Late in his career, however, Black's commitment to literalism and intent led him to assume apparently conservative positions in civil liberties cases. In an era characterized by growing acceptance of the belief that judges should adapt the Constitution to changing social and ethical perceptions, many came to regard Black's position as unrealistic and irrelevant.
Tinsley E. Yarbrough analyzes Black's judicial and constitutional philosophy, as well as his approach to specific cases, through the eyes of Black's critics (such as Justices Frankfurter and Harlan) and through an assessment of scholarly opinion of his jurisprudence. The result is a stimulating and provocative addition to the study of Justice Black and the Supreme Court.
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Mr. Justice Black and His Critics
By Tinsley E. Yarbrough
Duke University PressCopyright © 1988 Duke University Press
All rights reserved.
HUGO Lafayette Black was a controversial figure all his public life and remains so in death. His membership in the Ku Klux Klan during the twenties was brief, pro forma, and, by Black's account, largely designed to enhance his ties with prospective Alabama jurors. But its revelation in the national press shocked the nation, casting a pall over his appointment to the Supreme Court. Anticipating southern segregationists by nearly two decades, one group condemned October 4, 1937, the Justice's first day on the high bench, as "Black Day," to be "so mourned each year as the Blackest Day in the history of American Justice."
The liberal voting record Black soon forged largely allayed doubts that publicity about his Klan affiliation had aroused. But some never forgave him for that association or for his appeals to the racial and religious biases of Alabama jurors in a notorious murder case, his rough treatment of Senate investigation targets, and his opinion upholding World War II sanctions against Japanese-Americans in Korematsu v. United States. Nor were such concerns alleviated by a 1967 newspaper interview with the Justice published following his death, wherein Black reaffirmed his Korematsu stance, emphasized the difficulty of separating loyal from disloyal Japanese, then remarked: "They all look alike to a person not a Jap." In a review of Gerald Dunne's biography of the Justice, Professor John Noonan dredged up "the repulsive aspects" of Black's career, scoring "[t]his Birmingham trial lawyer, whose judicial experience consisted of a term in 1910 as a police court magistrate, this KKK-sponsored Senator who had gained national attention by his McCarthyesque tactics as a senatorial investigator (Why is it McCarthyism and not Blackism?), this superpatriot who could never tell Americans of Japanese descent apart from aliens." Dunne, not his subject, Noonan concluded, was due admiration for his "accomplishment of charity in finding beneath Hugo Black's ... practical failings a man ... he can love."
Noonan was not offended, however, merely by Justice Black's purported pre-Court insensitivities to civil rights or his Korematsu opinion. He also attacked the "intellectual disarray" he saw in elements of the Justice's judicial and constitutional philosophy. And Noonan was hardly alone in that regard. Justice Black's contention that judges should stick to the Constitution's language and the intent of its framers, his claim that his interpretations squared with the document's "plain" meaning, and his insistence that conflicting constructions embodied mere personal policy preferences, as well as the often revolutionary meanings he perceived for specific constitutional provisions, generated considerable debate on and off the Court throughout his judicial career. On the Court, moreover, the bulldog tenacity with which he advanced his positions probably fueled the controversy that the contours of his jurisprudence inherently aroused.
The Judicial Critics
Through most of their respective careers, of course, Felix Frankfurter was Black's principal jurisprudential antagonist on the Court—and, along with Robert H. Jackson, perhaps his major personal antagonist as well. Black and Frankfurter denied stories of a long-running personal feud, but relations between the two were surely not entirely cordial. When Owen Roberts, who often had joined the Court's laissez-faire conservatives in invalidating early New Deal legislation, announced his retirement from the bench in 1945, Chief Justice Stone prepared the customary farewell letter for his colleagues' signatures. Justice Black, a harsh critic of the Old Court's repudiation of the Roosevelt recovery program, objected to a passage indicating the Justices' regret "that our association with you in the daily work of the Court must now come to an end," and to the observation that Roberts had "made fidelity to principle your guide to decision." To secure unanimity the Chief Justice agreed to Black's amendments. When Justice Frankfurter learned of the deletions, however, he persuaded Stone to circulate the original letter among their colleagues, with the passages to which Black objected enclosed in brackets. In addition, Frankfurter wrote his brethren a brief letter. He had no qualm, he informed them, about deletion of the first passage cited by Black. "But I cannot be party," he observed, "to the denial, under challenge, of what I believe to be the fundamental truth about Roberts, the Justice,—that he 'made fidelity to principle' his 'guide to decision.'" "My numerous and serious disagreements with Roberts," he pointedly added, "are, of course, beside the point."
At times, moreover, Frankfurter sided with Justice Jackson in his protracted, well-publicized, and embarrassing battles with Justice Black. When Black was appointed to the bench, Jackson sent him a congratulatory letter expressing "high confidence" in Black's "capacity to translate into law our aspirations for a better social order" and "carry on a continuous tradition of liberalism." After Jackson's appointment, however, philosophical differences, a clash of personalities, and abrasive competition for the leadership Chief Justice Stone had failed to provide the Court gradually took their toll; and the Black-Jackson relationship became increasingly strained. With the Jewell Ridge coal Company case, their relations approached the breaking point.
In a suit between the Jewell Ridge Coal Corporation and a United Mine Workers local, a narrow majority, affirming a ruling of the Court of Appeals for the Fourth Circuit, held that provisions of the Fair Labor Standards Act covered the time spent by miners traveling underground between the portal of a bituminous coal mine and its working face, whatever the terms of any conflicting custom or contract. Justice Black joined the majority; Chief Justice Stone and Justices Roberts, Frankfurter, and Jackson dissented. Jackson circulated a lengthy dissent. Disputing the majority's reading of the Fair Labor Standards Act's legislative history, Jackson quoted remarks of then Senator Black, one of the bill's sponsors, which tended to support the coal company's claim that federal regulations did not reach "portal to face" travel covered by conflicting customs or contracts.
Black was incensed. In a memorandum to his colleagues, he contended that his remarks were taken out of context and related to an "entirely different" bill than the version finally adopted. "If the dissent goes down as now printed," he asserted, "it will not be a fair representation of the true facts." Albeit with some caution, Justice Frank Murphy's majority opinion in the case also rejected Jackson 's reading of the legislative history as well as the dissent's use of Black's Senate remarks. But Jackson filed his dissent without deleting the offensive passages.
Nor was the battle nearly at an end. In the years since Justice Black's appointment, litigants had objected to his participation in cases reviewing the validity and meaning of statutes he had sponsored while a member of the Senate. In their petition for a rehearing, however, Jewell Ridge's counsel raised what to them was a more critical concern: Black had participated in the case even though his former law partner, Birmingham attorney Crampton Harris, had represented the union. Recusal is largely a matter of individual judgment over which a Justice's colleagues have no control. While agreeing that a rehearing should be denied, Chief Justice Stone suggested that the denial be accompanied by a statement indicating that the Court as a whole could not pass upon the propriety of a member's decision to participate in a given case. "If the per curiam goes down in this case," Justice Black quickly retorted, "please put the names of the Justices who agree to it, and leave mine out." The Chief Justice next proposed that those dissenting from the original decision file such a statement but soon withdrew that proposition as well. Justice Jackson was not so restrained. He concurred with the Court's denial of a rehearing. In a brief opinion which Justice Frankfurter joined, however, Jackson explained that Jewell Ridge's complaint "as to the qualification of one of the Justices to take part in" a decision could not "properly be addressed to the Court as a whole," adding: "Because of [a] lack of authoritative standards it appears always to have been considered the responsibility of each Justice to determine for himself the propriety of withdrawing in any particular circumstances.... There is no authority known to me under which the majority of this Court has power under any circumstances to exclude one of its duly commissioned Justices from sitting or voting in any case."
The concurrence appeared on June 18, 1945. That same day Jackson departed for Nuremberg where he was to serve as American prosecutor of Nazi war criminals. Several days earlier Justice Frankfurter had written Black a conciliatory letter explaining why he had joined the Jackson opinion. He "greatly regret[ted] the whole incident," Frankfurter assured Black, and had "not the remotest foreknowledge" that Chief Justice Stone would raise the issue during conference discussion of the Jewell Ridge rehearing petition. Nor had he any "share in creating the situation whereby Bob felt it to be his duty to make clear the issue of qualification." At the same time he assumed all would "admit the correctness of what Bob says," and that once Jackson had acted, Frankfurter "could withhold joining only by suppressing my belief in the truth."
Jackson's concurrence, of course, was more than an abstract discourse on recusal policy. In context it was a thinly veiled implication that Black should have refrained from participation in Jewell Ridge—and a particularly offensive implication in view of the fact that Black's recusal would not have affected the final outcome of the litigation. It thus is unlikely that Frankfurter's letter assuaged Justice Black's irritation at his colleagues' behavior.
Justice Jackson's absence provided a brief lull in the storm. By the spring of 1946, however, rumors of the feud were a frequent topic of Washington gossip, as were stories that Justice Frankfurter was promoting Jackson as a replacement for Chief Justice Stone, who had died in April. In May Washington Star columnist Doris Fleeson published an account of the friction afflicting the Court. Justice Black, she reported, had reacted at Jackson's Jewell Ridge concurrence "with fiery storm to what he regarded as an open and gratuitous insult, a slur upon his personal and judicial honor. Nor did he bother to conceal his contempt. An already marked coolness, especially between Messrs. Black and Frankfurter, froze into impenetrable ice." President Truman, Fleeson added, was aware of the clash. "Black says," the President had reportedly confided to a Senator, "he will resign if I make Jackson Chief Justice and tell the reasons why. Jackson says the same thing about Black."
For a time Justice Jackson, like Justice Black, declined public comment. But Jackson had long coveted the Court's center seat. And when President Truman nominated Fred M. Vinson to succeed Chief Justice Stone, Jackson's frustrations overwhelmed his judgment. On June 10, he dispatched a remarkable 1,500-word cablegram from Nuremberg to members of the House and Senate Judiciary Committees, copies of which he also provided the press. In the cablegram Jackson bitterly denounced Justice Black, accusing him of "bullying" tactics, scoring his "publicized threats to the President," and implying that Black was the source of news reports suggesting that "offensive behavior on my part is responsible for the feud on the Court." While appointment of a Chief Justice was pending, Jackson asserted, he had been unable to defend himself "without being in the position of pleading for the post." Now, he was free to respond "and chose to do so not by inspired innuendoes but over my signature." Relating his version of the Jewell Ridge affair, he insisted that his controversial concurring opinion was not part of any "personal vendetta," but instead was necessary to make clear that Justice Black's decision to sit in the case was his alone and that denial of a rehearing should in no way be construed as indicating the Court's approval of Black's decision. In the face of Black's conference threat of a "declaration of war" if any opinion were filed, Jackson added, his concurrence had also been his only way to maintain "self-respect."
At one point in the cablegram, Jackson denied saying that Black was "wrong" to sit; later, he rejected any inference that he considered Black's participation a reflection of a "lack of 'honor.'" But ultimately, he condemned "the employment of justices' ex-law partners to argue close cases," warning: "I wanted that practice stopped. If it is ever repeated while I am on the bench I will make my Jewell Ridge opinion look like a letter of recommendation by comparison."
The day the text of the cablegram appeared in the American press, a former law clerk wired Justice Black: "This outburst begins the final triumph. Congratulations on winning a real if bloody victory in the unmasking of a bad man." The telegram was filed unanswered, and Justice Black continued to decline public comment, telling reporters: "I haven't made a statement of any kind to the press since coming up here. I don't expect to make any now." As the telegram suggested, however, Jackson's cablegram was clearly more damaging to its author than to its target. One Republican Senator demanded Black's resignation, while another hinted darkly at impeachment proceedings, and still other congressmen recommended a review of the recusal policy. But the chairman of the House Judiciary Committee dismissed an impeachment inquiry as a remote possibility, and the Congress quickly lost interest in the allegations which, Justice Jackson had claimed, went "to the reputation of the Court for non-partisan and unbiased decision." President Truman informed newsmen, moreover, that he had attempted to dissuade Jackson from issuing the statement, at least until he had had an opportunity to discuss the matter with the Justice; and press reports noted Truman's "apparent" disapproval of Jackson's action.
Jackson himself made no further public statements, and when he returned to the Court the following October, he and Black resumed outwardly cordial, if essentially aloof and formal, relations. But his feelings had hardly mellowed. At one point, apparently in 1949, he drafted another scathing attack. His focus again was on the Jewell Ridge incident, but on this occasion his assault had a broader reach. As a Senator, he wrote, Black had been "one of the most persistent patronage seekers" and a man whom "a subordinate better not cross and the heads of departments rarely offended for fear of reprisal." In Senate investigations his conduct had been "ruthless," reflecting "little regard for the constitutional rights of persons he was pursuing." And his appointment to the Court had been President Roosevelt's revenge against both the Court and the Congress.
The president was angry at the Senate which had defeated his plan to reorganize the Court, and he was angry at the Court which had destroyed his favorite legislation. He could humiliate them both at a Single stroke by naming Black. However distasteful to the Senate, it could not refuse to confirm him because of its tradition of Senatorial courtesy.... The Senate would have to swallow hard and approve. The Court would be humiliated by having to accept one of its more bitter and unfair critics and one completely alien to the judicial tradition. It was a choice which would get even with them both.
During Black's early years on the bench, the memorandum continued, Jackson, "[l]ike many other Americans, [had] felt a sense of relief that it was not as bad as had been expected.... [Black] never failed to support the Government in matters essential to its economic programs." When Jackson joined the Court, he knew that Black had opposed his appointment as Chief Justice, "quite naturally preferring [Stone,] an older man from whose appointment he could anticipate a vacancy." But he had anticipated no difficulty working with Black. He had soon found, though, that Black, who believed the conclusion of a "cheap" article that he was the Court's real leader and had "mastered philosophy in one summer," "cherished great resentment" whenever Jackson failed to vote with his senior colleague "with Party regularity." Jackson was also "shocked to find," he wrote, "that Black was far to the left of anything that I had associated with in the New Deal.... [H]e embraced that form of collectivism which is so often confused with liberalism," his votes rarely going "against communist party lines."
Jackson's original draft was framed in the first person. Later, he crafted a different version. Writing this time in the third person, he applauded his own record and attacked Black's, observing at one point, for example:
Both Stone and Jackson had been among the liberal groups of the bar and of their respective parties; both had endangered their own interests by standing up for free speech, free press, and minority rights when Black was getting to the top of Alabama politics by joining the Klan and exploiting racial and religious bias. Now that he no longer found these serviceable but found them reacting to his injury, he had repudiated them and, with the zeal of a convert, outdid everybody in civil libertarianism.
Excerpted from Mr. Justice Black and His Critics by Tinsley E. Yarbrough. Copyright © 1988 Duke University Press. Excerpted by permission of Duke University Press.
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Table of Contents
One The Critics,
Two A Constitutional Faith,
Three The Bill of Rights and the States,
Four Black's First Amendment,
Five Black's First Amendment Critics,
Six The Flexible Clauses,