Hugo Black and the Judicial Revolution
Justice Oliver Wendell Holmes is reported to have attributed much of John Marshall’s greatness to the fact that he was there—present in the early shaping years. It is also true of Marshall, Holmes himself, and a number of other notable justices that they were there for a long time. The serious-minded ought not assess such statements too lightly, but they are justified in noting other characteristic qualities of great justices, such as intellectual power and clarity; the courage of conviction; an instinct for essentials; and persuasiveness with brethren of the Court, the bar, and the public.
By such criteria, Hugo Black belongs in the category of influential judges, and high on the list. Gerald Dunne’s account uses still another basis to judge Black’s importance: Black as Justice was participant, protagonist, and sometimes driving force in great changes in the thinking of the Supreme Court.
One of the virtues of Dunne’s account is his emphasis on the complexity of and the contradictions in Black’s character. In so much writing about the Court, its work, and its divisions, justices are forced into categories—liberal or conservative, activist or defender of the status quo—and it is a matter of relief, even rejoicing, to find a biographer who understands that paradoxical, shifting human qualities cannot be thus constricted. Black the man, not just Black the Justice, is Dunne’s subject, and the paradoxes and contradictions abound.
By inference rather than explicit statement, Dunne links Black’s character to his background and development. Born in the hill country of Clay County to a storekeeping father and given a strict Baptist upbringing by a family very concerned about education, Black earned a law degree at twenty, and built a career in Birmingham as a lawyer for unions and the poor, a prosecutor, and a police-court judge. Ambition, intelligence, and combativeness were notable traits in his personality; so was a strain of thought and behavior most easily classed as Populist. Ambition and demagoguery, Dunne suggests, were not absent, but they were not the whole story.
The climax of Black’s early career was election to the United States Senate, after a campaign marked by energy, skill with publicity, and appeal to the poor and unprivileged. His newspaper advertisements, in an obvious thrust at the lists of notables sponsoring opponents, read “Paid for by himself.” Black’s election was also important for an episode that was later to create great difficulty and controversy in his career. The Ku Klux Klan was a power in Alabama politics, and Hugo Black, for whatever reasons, joined; he resigned in time for the Senate campaign, but the resignation (accusers could say) reads like a formality, and he unquestioningly had Klan support.
The new Senator made something of a reputation as a radical, and began a course of self-education. He also faced, in 1928, a severe test for a politician in officially dry, Protestant, Klannish Alabama: the nomination of Alfred E. Smith of New York, an urban Catholic. Black’s Senate colleague, J. Thomas Heflin, probably the most notorious of anti-Catholic prominent politicians, left the party. Black formally endorsed Smith; but he had not attended the convention that nominated him, and he remained quiet through the whole campaign, as Dunne emphasizes.
The significant Senate career of Hugo Black began with the Depression and with the election of Franklin Roosevelt and a Democratic Senate and House. Black’s reelection in Alabama gave him a new position in the Senate; his main attention was on the recovery and reform of the crippled economy. He sponsored labor bills and he joined with George Norris in the battle for the Tennessee Valley Authority—a continuation of an old feud with Alabama Power. But his notable success, according to Dunne, was not legislative, but investigatory.
In fact, Black’s conduct of Senate inquiries is, with the Klan episode, a major thread in Dunne’s outline of his subject’s career. Certainly, it gave Black his first national reputation. Chairing a committee investigation of public utilities, he displayed...
(The entire section is 1706 words.)