Hugo Black When One Considers

Hugo Black

When one considers the fact that Hugo Lafayette Black was appointed to the Supreme Court by President Franklin D. Roosevelt, and confirmed by an overwhelming Senate vote due to Roosevelt and the Senate's joint goals of packing the Supreme Court so that it would further the goals of the Southern Democrats and allow New Deal programs, Black's judicial legacy differs from what one would expect. Rather than rubber-stamping Roosevelt- inspired legislation, Black proved himself to be a careful and cautious jurist, who showed tremendous respect for the Constitution and for the rights of the American people. It is true that Black's views of constitutional rights were expansive for his time period, though it would be inaccurate to describe Black as a judicial activist. As demonstrated in some Black's opinions, he did not believe that the Supreme Court's role was to create new constitutional rights, but merely to ensure that those rights guaranteed to the American people by the Constitution were not infringed by the government. As a result, he was able to view the Constitution in a manner that enabled much of Roosevelt's New Deal legislation because his expansive view of the Constitution permitted such programs. However, that expansive view also resulted in Black being considered one of the more liberal members of the Supreme Court in the 20th century, because of the pivotal role that Black played in civil rights disputes. Looking at Black's legal career, it is clear that Roosevelt did not accomplish both of his goals with Black's appointment. While Black permitted New Deal legislation to stand, his legal decisions often put him in opposition to the Southern Democrats.

Winning Southern Voters

It was certainly reasonable for Roosevelt to believe that Black would further the goals of Southern Democrat voters. After all, Black had been a legislator from Alabama and had furthered the goals of the Southern Democrats. Support for New Deal legislation was something that most Southern Democrats encouraged, because the Deep South was disproportionately impacted by the Great Depression. Moreover, one must recall that America at that time was still struggling with how to reconcile African-American rights with hundreds of years of treating African-Americans as chattel. The Deep South was firmly entrenched in Jim Crow, and southern blacks had little chance of being treated as equal human beings under any laws in the nation. Black seemed to embody this attitude towards African-Americans. He was a deeply southern man and very proud of his southern heritage, which carried with it a tremendous legacy of racism. Not only had he been a member of the Ku Klux Klan, but he also engaged in a famous filibuster with the goal of preventing an anti-lynching law. (Novel Guide). Therefore, it seemed certain that Black would continue to further the goals of Southern Democrats once he was a member of the Supreme Court, just as he had when he was a legislator. While many politicians seem unaware of the distinction, Black seemed acutely aware that his role as Supreme Court justice was materially different from his role as a legislator, and he frequently voted in ways that alienated southerners. However, there were several decisions where Black's votes placated Southern Democrats and helped further Roosevelt's goal of currying the southern vote. In fact, it must be remembered that from the time of the New Deal until Lyndon Johnson signed the Civil Rights Act of 1964, the south was predominantly Democratic.

Just like the modern southern United States, the South of Black's day contained the Bible belt, and many southern voters were concerned about the issues of sexuality and morality. Black was able to demonstrate his support for this moral point-of-view, ironically enough, in a case that involved a challenge of a Connecticut law. In Griswold v. Connecticut, 381 U.S. 479 (1965), the U.S. Supreme Court invalidated a Connecticut law that prohibited the use of contraceptives, based on a woman's right to privacy. This reasoning would be expanded upon by the Supreme Court at later times, and, ultimately proved to be the foundation of the Court's ruling in Roe v. Wade, 410 U.S. 113 (1973). In Griswold, the Appellants the Executive Director of the Planned Parenthood League of Connecticut and its medical director were convicted as accessories for giving married persons information and medical advice on contraceptives and prescribing contraceptives in violation of a Connecticut statute prohibiting use of contraceptives. The Supreme Court invalidated the statute, based on the concept that marital privacy was one of the rights guaranteed by the Constitution. Black dissented to the Court's decision.

Black began his dissent by making it clear that he, personally, did not believe that Connecticut's contraceptive policy was an appropriate one. In fact, he stated:

In order that there may be no room at all to doubt why I vote as I do, I feel constrained to add that the law is every bit as offensive to me as it is to my Brethren of the majority and my Brothers HARLAN, WHITE and GOLDBERG who, reciting reasons why it is offensive to them, hold it unconstitutional. There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court's opinion or by those of my concurring Brethren to which I cannot subscribe - except their conclusion that the evil qualities they see in the law make it unconstitutional. (381 U.S. 479, 507).

Black distinguished speech from conduct, and made it clear that the fact that speech accompanied the appellants' actions, much like it accompanies the vast majority of actions, does not mean that those actions are then protected by the First Amendment. (381 U.S. 479, 508). Furthermore, while Black acknowledged that privacy was part of the Fourth Amendment's guarantee against unreasonable searches and seizures, he believed that it belittled "that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given." (381 U.S. 479. 509). The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

The reason that the Griswold case was so important for southern voters went beyond the religious issues tied in with contraceptive laws. While many modern Americans believe that the issue of slavery was the sole reason for the Civil War, it is important to realize that many southerners, especially those who did not own slaves, viewed the dispute leading to the Civil War as a question of states' rights vs. The rights of the federal government. An activist interpretation of the Constitution, which granted state citizen greater rights than those guaranteed by the Constitution, was likely to result in the Supreme Court invalidating laws passed by individual states, which posed a tremendous threat to states that were still in the process of expanding their laws in the period after Reconstruction.

However, it must be remembered that not all of Black's opinions supported Southern Democrat ideals. In fact, it is reasonable to wonder if civil rights would have advanced to their current position had Black not been a member of the Supreme Court during that pivotal period in American history. There is certainly a difference between the Supreme Court's opinions regarding race and equal protection when Black is a member of the Court and those decisions made both before and after his tenure with the Court. Of course, Black was part of the Court's unanimous decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). However, Justice Warren wrote the Court's decision in that case, giving little insight into how Black would view that issue. However, Black's feelings on the issue of desegregation were made perfectly clear in the opinion he wrote for the majority of the Court in Alexander v. Holmes County Board of Education, 396 U.S. 1218 (1969). In that case a group of African-American litigants was seeking to challenge Mississippi's request for a delay in implementing the desegregation that had been mandated by prior Supreme Court decisions. As a supervisory justice overseeing the states' desegregation plans, Black had reluctantly agreed to the delay, but had urged the National Association for the Advancement of Colored People to challenge the delay, which they did.

On its surface, the fact that Black denied the petitioner's request challenging the delay makes it appear that he was hindering desegregation. However, a reading of Alexander v. Holmes County Board of Education illuminates just how wrong that first impression is. According to Black:

For a great many years Mississippi has had in effect what is called a dual system of public schools, one system for white students only and one system for Negro students only. 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: