Hugo Black (1886 - 1971)

Hugo Black was born on February 27, 1886, in Harlan, Alabama. Hugo Black was the youngest of 8 children, and his mother, Martha Toland Black, was an educated woman who gave Hugo his lifelong love of reading. After attending a medical school for a year at age 17, Black learned law in a two-year undergraduate program at the University of Alabama. An intelligent and ambitious man, Black  moved to Birmingham, Alabama, and became a successful trial lawyer, handling personal injury, criminal and other cases. Black was elected prosecutor of Jefferson County in 1914, and remained in office until 1917, when the United States entered World War I. Black enlisted in the Army, was commissioned a captain, and remained in the United States throughout the war. In 1921, he married Josephine Foster. They had three children, and were married thirty years when she died. Black married Elizabeth Seay in 1957, and they remained married until his death in 1971. Black ran for the United States Senate in 1926, and was elected in part with the support of the Ku Klux Klan, of which he'd been a member from 1923-25. Black was a fiery populist in the Senate, and upon Franklin Delano Roosevelt's election in 1932, became of FDR's most fervent New Deal supporters in the Senate.

In February 1937, FDR announced his court-reorganization plan. During his first term, FDR was unable to nominate anyone to the Supreme Court, which struck down several New Deal acts. After his landslide reelection in 1936, FDR began to plan to overcome Supreme Court opposition to the New Deal. His plan was to increase the size of the Court. The legislation allowed him to add one member to the Court for each sitting Justice who had reached the age of 70 and remained on the Court, up to a maximum of six appointments. Not so coincidentally, there were six Justices over the age of 70. Critics called it a "court-packing" plan. FDR's idea created a firestorm. Eventually, the Congress would reject the plan, FDR's power would be trimmed, and the United States would fall further into depression. One of FDR's supporters in the Senate was majority leader Joe Robinson of Arkansas, who promised to get the legislation through and was promised the first appointment to the Court. When Robinson died of a heart attack while the Senate was deliberating the bill, the bill lacked a sponsor powerful enough to obtain its adoption by the Senate. It failed. In the meantime, Justice Willis Van Devanter retired, for Congress had adopted a law giving pensions to retired federal judges.

Black, who strongly supported FDR's court reorganization plan, was nominated by FDR to replace Van Devanter. Given senatorial courtesy, Black was confirmed nearly immediately. After confirmation, but before he took his seat on the Court, the news of Black's former membership in the KKK was made public. Black survived the furor, and remained on the Court for the remainder of his life. Black had a positivistic, almost formalistic understanding of the Constitution, a consequence of his distaste for the actions of the pre-1937 Court. Black detested substantive due process, even after it changed shape. For Black, substantive due process was impermissible whether used to protect economic or noneconomic interests. One consequence of Black's view was his dissent in Griswold v. Connecticut, in which the Court held unconstitutional Connecticut's law barring the purchase of contraceptives. Black appeared to see in substantive due process a natural rights understanding of the Constitution. For that reason, Black may also be considered a positivist. Natural rights conceptions were irrelevant to Black, If the text of the Constitution prohibited government from taking some action, then that was it, but if the text did not prohibit that action by the government, it was not prohibited. Black was also an absolutist and literalist. The free speech clause of the first amendment, which stated that "Congress shall make no law" infringing the right to speak barred all laws infringing speech, for the text spoke of "no law." Relatedly, if the action were constitutionally prohibited to the federal government, Black assumed that the prohibition applied to state governments as well. This "total incorporation" approach suggested that all of the first 8 amendments to the Constitution applied with equal force to both federal and state governments.

Black retired from the Court on September 17, 1971, and died eight days later, on September 25, 1971. He served on the Court for 34 years and 1 month. 

Further reading: Roger K. Newman, Hugo Black (1994); Howard Ball and Phillip J. Cooper, Of Power and Right (1992); James F. Simon, The Antagonists (1989).