Black, Hugo L. Summary

  • Last updated on November 11, 2022

During his thirty-four years on the Court, Black led the drive to make the rights of the Constitution’s first eight amendments binding on the states, while working vigorously to expand constitutional rights, especially in the areas of free speech and civil rights.

The son of a poor storekeeper in rural Alabama, Black took a keen interest in both books and politics at a young age. Although a disciplinary incident prevented him from graduating from high school, he studied for a year in medical school and then transferred to the University of Alabama’s law school. Immediately after earning his law degree at the age of twenty, he began to practice law in the city of Birmingham. Orienting his practice toward working people and labor unions, he became one of Alabama’s most successful personal injury lawyers. His courtroom style combined fiery presentations and detailed knowledge of relevant facts. He joined many civic organizations, and despite his religious skepticism, he taught a popular adult class at a Baptist church. He also served as a part-time police court judge in 1910-1911.Roosevelt, Franklin D.;nominations to the Court

Political Career

In 1914 Black was elected prosecutor of Alabama’s Jefferson County. He effectively emptied a large docket, and he once prosecuted police officers for forcing confessions from African American defendants. He joined the Army during World War I and rose to the rank of captain but never left the United States. After returning to Birmingham, he married and had three children. Meanwhile, his law practice flourished.

Hugo L. Black

(Library of Congress)

Black was a member of the Ku Klux Klan from 1923 to 1925 and was elected to the U.S. Senate with Klan support in 1926. Like other southern populists of the time, he campaigned on the theme of promoting economic justice for the poor and the weak. Because the Republican Party controlled Congress during Black’s first Senate term, he spent much of his time pursuing his interests in history and philosophy. However, the Democratic Party’s electoral triumph in 1932 gave him the opportunity to exercise a leadership role in the Senate.

As Democratic Party whip in the Senate, Black played a crucial role in helping to pass President Franklin D. Roosevelt’s New Deal legislation. He was also a leading force in congressional investigations of lobbying practices and misappropriation of government subsidies. Black sponsored the earliest minimum-wage and maximum-hours law. A long-time critic of the Supreme Court’s economic conservatism, he bitterly resented the Court’s striking down of New Deal legislation and enthusiastically supported Roosevelt’s Court-packing plan.

Appointment to the Court

On August 12, 1937, Roosevelt named Black to fill the first Supreme Court vacancy that opened during his presidency. A mere five days later, the Senate confirmed Black’s nomination by a vote of sixty-three to sixteen. Black served on the Court until failing health forced his resignation on September 25, 1973. He died just eight days later.

As an associate justice, Black argued that framers of the Fourteenth Amendment (1868) had intended to incorporate all the rights guaranteed by the first eight amendments into their new amendment.Incorporation doctrine For that reason, he argued, those rights should apply to the state governments, as they already did to the federal government. In his view, the Fourteenth Amendment’s “liberty” and “privileges or immunities” meant the states should have the full protections of the Bill of Rights. Defending this position in his dissent in Adamson v. California[case]Adamson v. California[Adamson v. California] (1947), he amassed an impressive amount of historical material, but critics observed that he ignored contradictory evidence. On this issue, he often came into conflict with Justice Felix Frankfurter, who argued that the Fourteenth Amendment applied selective guarantees based on their fundamental fairness. Black never persuaded a majority of his colleagues to accept his principle of total incorporation but succeed in launching the piecemeal incorporation of most of the specific rights of the first eight amendments. By the time he retired in 1971, the debate over incorporation had largely ended, and most provisions of the Bill of Rights had been applied to the states.

Particular Rights

Believing that the First Amendment’s guarantees of freedom of speech and press were at the heart of a free government, Black accepted the “preferred position” of these freedoms in the 1940’s.Preferred freedoms doctrine He vigorously argued that all speech and writing was absolutely protected from governmental sanction. Like his close friend on the Court, William O. Douglas, he believed that this protection extended to all forms of obscenity, and he therefore refused to review adult movies to determine if they were obscene. At the same time, Black made a sharp distinction between conduct and verbal expression, and did not generally support the notion of “symbolic speech.” In Tinker v. Des Moines Independent Community School District[case]Tinker v. Des Moines Independent Community School District[Tinker v. Des Moines Independent Community School District] (1969), his bitter dissent insisted that the First Amendment did not protect any right of children to wear controversial political symbols in the public schools.

Black endorsed Thomas Jefferson’s view that the First Amendment erected a wall separating church and stateChurch and state, separation of and that governmental funds must never support religious institutions. He wrote the majority opinion in Everson v. Board of Education of Ewing Township[case]Everson v. Board of Education of Ewing Township[Everson v. Board of Education of Ewing Township] (1947), which theoretically applied this understanding of the establishment clause to the states, while permitting states to pay transportation costs to parochial schools. Many southerners were outraged when Black wrote Engel v. Vitale[case]Engel v. Vitale[Engel v. Vitale] (1962), forbidding state-sponsored prayers in public schools.

In criminal trials, Black generally took an expansionist view on the Fifth and Sixth Amendments. Defendants’ rightsOne of his first majority opinions, Johnson v. Zerbst[case]Johnson v. Zerbst[Johnson v. Zerbst] (1940), held that counsel must be provided for indigent defendants in federal prosecutions. In Betts v. Brady[case]Betts v. Brady[Betts v. Brady] (1942), he registered a strong dissent when the majority refused to apply the principle to the states. Twenty years later, Black saw Betts overturned, and he had the honor of writing for a unanimous court in the famous case of Gideon v. Wainwright[case]Gideon v. Wainwright[Gideon v. Wainwright] (1963). Black’s views on the Fourth Amendment were more restrained. In Katz v. United States[case]Katz v. United States[Katz v. United States] (1967), for example, he argued that personal conversations were not protected under the amendment.

Equal Protection

Equal protection clauseBlack consistently took a firm stand against Jim Crow racial discrimination. When the school segregation cases were first argued in the early 1950’s, he was one of only four justices to vote to overturn Plessy v. Ferguson (1896). His opinion in Griffin v. County School Board of Prince Edward County[case]Griffin v. County School Board of Prince Edward County[Griffin v. County School Board of Prince Edward County] (1964) firmly rejected attempts to avoid compliance with school desegregation and declared that the “time for mere ’deliberate speed’ had run out.” In cases such as Shapiro v. Thompson[case]Shapiro v. Thompson[Shapiro v. Thompson] (1969), however, he opposed the application of the strict scrutiny test in equal protection claims not involving racial discrimination. In his later years, Black angered liberals when he argued in dissent that the Constitution did not provide any guarantee that citizens could engage in civil rights protests on private property.

Black has been especially criticized for his majority opinion in Korematsu v. United States[case]Korematsu v. United States[Korematsu v. United States] (1944), which upheld the forced removal and internment of JapaneseJapanese American relocation Americans living on the West Coast after the United States entered World War II. Although there was no real evidence that Japanese Americans had posed a threat to national security, Black continued to insist that the decision was justified by the exigencies of war. Ironically, Black’s Korematsu opinion later had a liberal influence as the Court’s first reference to race as a suspect classification that should be subjected to the “most rigid scrutiny.”

Constitutional Philosophy

In his book, A Constitutional Faith (1968), Black expressed a quasireligious devotion to the text of the Constitution. A critic of judicial discretion, he argued that judges should base their decisions on a literal reading of the Constitution, while taking into account the intentOriginal intent of the Framers. Called a “judicial positivist,” he opposed subjective interpretations in which justices found unenumerated rights in either natural law, substantive due process, or the Ninth Amendment. Believing that judges were fallible, he never placed a high value on judicial precedents. During his early career, he denounced the concept of a probusiness “liberty of contract,” just as he later became a vociferous critic of an unenumerated “right to privacy.” When the Court overturned a law prohibiting the sale of contraceptives in Griswold v. Connecticut[case]Griswold v. Connecticut[Griswold v. Connecticut] (1965), Black wrote a strong dissent, accusing the majority of reviving the excesses of the early twentieth century Lochner v. New York[case]Lochner v. New York[Lochner v. New York] (1905) era, when the Court intervened excessively in commerce laws.

Further Reading
  • Steve Suitts’s Hugo Black of Alabama: How His Roots and Early Career Shaped the Great Champion of the Constitution (Montgomery: NewSouth Books, 2005) is an impressively researched and beautifully written study of Black’s entire life. Roger K. Newman’s Hugo Black: A Biography (New York: Pantheon, 1994) is a scholarly and well-written study of Black’s life and career. James Magee’s Mr. Justice Black: Absolutist on the Court (Charlottesville: University Press of Virginia, 1980) presents a critical analysis of his judicial philosophy, with an emphasis on his absolutist views on free expression For an interesting comparative approach, see James Simon’s The Antagonists: Hugo Black, Felix Frankfurter and Civil Liberties in Modern America (New York: Simon & Schuster, 1989). For a detailed study of his career until 1937, see Virginia Van der Veer Hamilton’s Hugo Black: The Alabama Years (Baton Rouge: Louisiana State University Press, 1972). Hugo Black, Jr., presents a delightful look at the man in My Father: A Remembrance (New York: Random House, 1975). Irving Dilliard edited a collection of many of his Supreme Court opinions in One Man’s Stand for Freedom: Mr. Justice Black and the Bill of Rights (New York: Alfred A. Knopf, 1963). Other recommended works include Tony Freyer’s Hugo L. Black and the Dilemma of American Liberalism (Glenview, Ill.: Scott, Foresman, 1990); Howard Ball’s Hugo L. Black: Cold Steel Warrior (New York: Oxford University Press, 1998); Michael Parrish’s New Deal Justice (New York: Random House, 1998); and Tinsley Yarbrough’s Mr. Justice Black and His Critics (Durham, N.C.: Duke University Press, 1988).

Constitutional interpretation

Court-packing plan

Due process, substantive

First Amendment absolutism

Fourteenth Amendment

Frankfurter, Felix

Incorporation doctrine

New Deal

Race and discrimination

Religion, establishment of

Roosevelt, Franklin D.

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