Today’s guest columnist is Roger Newman.
Few justices of the U.S. Supreme Court have ever become household names.
To most people they are a gray, anonymous lot, toiling in obscurity despite their obvious importance.
Only one justice has come from Alabama, Hugo Black. He was more than a great judge and public servant, he was one of the relatively few people whose ideas have truly shaped our country and are still with us.
He was born in 1886 in Clay County, then a hotbed of populism which he never lost, and came to Birmingham after law school in Tuscaloosa without going to college.
At 28 he became district attorney and then the best trial lawyer in the state. During more than 25 years in practice, he mainly represented injured workers and didn’t lose much more than a dozen cases out of about 2000. Adversaries said, “If you don’t watch out, Hugo will get in the jury box with you every time.”
Joins Ku Klux Klan
In 1923 he joined the Ku Klux Klan solely for political reasons – it was running the state and he wanted to run for office. He would have joined the Knights of Columbus and B’nai B’rith and also, I suppose, the National Organization of Women if he could, all to get votes.
At the same time he taught a Sunday school bible class at the First Baptist Church in downtown Birmingham, and earlier he wanted to marry an Orthodox Jewish woman but her family objected. Some things just can’t be figured out.
In any event the Klan served as his unofficial campaign organization when he was elected to the Senate in 1926. He was reelected in 1932 and became the most feared congressional investigator of the day as he cross-examined witnesses as if he were back in court.
His hearings into lobbying shenanigans by public utilities during the New Deal created a furor. They revealed that a large public utility had paid messenger boys 3 cents for each name on telegrams sent against the bill. One messenger, 19 year old Elmer Danielson, came before Black’s committee. He had gotten six signatures – from his mother, a friend, a neighbor, 3 others. “I asked them if they wanted to send a telegram,” Elmer said. “Did you tell them what they were signing?” Black asked. Elmer was now beaming and said he explained the public utilities holding company bill to them. “And where do you stand on that question today?” Hugo asked. Elmer looked down, opened his mouth, shut it, then smiled. “Well,” he said, “I guess I’m neutral today.”
Raising the minimum wage is still in the news. Black introduced the wages-hours bill as it was called three times before it became law in 1938, a year after he joined the Supreme Court.
The last bill he introduced was to seek a study of national health insurance. The American Medical Association was up in arms, socialized medicine they called it even then, and they contacted Hugo’s physician to discourage him. “I tried,” the doctor said, “but the trouble is that he’s sincere.”
Soon Hugo reported that the AMA would cooperate with the government in making a study, and he intended to use its findings to draft a comprehensive bill. By himself he had managed to neutralize the AMA. His desire to pass a health insurance law made him hesitant at first to accept Franklin D. Roosevelt’s offer of a Supreme Court appointment. For years he talked about it at home – it was unfinished business.
An impactful Supreme Court Justice
On the Court he spearheaded a constitutional revolution. He led American law toward the protection of the individual. His ideas reshaped separation between church and state, reapportionment, the right to counsel and other rights of criminal defendants, applying the guarantees of the Bill of Rights to the states – and he was almost mystically attached to the First Amendment, probably more than any other judge has ever been with any single part of the Constitution. More of his dissents became law than those of any other justice.
His ideas came largely from a continuing study of history. He read with pencil in hand and marked voluminous instances in the margins of his books, sometimes keeping up a running commentary with the author. On the First Amendment he always knew where he stood and after a few years Justice Felix Frankfurter called him Mr. Jefferson. By the time of McCarthyism in the early 1950s Black had digested the debates on the framing of the Constitution and the Bill of Rights and could practically regurgitate them. “I know what those guys were thinking,” he liked to say.
He now took an unprecedented position – complete protection of all speech on public matters. It was an absolute right, he said. Why did he choose the word “absolute”? He always had five reasons for doing anything, and he liked to tell a story about a senator who when he wanted to get something done, introduced two bills – the one he wanted passed – and another that made the first one seem conservative. Using the word “absolute” was a rhetorical tactic that had the great advantage of making the text the starting point for discussion.
The man behind these views was as charming and as gentle as anyone you will ever meet, and he treated every person with a simply unbreakable respect and courtesy. You just couldn’t dislike him once you met him – think of Bill Clinton, maybe Joe Biden. If someone denounced him, he would only praise their sincerity and quote the Bible, all in the manner of a front-porch philosopher, and they would be disarmed.
He always managed to enjoy himself. Once he said that when he saw engraved on a tombstone “Here lies a lawyer and an honest man,” he remembered Ben Franklin’s line, “how did they bury two people in the same grave?”
Underlying all his actions was a caring, call it love, an expression of feeling from one neighbor in the human race to another, grounded in a profound yet unobtrusive religious faith and expressed with a naturalness, a sheer humanity that heaven knows is so missing from our public life today. In one opinion Black proudly and without an ounce of self-consciousness wrote, “Loyalty comes from love of good government, not fear of a bad one.”
No person in public life in this country was more determined to break down racial barriers. Chief Justice Earl Warren asked him if he wanted to write Brown v. Board of Education. Black said no – he believed it would be more effective if the chief justice did because of his title.
Politics was always close to his heart. “What’s your name, son?” he asked a new clerk, obviously knowing it full well. “Christian Dixie” came the reply. “Great name to run for office in the South with,” Black said. The presidency had long been his goal. He very much wanted the vice-presidential nomination in 1940, and in 1944 he turned down a possible overture, with FDR still in the White House. In 1948 he came back home to see if he had support for a primary challenge against Harry Truman. But that was the year of the Dixiecrats and he had very little support.
Why Black was successful
What accounts for Hugo Black’s success? Many things obviously, but at the top are his vision formed by reading, an immersion in people’s needs and sheer tenacity. Sometimes I’ve thought that all he really wanted was jurisdiction over the rotation of the earth. He had the master trial lawyer’s knack of asking just the right question and stopping when he had convinced the jury. For nearly 25 years, from the early 1940s into the mid-1960s, he was the leader of the Court as his view prevailed in most of the important things. It was politics in its noblest sense, practiced by a brilliant strategist.
The Judge speaks to us in a different, deeper way. He was a classicist in modern America, a small breed. He read everything the Greeks and Romans wrote, and to him as to the constitution’s framers, they imparted strong messages about power, virtue and honor. When he was in the Senate, a reporter wrote after he quoted some ancient worthy on the Senate floor that he sounded like “a talking encyclopedia with a Southern accent.” He wrote rhetorically but without bombast – the words soared while his feet remained on the ground as if he were back in the courtroom or the Senate, or on the campaign trail. He dictated many opinions, and anyone could understand him.
The Constitution captured history’s lessons, he believed, as it caught unchanging human nature and controlled and cabined passion. Black viewed history as teaching by example, not merely as a series of facts taken from briefs, props otherwise unread, like a short-order cook whipping up a dish. In his hands this gave the constitutional text an unprecedented vitality. He made us appreciate how and why it came into being, how the history it represents remains alive. His version of originalism – he called it original intent – is both timely and timeless, but he used it only when it was most effective. A judge who refuses to stray from his philosophy and be subject to criticism for doing so, no matter how important the issue, he said, is a fool.
He died 50 years ago next year. The issues have changed, but only in their particulars. The relation of the citizen to government is as perplexing today as it was 2000 years ago, which is why the constitution’s framers left posterity to decide matters for itself. I think of the remark, “what has posterity has ever done for me that I should think of posterity.” The framers are our escorts but they wanted us to cut their loaves at our table, with our utensils, in our language. Originalism, whether it is wooden as the Supreme Court applies it today, is only one approach to interpreting the constitution. It can’t answer all questions, but can be a guide to those that it does, and this is one of the most important of Justice Black’s legacies.
Last years of life most moving
His last years were not easy. His robust health began to deteriorate, although he continued to play tennis almost daily. His views were changing on many issues. Sit-ins, demonstrations, marches, the new constitutional right to privacy – he disagreed with all. If he had been alive, he would have, despite his personal views, dissented in all abortion cases. Now he was emphasizing the literalness of the constitution’s text and he became a virtual caricature of himself. The result was that he was the unacknowledged father of a new-fangled originalism which aimed to destroy almost everything he had achieved.
Yet these years were among the most moving of Black’s life. The glory was his reacceptance in Alabama. The former senator had been reviled and more before some of his views changed. Now, at dinners, receptions and speeches he was received as a hero. But even these moments of supreme joy would have paled to the naming of the Birmingham federal courthouse for him.
On the most important issue of all, nothing changed. Hugo Black had total confidence in the ability of a free people to make up their own minds, to say, think and write what they want, to pray or not. This gave him a marvelous serenity about the country’s future. In my book, because I dealt at length with Black and the Klan, I unknowingly gave fodder to what is now many works absurdly claiming that he was anti-Catholic and using his opinions as supposed proof. But I don’t believe that any man, woman or child, as Black might have said, would have any doubt as to how the former senator would have voted in the Obamacare, Citizens United or Hobby Lobby cases – or in any voting rights case.
At his funeral at the National Cathedral in Washington the plain pine casket looked strangely out of place amidst the majestic splendor. The minister closed with the standard refrain, “we will not see his like again.” For the only time since Hugo Black was born, there were no dissents.
Roger K. Newman is the author of Hugo Black: A Biography and many other works. He is working on a book on the Supreme Court and the conservative movement.
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