Hugo Black When One Considers essay

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On July 3, 1969, the Fifth Circuit Court of Appeals entered an order requiring the submission of new plans to be put into effect this fall to accelerate desegregation in 33 Mississippi school districts. On August 28, upon the motion of the Department of Justice and the recommendation of the Secretary of Health, Education & Welfare, the Court of Appeals suspended the July 3 order and postponed the date for submission of the new plans until December 1, 1969. I have been asked by Negro plaintiffs in 14 of these school districts to vacate the suspension of the July 3 order. Largely for the reasons set forth below, I feel constrained to deny that relief. (396 U.S. 1218, 1218-1219).

Black pointed out that the Brown decision came 15 years before the Alexander case, but that Mississippi and other states had failed to desegregate. He blamed this on the fact that:

in Brown II the Court declared that this unconstitutional denial of equal protection should be remedied, not immediately, but only 'with all deliberate speed.' Federal courts have ever since struggled with the phrase 'all deliberate speed.' Unfortunately this struggle has not eliminated dual school systems, and I am of the opinion that so long as that phrase is a relevant factor they will never be eliminated. 'All deliberate speed' has turned out to be only a soft euphemism for delay. (396 U.S. 1218, 1219).

Black's denial of the plaintiff's request was based upon his:

belief that there is no longer the slightest excuse, reason, or justification for further postponement of the time when every public school system in the United States will be a unitary one, receiving and teaching students without discrimination on the basis of their race or color. In my opinion the phrase 'with all deliberate speed' should no longer have any relevancy whatsoever in enforcing the constitutional rights of Negro students. The Fifth Circuit found that the Negro students in these school districts are being denied equal protection of the law, and in my view they are entitled to have their constitutional rights vindicated now without postponement for any reason. (396 U.S. 1218, 1220).

Black recognized that his position went beyond anything the Court had previously done to further the goals of desegregation and looked at the decisions that had led to postponing the desegregation plan in question. Therefore, he upheld the lower court's order allowing the postponement, based on the fact that he could not presume that the full court would share his position.

Black's Support for the New Deal

While Black's civil rights legislation may not have garnered support from Southern Democrats, his unequivocal support for New Deal legislation certainly helped accomplish some of Roosevelt's goals when he appointed Black to the Court. It is important to recall that Roosevelt's choice of Black was largely based on Black's support of the act creating the Tennessee Valley Authority and Roosevelt's Emergency Relief Appropriation Act. (Novel Guide). In fact, Black voted in favor of every single major piece of New Deal legislation introduced during Roosevelt's first term. (Novel Guide). Black's support for the New Deal legislation was not simply support for Roosevelt and for the type of legislation that he proposed to help pull the country out of the Great Depression. Instead, it indicated Black's rejection of the judicial doctrine of substantive due process, which the prior Supreme Court had used to reject much of Roosevelt's New Deal legislation. After all, most of the New Deal legislation had the overwhelming support of both houses of Congress, and Black felt that it was improper for the Court to override the legislature unless the legislature was passing unconstitutional laws. Furthermore, he believed that both the federal and state governments had the right to pass laws, and would use the Commerce Clause to justify their authority to do so, and, as a result, almost always voted with the majority and affirmed the legality of New Deal legislation when it was challenged.

For example, in United States v. Darby Lumber Co., 312 U.S. 100 (1941), Black voted with the majority and affirmed the constitutionality of the Fair Labor Standards Act. Darby Lumber Company was a Georgia company who failed to meet the standards established under the Fair Labor Standards Act, and challenged the federal government's right to interfere with Darby's right to ship products in intrastate commerce. Furthermore, the Act required companies to keep records, and Darby argued that forced record keeping was a violation of the Fifth Amendment. While the Court acknowledged that manufacture, which is what Darby engaged in, was not interstate commerce, Darby produced the goods without concern for whether they would be transported in interstate or merely intrastate commerce. (312 U.S. 100, 113-114). It found that:

Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the state has not sought to regulate their use. Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, supra; Hoke v. United States, supra.

Such regulation is not a forbidden invasion of state power merely because either its motive or its consequence is to restrict the use of articles of commerce within the states of destination and is not prohibited unless by other Constitutional provisions. It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. Seven Cases v. United States, 239 U.S. 510, 514, 36 S.Ct. 190, 191; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108; United States v. Carolene Products Co., 304 U.S. 144, 147, 58 S.Ct. 778, 780; United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, decided December 16, 1940. (312 U.S. 100, 114-115).

Black also voted to support New Deal legislation in the case of Wickard v. Filburn, 317 U.S. 111 (1942). In Wickard v. Filburn, the appellee challenged a penalty that he incurred under the Agricultural Adjustment Act of 1938, for producing wheat beyond the quota established under that act. In addition, he sought a declaratory judgment that those quotas were unconstitutional. (317 U.S. 111, 113-114). The Court disagreed with appellee's position. The Court determined that the Agricultural Adjustment Act of 1938's goal of wheat control, to avoid surpluses and shortages and thereby regulate the price of wheat, fell within the purview of the Commerce Clause. In doing so, the Court made it clear that it could regulate all aspects of Congress, as long as they had an impact on interstate commerce:

Whether the subject of the regulation in question was 'production,' 'consumption,' or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. The same consideration might help in determining whether in the absence of Congressional action it would be permissible for the state to exert its power on the subject matter, even though in so doing it to some degree affected interstate commerce. But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.' (317 U.S. 111, 124-125).

What the Court was stating is that almost every person who engages in commerce engages in interstate commerce, and that, therefore, if Congress decides to legislate in a particular area of commerce, that legislation will almost always be found to be constitutional.


Justice Black's career is very illuminating for people who wonder about how politics can influence Supreme Court decisions. Roosevelt appointed Justice Black based on Black's history as a senator and on his personal history, expecting that Black would affirm New Deal legislation while pushing through the political goals of southerners, contributing southern support for the Democratic party. Black did what was expected of him regarding New Deal legislation. As a constitutional literalist, he thought it was improper for the Supreme Court to invalidate any legislation that was not explicitly unconstitutional, and used the Commerce Clause, which had only been judicially expanded in the 1930s, to justify the increase in government power, on both state and local levels.

However, Black's career also reveals that personal ideology does not necessarily impact how a justice will vote when on the Supreme Court. Much is made of the fact that Black was a…[continue]

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