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f C H A P T E R 4 Hugo Black & the Perils of Literalism With Hugo Black we come to a rare example of a Supreme Court justice doubling as a national hero. In the twentieth century only Oliver Wendell Holmes and Earl Warren have had greater public recognition for their role as justices, and in the case of Chief Justice Warren not all of the public ’s sentiments were complimentary. Not so with Hugo Black. He was beloved, as was Holmes. Both served well until old age—Black until he was eighty-‹ve years old and Holmes until he was ninety-one—and both were known as dissenters whose dissents were later vindicated. That, at least, is how Black portrayed himself in 1968 when he had the chance near the end of his career and life to be interviewed on national television by Eric Sevareid and Martin Agronsky.1 With their help, he portrayed himself as the champion of civil rights and individual liberties. His was an unwavering commitment to a strict interpretation of the Constitution and all the protections it afforded, especially the First Amendment and its directive that “Congress shall make no law . . . ,” which Black took literally and absolutely. And it is of course true that Black was a leader in the Court’s civil rights revolution, though perhaps not in the way that most Americans understood . There is, in fact, a central paradox about Hugo Black and the liberal credentials that helped make him a national hero. He was without question the leader of the liberal faction during the principal 1941–54 period under review here. This liberal faction, however, was more a dissenting than majority voice, however, once the Court moved to the right with Truman’s 99 four appointments. Somewhat surprisingly, given the liberal positions he had staked out in the 1940s and 1950s, when the Court later hit its full liberal stride in the early 1960s, Black was not leading the liberals as his earlier credentials might suggest that he would. This was not only due to the appointment of Earl Warren as a strong, liberal chief justice. It was because Black, by this time, had taken a principled, contrarian stand and refused to follow the Court in expanding constitutional rights beyond the literal language of the Constitution. The irony of Black’s career is that the Court did not follow him in the 1941–54 period in either of his signature arguments—(1) that the First Amendment imposed absolute limitations on the government’s right to silence free speech and (2) that the Due Process clause of the Fourteenth Amendment incorporated all of the Bill of Rights and made them applicable to the states—because both arguments too liberally interpreted the Constitution. The Fourteenth Amendment incorporation argument did in fact help lead the Court to expand the application of federally guaranteed rights to the states, though under a different theory, one that Black resolutely opposed but nonetheless took credit for in his last years because it brought to the states the federal rights he had championed for a career. Black himself conveniently overlooked this grand irony when he made the case to the country in his television interview that he rather than Earl Warren was the great liberal leader, and in so doing he tried to obscure the fact that for the last decade of his career he tried to erect roadblocks to the expanded liberalism that Douglas, Warren, and others were trying to advance. For Black, in the end, his literalist, sometimes idiosyncratic view of constitutional interpretation tested whether his approach to judging was as principled and as objective as he consistently claimed it to be. And unfortunately the test ‹nds him wanting, due largely to his inability to deal with advancing old age. f Born February 27, 1886, in rural Clay County and raised in Ashland, Alabama, Hugo Black was raised in relative prosperity made possible by his father’s success as a merchant, amid the county’s poverty. His father’s alcoholism , however, brought Black embarrassment and made him determined to always be in control of his mind and body. In contrast, his mother pro100 The Great Justices 1941–54 vided a different sort of motivation. She was an indefatigable believer in his promise, something that always stayed with him. The steel will that would come to de‹ne him as a lawyer, senator, and justice revealed itself early on. For example, he and his sister Daisy were both...

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