one of better justices of the Supreme Court. Dunne paints Black with some of the warts showing. He does not slight the Klan episode; nor does he gloss over Black's behaviour, at times brutal, as a Senator investigating business during the early New Deal. Dunne labels Black the "Grand Inquisitor" for this part of his career.
Professor Dunne, moreover, discusses albeit rather uncritically - Black validation of blatant racism in Korematsu v. United States , the case involving exclusion of Japanese-Americans from the West Coast during World War 11. Dune calles this Black's "flintlike judicial stance during World War 11" - and it was that, and more Black's upholding of the mass evacuation and "relocation" of Japanese-Americans (plus other cases) in fact politicized the Court; it came perilously close to becoming part of the executive juggernaut. Black legitimized the greatest single deprivation of civil liberties (other than those visited on the Indians) in American history. After the war, he saw things differently. In other words, he saw as tough as anyone who ever sat on the Supreme Court, but he could be compassionate also. But the points is that it was only when the interests of the State were not significantly involved that the man from Alabama came down for civil rights and civil liberties.
Black thus carried water on both shoulders. A complex man, largely self-educated, his decisions toward the end of his long career displayed an acerbity and lack of real understanding of the fundamentals of the Constitution that are not fully analized in this volume. Black, furthermore, seldom had trouble finding a basis for Executive action, save in the famous Steel Seizure Case in which he struck down President Truman's takeover of the steel mills during the Korean War. That opinion, historically wrong, stated the law as the Court saw it, even though there is reason to believe that it was originally written as a dissenting opinion (Dunne does not mention this).
Black's monument was the Bill of Rights, which he almost alone, save for Justice William Douglas, read in absolute terms. I recall a conversation with him in the 1950s, at the end of which I asked what he perceived his job to be as a member of the Supreme Court. Without hesitation, he drew himself up and replied: "To do justice." And that he did, as he saw justice. (His response differs from one attributed to Justice Oliver Wendell Holmes, who once was enjoined by Judge Leaned Hand "to do justice," Holmes, then in his 80s, thundered back Hand (in his 60s): "Sonny, that's not my job. My job is to apply the law.)
The Supreme Court and Constitution are the objects of continiung fascination for Americans. As the London Economist said with reference to the SteelSeizure Case in 1952." At the first sound of a new argument over the United States Constitution and its interpretation, the hearts of Americans leap with a fearful joy. The blood stirs powerfully in their veins and a new lustre brightens their eyes. Like King Harry's men before Harfleur, they stand like greyhounds in the slips," straining upon the start." Black fit that description perfectly, as Dunne shows: "'Hugo liked to win,' an in-law later recalled, 'whether the arena was a political campaign, a courtroom, the Senate floor, the tennis court, or the Supreme Court Conference Room.'" Or, as one of his colleagues on the Court once said, "You can't just disagree with him. You've got to go to war with him."
The Justices are the most important nonelected officials in American government - as witness the ways in which the Nixon appointees are whistling away at the precedents established during Black's tenure. The Nixonites will not ultimately win, for Black built a strong platform for his constitutional philosophy. There can be no better introduction to the Court or the the history of the turbulent period of 1937 to 1971 than this fine biography of one of the better justices in American history.