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CJRColumbia Journalism Review

September/October 1995 | Contents

Absolute Justice

review by James Boylan
Boylan is the founding editor of CJR.

Hugo Black: A Biography, by Roger K. Newman. Cornelia & Michael Bessie/Pantheon. 741 pp. $30.

None of the five dozen justices appointed to the United States Supreme Court in this century more deserves a monumental biography than Hugo Black. He is deserving not so much for his longevity, or industry, or eloquence, although all were considerable, but because he was the one justice who most effectively translated New Deal liberalism into constitutional terms and defended it longest. Roger K. Newman, research scholar at the New York University School of Law, has devoted a decade and more to creating such a monument; his industry has produced a biography that is at the same time accessibly analytical and intimate, a tribute to a life of achievement.

Black has been dead for almost twenty-five years and the old liberalism -- the vision of human rights protected by an activist, humane government -- is a tattered vestige. Yet the theses around which Black built his work are still more or less in place: (1) that the Bill of Rights must be applied at all levels of government, not merely in federal matters; (2) that the First Amendment is the keystone in the Bill of Rights, and (3) that the First Amendment is all but absolute, its core protections beyond the reach of government.

 It is clear from Newman's highly detailed narrative -- he is more than 40 percent through the book before he seats Black on the Court -- that Black's First Amendment assumptions did not develop from any particular love for the press. Instead, his whole career reveals persistent concern for individual rights and conscience against government and other vast social institutions.

He came from rural Alabama origins, earned a degree from the then tiny law school at the University of Alabama and, through determination and intelligence, became one of Birmingham's most formidable trial lawyers, especially outstanding in winning compensation for injured workers. Before the age of forty, he decided that he would be Alabama's next senator. Calculating that support of the politically active Ku Klux Klan was necessary, he spent two years as an active Klan member, although steering clear of the KKK's violence.

He was sent to Washington in 1926 -- a Democrat as almost all southerners were then -- and won a second term as Franklin D. Roosevelt entered the White House in 1932. He soon became the New Deal's most strident advocate in the Senate, using his litigator's skills to investigate the "economic royalists" that FDR attacked in his 1936 campaign.

Roosevelt, reelected in a landslide, sought next to defeat the Supreme Court, which had overturned New Deal legislation, by expanding it. The scheme collapsed in Congress, but Senator Black fought for court-packing to the last. Perhaps as a reward, Roosevelt nominated him for the first Court vacancy, in mid-1937. Thanks to a Pittsburgh Post-Gazette reporter, Ray Sprigle, Black's KKK record was soon public knowledge, and he had to weather the storm. The episode left him with an abiding suspicion of journalists and journalism.

Once on the court, Black left little room for doubt in his beliefs. For example, in Chambers v. Florida (1940), he wrote a ringing opinion upholding the rights of four southern blacks from whom police had coerced a confession of murder. Even so, the KKK question dogged him, and lingered in historical controversies after his death. Newman, although Black's advocate, does not slight the KKK period or the makeshift rationales that Black later offered for his membership. In fairness, it must be said that Black more than paid for his KKK affiliation with his support of the 1954 school desegregation decision, which rendered him until almost the end of his life a virtual exile in his home state.

As an advocate of human rights, Black stumbled during World War II, most notably in his opinion confirming the right of the military to intern people of Japanese descent for the duration. But he soon made his mark as an advocate of individual freedom of speech from government regulation or compulsion. He became locked in a contest with his most formidable rival, Felix Frankfurter, over their competing visions of the Court's role -- Frankfurter's, of a cautious, balancing court that avoided "political" questions; Black's, of a court that issued ringing declarations of rights.

By the time Senator Joseph McCarthy emerged as point man in the postwar Red Scare, Black was in a distinct minority, sandwiched between Frankfurter's converts and Truman's conservative, lackluster appointees. The fifties became his time of trial, for he would not give an inch to the notion that communism was so great a danger that it necessitated erasure of freedom of speech and freedom of association. His stand placed him personally in jeopardy: he feared that if he had to write a lone dissent in Dennis v. United States, centering on the conviction of communists for what Black considered their exercise of free speech, he might be impeached. The extent to which the security mania had saturated Washington is clear in Newman's disturbing reminder that Chief Justice Fred Vinson may have authorized Federal Bureau of Investigation surveillance of Black and his fellow justice William O. Douglas in 1953 during the Rosenberg case.

Black's conception of an absolute First Amendment emerged from his experiences in the McCarthy era. He usually avoided writing scholarly articles or giving formal lectures, but he agreed to present his views at New York University early in 1960. In his presentation, he went through the Bill of Rights in reverse order, citing an absolute, irreducible core in each amendment. Of the First Amendment he declared that it was "composed of plain words, easily understood," and was in its entirety nothing "less than absolute," hence essentially beyond the reach of government action.

Commenting on the lecture, Newman views it in retrospect as having been basically tactical -- that is, a way of placing First Amendment debate on a ground where he, Black, was strongest. Later justices never agreed that the First Amendment is absolute, but Black's formulation remained to a degree the measurement against which First Amendment cases had to be decided. Even Black himself placed limits on the absolute. Although he sympathized with the civil rights movement and abhorred the Vietnam War, he could not bring himself to view as free speech the disruptive or symbolic protests associated with these crises. He was in the minority in the Tinker case, which upheld the right of Des Moines schoolchildren to wear armbands to protest the war.

Through his years on the Court, Black inevitably dealt with cases involving the press. One of his earliest such opinions was Bridges v. California (1941), which upheld the constitutional right of newspapers to criticize judges and courts. Equally significant from the journalistic perspective (although it is given only glancing attention by Newman) was Associated Press v. United States (1945), in which he wrote the opinion that struck down the AP's monopolistic membership practices; he observed that "a free press is a condition of a free society" and added: "Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not."

In the two great press cases of his final years, Black staked out the absolute position for himself. In New York Times v. Sullivan, William J. Brennan, Jr., who succeeded Black as the Court's leading First Amendment theorist, devised the "actual malice" standard of liability, which ultimately opened the way to the convoluted libel trials of subsequent decades. Although concurring, Black insisted that public officials should be utterly unable to sue for libel, for the Constitution granted the press "an absolute immunity for criticism of the way public officials do their public duty." Similarly, near the end of his career, in the Pentagon Papers case, he declared that the federal government's injunctions against the newspapers publishing secret government documents amountedto "a flagrant, indefensible, and continuing violation of the First Amendment."

 By the time he retired, seriously ill, less than three months after the Pentagon Papers case, Black had served more than thirty-four years, twenty-six of them as the senior justice, the longest such seniority in the Court's history. He died eight days after his retirement.

One of the many strengths of
 Newman's biography is its emphasis not only on Black's jurisprudence
 but on his heritage -- the infallible courtesy that kept him free of personal feuds, his enormous industry rising from his hardscrabble beginnings,
 his representation of the often forgotten southern strains of liberalism, individualism, and concern for equal justice.

Newman points out the felicity -- and southernness -- of one key sentence in his Pentagon Papers opinion: "And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell." The phrasing was adapted from a song he had known since childhood, "I Am a Good Old Rebel."