When Hugo LaFayette Black was appointed to the Supreme Court in 1937, the basic tenets of his mature judicial philosophy had already been formed. Born in the Alabama hill country in 1886, Black received his law degree from the University of Alabama in 1906. He practiced law, largely handling personal injury cases, in Birmingham during the next twenty years and served brief terms as police court judge and county prosecutor. In 1926 he was elected to the United States Senate; after reelection in 1932 he became an outspoken advocate of the NEW DEAL and a tenacious investigator. Throughout his career he read extensively in history, philosophy, and literary classics. From THOMAS JEFFERSON he took his view of the FIRST AMENDMENT. Aristotle, his "favorite author," and JOHN LOCKE offered appealing theoretical perspectives on the nature of government and society.
Coming to the bench in the aftermath of President FRANKLIN D. ROOSEVELT'S COURT-PACKING plan, which he vigorously espoused, Black searched for a jurisprudence of certainty, seeking clear, precise standards that would limit judicial discretion, protect individual rights, and give government room to operate. He saw the Constitution as a set of unambiguous commands designed to prevent the recurrence of historic evils. In its text and the intent of its Framers he found the authority for applying some provisions virtually open-ended, and others rather more strictly. All constitutional questions he considered open until he dealt with them; but when he came to a conclusion, he maintained it with single-minded devotion. His opinions never suggested that he entertained any doubts.
Black's Senate years left an indelible impression on his performance as Justice. Each of the popular branches must be left to carry out its duties according to the original constitutional understanding. Congress makes the laws, he noted in YOUNGSTOWN SHEET & TUBE COMPANY V. SAWYER (1952); the President's functions are limited to the recommending and vetoing of bills. Congress, Black believed, had the power to regulate whatever affected commerce. Likewise, unless states discriminated against INTERSTATE COMMERCE, they had the power to regulate in the absence of contrary congressional direction. Nor, under the DUE PROCESS clause of the FOURTEENTH AMENDMENT, might courts consider the appropriateness of legislation. In Lincoln Federal Labor Union v. Northwestern Iron & Metal Company (1949), he observed that the Court had rejected "the Allgeyer-Lochner-Adair-Coppage constitutional doctrine"; the states had power to legislate "so long as their laws do not run afoul of some specific federal constitutional provision, or of some valid federal law."
Black's adamant refusal to expand judicial power through the due process clause forced him to develop an alternative theory to protect the rights enumerated in the BILL OF RIGHTS. He had to overcome his initial "grave doubts" about the validity of JUDICIAL REVIEW. CHAMBERS V. FLORIDA (1940) was an early milestone. Courts, he stated in that case, "stand against any winds that blow as havens
of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement." Finally, in Adamson v. California (1947), he laid down the formulation that guided him for the rest of his career:
My study of the historical events that culminated in the Fourteenth Amendment? 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.? I fear to see the consequences of the Court's practices of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting and enforcing that Bill of Rights.? To hold that his Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution.
Only by limiting judges' discretion, and demanding that they enforce the textual guarantees, could the protection of these rights be ensured. Black feared that the "shock the conscience" test, which Justice FELIX FRANKFURTER employed for the Court in Rochin v. California (1952), with its "accordion-like qualities" and "nebulous" and "evanescent standards," "must inevitably imperil all the individual liberty safeguards specifically enumerated in the Bill of Rights."
Black applied his INCORPORATION DOCTRINE in scores of cases. From his early days as a public official he hated coerced confessions, and he viewed POLICE INTERROGATIONS without counsel as secret inquisitions in flat violation of the FIFTH AMENDMENT'S guarantee of the RIGHT AGAINST SELF-INCRIMINATION."From the time government begins to move against a man," he said when the Court considered MIRANDA V. ARIZONA (1966), "when they take him into custody, his rights attach." He led the Court in expanding the RIGHT TO COUNSEL from his first term, when he held in JOHNSON V. ZERBST (1938) that in a federal prosecution counsel must be appointed to represent a...