2 Things to Love About Alabama: Justice Hugo Black — “the most remarkable Justice of the 20th century”

Ashland’s Hugo Black may be one of the most complicated persons you’ll ever encounter. If you thought Sweet Home Alabama was contradictory, you ain’t seen nothing yet.

I apologize for the length here, but perhaps you will find this as fascinating as I do.

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One of eight children, Black was an intellectually gifted child born to a prosperous merchant family in 1886. At age 6, he would go to court and watch the lawyers argue their cases, mentally critiquing the questions they asked and the arguments they presented. He began reading at a very young age, and was an advanced learner well before he even began formal education. When he was just 17, he began his education in medical school at what is now UAB. But, his mind always returned to the law. And he quit med school and began studies in the subject that always fascinated him — graduating from the University of Alabama School of Law in 1906 at just 20 years old.

After trying (and failing) at private practice in Ashland, Black moved to Birmingham where he caught his lucky break — representing a black prisoner who had been impressed into Alabama’s convict-release scheme, a system that was scant one step above slavery. (We discussed this system in our story on Julia Tutwiler, if you want to see how all the moving parts come together.)

He impressed local officials enough that he was wrangled into being a city judge. He didn’t like the work though, and abandoned it to be come a district attorney. When World War I rolled around, Black briefly retired from the law to enlist with the Army. He was an artillery officer and eventually rose to captain, though he was never stationed overseas.

Coming home from his service experience, the restless Black next turned to politics, where he won a Senate seat for Alabama in 1926, coming into office at the same time of the disastrous Calvin Coolidge and the onset of the Great Depression. It was this experience that shaped his tenure as a lawmaker, where he became a full-bore gladiator for President Roosevelt’s New Deal program — Hugo Black voted for all 24 of the New Deal bills brought before the Senate. And, why not? The South and other rural regions in particular benefitted tremendously from those programs. A voter with a job and a full pantry is a happy voter; smart politics are smart politics, no matter the era.

Black’s outspoken defense of Roosevelt’s agenda, his fiery personality and youth, and his lockstep voting record caught the eye of the President, a man who required charismatic, powerful loyalists. That was Hugo Black. And, in 1937, Black was confirmed by his colleagues in the Senate to became the first of eight appointments FDR would make to the Supreme Court.

As with so many people we’ve highlighted in this countdown, Alabama’s only Supreme Court justice was as contradictory a person as he was a product of his times.

• A staunch defender of individual rights textually enshrined in the Constitution, Black nevertheless read beyond the words in a series landmark ‘incorporation” cases which applied its protections to the states.
• A federalist to his marrow and deeply concerned about the overreach of the federal government, he nevertheless upheld several New Deal programs and overturned precedents that had limited those programs — in effect, this scion of limited enumerated powers expanded the reach of the federal government. Even on the bench, Black was an FDR loyalist, protestations about limited government aside.
• Justice Black made his name in the Senate as a lawmaker who used oversight powers to fiercely attack cronyism and insider-dealing gnawing at the sinews of good governance. At the same time, was often rightly accused of serious ethical lapses — ones that, at best, were fatal conflicts of interest, or, at worse, did political favors for preferred corporate litigants.
• He was a strong advocate for collective bargaining rights, and in his early career, his clients were almost solely individuals and small businesses. But, among his most infamous opinions were ones where he sided corporate interests, limiting the reach of those union contracts.
• Hugo Black was a former prosecutor who nevertheless championed the rights of defendants from the bench, adopting an expansive view of the Fourth Amendment and signing on to the Miranda opinion (among many others.) You can almost read the venom dripping from the pages when he lashed out at Red Scare statutes criminalizing freedom of speech and association.
• One of the strongest protectors of free speech in our nation’s history, Black nevertheless read the word “speech” as narrowly and literally as he did absolutely. Black did not espouse broader notions of conduct as protected expression, and was a dissenter in cases involving sit-ins, marches, flag burnings, and the infamous “F the draft” jacket.
• Reading from the Constitution, he advocated a strict “wall of separation of church and state” in the face of governmental attempts to enmesh religion into civic life. And at the same time, he was a devout Protestant who had joined several organizations that sought to diminish the power and influence of Catholics in public life (spoiler: the big one involves a white robe.)
• That vociferous defense of First Amendment rights lasted until they ran head-long into law-and-order. Still, he did not take the Government’s claims of national security without a heavy dose of skepticism, and rejected arguments that the freedoms of speech and press could be limited on those grounds. His concurrence in New York Times vs. Sullivan was stridently, vintage Black:

“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.”

• He was known as a pleasant gentleman throughout the halls of the court, always with a joke and a laugh and whistling a tune. At the same time, he could be petty and vicious. His personal and professional feuds with his colleagues on the Court, and some of the backroom attacks upon them, are the stuff of legend. Also legendary were his fights in the Court’s hallways, where he was known to whip a constitution out of his back pocket and challenge his colleagues to find the language that supported their position.
• Black was outspoken in his belief in judicial restraint. Yet, he was also part of the most liberal wing of the Earl Warren Court — considered one of the most judicially active courts in our history.* His opinions were particularly likely to urge or sanction action when the government attempted to address pressing economic and social issues.
• Black’s decisions incorporated rights to citizens outside of the explicit text of the Constitution, but at the same time, he rejected the underlying argument that most of the rights enumerated in the Constitution implied a right to privacy. His dissent in Griswold vs. Connecticut — refusing to recognize even a marital right to privacy to use contraceptives — is considered an unusual one in light of his general philosophy.
• As a young man, Hugo Black was a member of the Klan. But, in 1925, the year before he ran for Senate, he abandoned membership. And, he would go on to champion desegregation early in his career, later join the unanimous Court in Brown vs. Board of Education, and author several cases requiring desegregation in busing and education. There are some reasons to think that some of those old prejudices never were fully relinquished, however.
• For instance, Black was an early advocate of “one person, one vote,” but frequently voted in favor of poll taxes, and was not inclined to overturn state restrictions on voting on the basis of equal protection. The latter is ironic since the same 14th Amendment he had enlarged and applied to the states, he read very narrowly when it came to due process and equal protection. He also had a particular abhorrence and fear of street protests. It is not uncommon for those in the law to be mistrustful of mobs and pack mentality, but there is much to suggest that this ardent defender of the First Amendment did not view all of its five rights equally, particularly in the context of civil rights and anti-war campaigns.
• And then perhaps comes the blackest demerit on Black’s often-contradictory career, the case broadly recognized as staining his stature: his majority opinion in Korematsu vs. United States, which upheld the removal, exclusion, and internment of Japanese citizens and Japanese-American aliens during World War II. The result was probably not surprising given the shock of Pearl Harbor and the pervasive racial attitudes of the early 20th century, but how Black arrived there was: Somewhat disingenuously, he justified the internment on the basis of military necessity, saying that it was disconnected from the race or ethnicity of the Japanese. Considering that Black was generally skeptical of a government’s claims of national security and national emergency, Korematsu was particularly out of keeping with his career.
  Then again, maybe not. Old prejudices die hard.

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In 1971, after 34 years on the bench, Justice Hugo L. Black retired from the bench. Just two days later, he passed away. He is the fifth-longest serving justice in U.S. history. And, while Alabama has never had a US President or Vice President (go have a seat, Mr. William “Six Weeks” King), the one Supreme Court justice that it did produce also happened to be one of its most distinguished, dynamic native sons.

Hugo Black was nothing if not a man of and for his times and station: prickly, prejudicial, political, prideful. And, at the same time, he was a civil libertarian that saw a freer world for Americans — as open-minded and visionary as he was absolutist. But his was an absolutism tempered by pragmatism. That may be the most striking legacy of Black, and one created in his Senate years: Compromise; yielding in his personal beliefs to meet the emergencies of the nation — he would undoubtedly be horrified to read that.

Hugo Black leaves behind such a fascinating, nuanced, and contradictory career that he has been called “the most remarkable justice of the 20th century.”

And it is awfully hard to disagree with that assessment.

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There are now just two days until football season

Roll Tide.

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If you’re interested in “judicial activism,” Emory professors Epstein and Martin published an outstanding law review on the subject in 2009. “In a nutshell, liberal Justices tend to invalidate conservative laws and conservative Justices, liberal laws. This holds regardless of whether we examine all the Justices’ votes simultaneously or each Justice individually.”
I have not seen a present breakdown of disturbed precedents, etc. But the piece above is an interesting look at the Court’s tendencies from Kennedy up to and through George W. Bush’s presidencies.

Finally, I cannot recommend this biography enough on the life and interesting judicial career of Hugo Black: Robert K. Newman’s Hugo Black: A Biography is outstanding.