Hugo Black: A Biography.

• Author: Hutchinson, Dennis J.

To the generation of law students born after Earl Warren retired, Hugo Black, who lived from 1886-1971, is now a shadowy figure. But to those who came to the profession during the "moral epoch" of the Warren Court,(1) Black was the living embodiment of the liberal judicial ideal. He wrote simply and passionately about freedom of speech and equal protection of the laws, he was steadfast against official oppression and petty brutality, and he took his bearings from the text of the Constitution -- a copy was always tucked in his suit pocket. The image, which Black carefully crafted, belied an extremely complex personality whose influence on the Supreme Court went far beyond his own published opinions. Indeed, Black may have been the most influential member of the Court for the two decades following the outbreak of World War II. More than any other single Justice, Black molded the agenda of cases that the Court heard during the period and shaped the terms of discourse used by the Court to decide those cases. Even further behind the scenes, Black tacitly influenced scholarly evaluation of the Court's performance: an ex-clerk would leap to Black's defense in print(2) when he was criticized, and other allies turned debate over constitutional issues into a personalized comparison of the virtues of Black and Justice Felix Frankfurter.(3)

To the public, of course, Black was solely a creature of his opinions -- brief, highly accessible odes to liberty, which he grounded in classical thought and constitutional history, and which he insistently tied to the text of the Constitution. These opinions hooked Roger K. Newman(4) as an undergraduate: "In 1967," he reports in the Epilogue, entitled "Of Hugo and Me," "I was one of the young devouring Hugo Black's opinions.... What began as a curiosity became a frequent preoccupation and then, admittedly, an obsession. The long journey started" (p. 626). The end of the journey, nearly three decades later, is the most detailed study of Hugo Black that we have ever had or are likely to have. Mr. Newman has been tenacious, undaunted by Black's rather petulant decision to burn all of his conference notes and many of the materials in his case files -- "You don't seem to want to pay the price of fame," his friend Virginia Durr chided (p. 610). The biography, needless to say, is authorized. Newman's Epilogue acknowledges the energetic support of the Black family, including both of the Justice's sons and daughter ("she started as a 'source' and turned into a dear friend" (p. 631)).

Newman does not imply that his work is designed to satisfy the Black family, however, and it is hard to see how it could. The most revealing details in the volume touch on private and sometimes embarrassing personal matters that shed little light on the Justice's views but appear intended to humanize him -- if somewhat darkly. The resulting portrait is an even more overbearing husband and domineering father than appears in either the second Mrs. Black's published diaries(5) or Hugo Black, Jr.'s deferential memoir.(6) We learn, for example, that Sterling Black, Jr. -- the Justice's grandson -- was suspended from public high school for circulating an underground newspaper shortly after the Court heard argument in Tinker v. Des Moines School District.(7) Newman suggests that Black's "vicious harangue" (p. 592) dissenting in Tinker was fueled by his disappointment with both his grandson and with his son, Sterling, the head of the New Mexico ACLU, who planned to challenge the suspension in court. "If the case ever reaches the [Supreme] Court, I will disqualify myself not only in it but in every other case in which the ACLU takes any part, no matter how small."(8) The incident is arresting, but not as self-explanatory as Newman implies. By 1969, when the Court decided Tinker, Justice Black had long since publicly abandoned any hint of "absolute" protection for nonverbal speech. He was testy about sit-ins and flag-burning, and the necessity for public order became a frequent theme. At the same time, the Justice never hesitated to give imperative advice to his children or to his wives -- his first wife died in 1952 -- often in fiercely uncompromising terms. "Vicious harangues" on a range of topics came frequently at this point in the Justice's life.

Newman's account of Tinker fails to pull Black into sharp focus, but more importantly, it ignores other work that helps to explain the tenor of Black's famous dissenting opinion. Laura Kalman's authorized biography of Justice Abe Fortas reports:

By the 1968 term one of Warren's clerks considered the tension between Black and Fortas "one of the most basic animosities on the Court." In every case Fortas cared about -- In re Gault, Powell v. Texas, Time v. Hill, Snyder v. Harris, Epperson v. Arkansas, Tinker v. Des Moines School District -- Black was on the other side.... Black long had contended that the due process clause of the Fourteenth Amendment incorporated the constitutional guarantees of the first ten amendments and applied them to the states. It followed that he would disagree with Fortas, who did not believe in full "incorporation" and who argued that courts properly could interpret due process as a broad guarantee of fairness.

The feud between the two men also became personal, and one of their brethren said, "I blame that on Black."(9)

Mr. Newman notes before his discussion of Tinker that the...