Hugo Black: A Biography.

• Author: Stein, Gary

Hugo Black was one of the most enigmatic of a notably enigmatic generation of New Deal Southern Democrats that rose to national power in the thick of this century. Lyndon Johnson had his towering contradictions, but even those did not surpass Black's. The same man who joined the Ku Klux Klan in his native Alabama later joined the Warren Court's rulings ordering an end to desegregation. The same man hailed as the Supreme Court's greatest civil libertarian wrote the Court's opinion upholding the confinement of Japanese-americans during World War II, one of the greatest civil liberties disasters in our history. The same man who came to the Court to prevent the judiciary from frustrating the will of the majority became its most ardent defender of the rights of the minority. Oddest of all, perhaps, is that this least trained of Supreme Court Justices, who prior to his appointment had never held a legal post higher than that of Jefferson County (Ala.) solicitor, emerged as its dominant intellectual force and most avid student of constitutional history.

Raw ambition explains much of LBJ's incongruities.(1) Judicial biographies remind us that judges have ambitions, too, particularly judges who, like Black, come from a background in electoral politics. While Roger K. Newman's new biography(2) is not rich in legal philosophy or historiography, it tens us much about Black the man, and in the process much about Black the jurist. First captivated by the raw power of Black's opinions in 1967, Newman spent a good part of the next quarter-century at work on this biography, interviewing thousands of Black's relatives, former clerks, Alabama political associates and even, in 1969, Black himself. The result is a thoroughly informed and highly readable study, filled with illuminating detail yet also graced with a perspective that keeps attention focused on the truly significant aspects of Black's fascinating life.

Newman's biography is especially timely because, in many ways, Black is back in vogue. Though Black was a political liberal, he never shared the philosophical relativism and pragmatism that shaped the outlook of the great Northern-educated liberal judges such as Holmes, Hand, Cardozo, and Brandeis. Black's unusual commitment to the power of legal texts and belief in immutable principles make him seem an oak in a forest of rootless judicial pragmatists. He is frequently invoked in that spirit today by advocates of judicial restraint, mainly on the right, who believe that the American tradition of judicial pragmatism leaves too much discretion in the hands of judges.

Newman--who persuaded Congress to issue a stamp in 1986 commemorating the 100th anniversary of Black's birth(3)--does not disguise his admiration for Black. The quotation from Emerson with which Newman opens the book evinces his belief in Black's greatness: "If a single man plant himself on his convictions and then abide, the huge world will come round to him."(4) But despite his obvious affection for Black, Newman is also a skfllful, honest and at times sardonic reporter of the facts of Black's life, which he often uses to undermine Black's claims of conviction, and which make the Emerson epitaph seem more than a little ironic. As a new generation debates the relative merits of judicial formalism and judicial pragmatism, it is worth considering the evolution of Black's jurisprudence and the strength and significance of his convictions outside the four corners of his opinions and in the light shed by his personality, life experiences, and aspirations.

I

"I'm just a Clay County hillbilly," Black liked to say, referring to his roots in the Alabama backcountry.(5) One is reminded of the character from "Unfrozen Caveman Lawyer," the Saturday Night Live skit from a few years back, who, awakening after thousands of years, transforms into a wily and highly successful American trial lawyer. "I'm just a caveman," Unfrozen Caveman Lawyer told juries, affecting unsophisticated humility. In neither his case nor Black's was the self-effacement warranted.

Charming, cunning, combative, and full of energy, Black (like Unfrozen Caveman Lawyer) was a trial lawyer. Throughout his life he remained, Newman observes, "an advocate down to his bones."(6) His formal legal education consisted of a two-year program at the University of Alabama law school, to which he was "apparently admitted in violation of [the school's] regulations," not having attended an undergraduate institution or taken the necessary examinations.(7) Graduating at age 20, Black went on to become the leading personal injury lawyer in Birmingham, Alabama, mainly representing injured workers in suits against corporations. "The courtroom was his theater," writes Newman. "He bluffed and gambled.... He used facial expressions--a smirk, grimace or raised eyebrow, a tense or eager look.... He moved around confidently and purposely," striking "a pose of confident humility.... He tried to make jurors feel not that he was a great showman, but that he just had a great case."(8) Black likely was the only Supreme Court Justice who took an aptitude test that found him best suited to be an actor.(9)

Populism and racism made for a dangerous brew in the Birmingham of the 1920's, a working-class city known as "the Pittsburgh of the South."(10) At the same time Black was making his mark, a baseball radio broadcaster by the name of Theophilus Eugene Connor--nicknamed "Bull" for his ability to shoot the bull on the air--was also acquiring a reputation as a friend of the Birmingham workingman.(11) Black was a populist and, although Newman convincingly debunks any notion that he was a racist, Black was not above making blatantly racist appeals to all-white Protestant Birmingham juries. Defending a Protestant minister accused of murdering a Catholic priest who had married the minister's rebellious daughter off to a Puerto Rican laborer, Black paraded the bridegroom before the jury under Klieg lights designed to highlight his dark complexion. Black also read from the official KKK prayer in his summation. The jury found that the minister had acted in self-defense.(12) Black also successfully defended a white man who, taking justice into his own hands, avenged his brother's murder by killing a black tenant farmer named Luke Ware on the courthouse steps moments after Ware (astonishingly enough) was acquitted by a white jury. "[A] tear roll[ing] down his cheek," Black invoked the ancient tradition making it the duty of the oldest son to avenge the killing of another family member. After the verdict, Black was more prosaic. He told his client, who had thanked God for his victory: "Don't thank Him. Thank me. God knows you're guilty."(13)

Black's reputation, and income, grew rapidly. But his sights were set not on acquiring great wealth but on acquiring high political office. Accordingly, Black did what almost all politically ambitious Alabamans did in the 1920's: he joined the local "klavern" of the KKK, the Robert E. Lee Klan No. 1. The Invisible Empire was then very visible in Birmingham. The ceremony at which Black and 1,500 others were inducted in 1923, in front of "large flaming crosses," took place in a public park and was reported in the Birmingham News.(14) Later Black minimized his involvement, but Newman shows that Black, in fact, was an active Klansman, an officer who initiated new members, spoke at Klan meetings around the state in full Klan regalia, and marched in parades.(15) Newman also demolishes Black's suggestions over the years that he joined the Klan casually, much like one would become a Rotarian, in order to enhance his law practice. It was, instead, a calculated decision to get ahead politically.(16) Black had, it seems, planted himself squarely-but on his ambitions, not his convictions.

Newman does argue, as did Black at times, that joining the KKK was simply an unavoidable fact of Alabama politics in the 1920's.(17) But not all Southern politicians made the same choice Black did. James F. Byrnes, for example, refused the invitation of the South Carolina Klan in 1924, and as a result lost his campaign for the Senate that year.(18) But Byrnes won election to the Senate six years later, after the Klan's popularity crested and the Depression began, and went on to become a major figure in the Roosevelt Administration and, briefly, a colleague of Black on the Supreme Court. Black's nearest rival in the 1926 primary, John H. Bankhead, did not join the Klan, but was elected Alabama's second senator in 1930, defeating the Klan's candidate, the virulently anti-catholic J. Thomas Heflin.(19) A premise of Black's subsequent First Amendment jurisprudence was that politicians should not capitulate to the passions of the moment. Yet that was what Black did when he joined the Klan.

With the Klan's strong backing--black's friend, the Grand Dragon of Alabama, was "campaign manager in everything but name"(20)--black won a tight Democratic Senate primary in 1926. At a Klan victory celebration, he acknowledged his debt, thanking the Grand Dragon and his fellow members "from the bottom of a heart that is yours."(21) Two terms in the Senate proved him an ardent and loyal New Dealer, who advanced economic reform proposals more radical than the Roosevelt Administration's, strongly supported Roosevelt's Court-packing plan, and led an investigation into corporate lobbying practices that drew harsh criticism, not all of it from conservatives, for its partiality and strong-arm tactics.(22)

Black hardly cut a Solomonic figure. His only prior judicial experience was an eighteen-month stint as a municipal police court judge when he was in his mid-20s. But then Franklin Roosevelt was not looking for moderation and judiciousness in his first appointment to the Supreme Court. The President was looking for revenge, against a Senate that had unexpectedly rebelled at his Court-packing plan. In Black, Roosevelt found "the perfect vehicle for...