Justice Hugo Black (1886-1971) – Guest Essayist: Daniel A. Cotter
Hugo Black (1886-1971): The Justice with the Plain Meaning Approach
Hugo Black served more than thirty-four years on the Supreme Court, the fifth longest tenure in the Court’s history. During his time on the Court, Black developed a reputation as a justice who strongly believed the United States Constitution was to be given its plain and original meaning.
Early Life and Career
Black was born on February 27, 1886, in Ashland, a small town in Clay County, Alabama, to Marsha (nee Toland) and William Lafayette Black. Black’s family were farmers. Originally following in his brother’s footsteps, Black attended Birmingham Medical School, but left that school to attend the University of Alabama Law School, where he graduated in 1906 at the age of 20. Upon graduation, Black returned to Ashland and established a private practice, but moved to Birmingham in 1907, where he had greater success in the areas of labor law and personal injury. Black maintained his practice for the next twenty-one years, mixed with brief experiences as a police court judge and as Jefferson County Prosecuting Attorney. Black’s experience as a police court judge was his only judicial experience until he reached the Supreme Court of the United States.
In 1917, Black resigned his prosecutor position to enlist in the United States Army during World War I. He served two years in the Army, achieving the rank of Captain, but did not serve in Europe. After the war ended, Black returned to private practice, where he remained until 1927.
In 1926, Black successfully ran for the United States Senate as a Democrat, easily winning with more than 80% of the vote. In 1932 he won with an even bigger margin. As a Senator, Black was an effective investigator on Senate Committees and was appointed Chair of the Senate Committee on Education and Labor. One of the bills he sponsored eventually became the Fair Labor Standards Act, which was enacted by Congress after Black left the Senate.
At some point during his political activity in Alabama, Black joined the Ku Klux Klan, stating years later, “I would have joined any group if it helped get me votes.” It became a contentious issue in his confirmation hearings.
President Franklin Delano Roosevelt nominated Black to the Court on August 12, 1937, to fill the vacancy created by Justice Willis Van Devanter’s retirement. The Senate had traditionally confirmed judicial nominees without debate since 1853, but because of concerns about Black’s alleged bigotry and rumors of his KKK involvement, his nomination was referred to the Senate Judiciary Committee. On August 16, the Judiciary Committee recommended Black’s nomination, and on August 17, the Senate voted, 63-16, to confirm Black. (At the time of the vote, the Senate did not have conclusive evidence of Black’s KKK membership.) Black took his seat on August 19, 1937, as the 76th Justice of the U.S. Supreme Court and third from Alabama.
Black sat on the Court until his retirement on September 17, 1971, eight days before his death. For the last twenty-five years on the bench, Black was the Senior Associate Justice. From the time he joined the Court, Black advocated judicial restraint and his view was that the Supreme Court’s role was limited and proscribed. Black was also considered to be a textualist and strict constructionist, and perhaps no other justice ascribing to those methods was more true to form than Black. His strict constructionist approach was most apparent in his interpretation of the First Amendment. Reading the words, “Congress shall make no law” literally, Black rejected any judicial tests that would limit free speech, asserting that no federal agency had any power to abridge First Amendment rights. In New York Times Co. v. United States, Black concurred, stating:
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 Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. 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. …The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.
New York Times Co. v. U.S., 403 U.S. 713, 717 (1971).
Black also believed strongly in judicial restraint, and his approach to Congressional and Executive powers is fully revealed in his majority opinion in Korematsu v. U.S., a case in which the Supreme Court upheld the interment of the Japanese during World War II. Black stated:
To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that, at that time, these actions were unjustified.
Korematsu v. U.S., 323 U.S. 214, 223-24.
Black considered his opinion in Adamson v. California the most significant of his many decisions. Adamson involved the question of whether the Fifth Amendment should be incorporated through the Fourteenth Amendment to apply to the states. Black was of the view that the Bill of Rights should be incorporated in its entirety and in Adamson, he dissented from the majority opinion holding that the rights of the Fifth Amendment do not apply to state courts based on the due process clause of the Fourteenth Amendment, asserting:
My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed, its submission and passage 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.
Adamson v. California, 332 US 46, 71-72 (1947).
Black’s adherence to judicial restraint and strict construction led to what appears to be incongruous decisions. While he issued the Korematsu decision for the Supreme Court, he also was part of the unanimous Court in Brown v. Board of Education. Black dissented from the Court’s decision in Griswold v. Connecticut, which held that married couples’ privacy rights invalidated contraception prohibitions, arguing that the Constitution was not a “living constitution” and that the way to change the Constitution was by amendment.
According to www.historynet.com, Hugo Black is one of the nine greatest justices who have served on the Supreme Court; the site groups Black with Justices John Marshall Harlan and Joseph Story as the “Three Towering Visionaries.” His majority and dissenting opinions have been referenced frequently by subsequent Courts and justices and much of his First Amendment jurisprudence has become the majority view.
Dan Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else.