by Jim Newton
From his earliest time with the brethren, it was clear that Jackson belonged among them. A case in point was his decisive impact on the Court’s view of religious freedom. Shortly before Jackson joined the Court, Frankfurter had written for the majority in a case brought by Jehovah’s Witnesses who objected to their children being forced to pledge allegiance at the opening of the school day. Frankfurter, who always resisted granting special protection to First Amendment rights, was unmoved by the Witnesses, concluding, “The ultimate foundation of a free society is the binding tie of cohesive sentiment.”19 He added his familiar note that the legislature, no less than the Court, is committed to “the guardianship of deeply cherished liberties” and with that, upheld the compulsory pledge against the objections of the Witnesses.
Three years later, Jackson had joined the bench, and World War II was at its height. Again, the Court considered the pleas of the Witnesses, this time along with the PTA, Boys and Girls Clubs, and other civic organizations in West Virginia. Drawing its support from the Court’s earlier ruling by Frankfurter, the state had ordered a compulsory flag salute, and had directed that any student who refused to take it would be found insubordinate and expelled.20 Nothing of consequence had changed since Frankfurter’s opinion in 1940; if anything, the years of war had only hardened the patriotic impulses behind Frankfurter’s earlier decision, which won a majority of the Court. But a new voice had arrived in the form of Jackson, and it was a persuasive one. Jackson’s opinion witheringly dissected Frankfurter’s reasoning, overturning it with a new and magnificent conception of the relationship between patriotism and government power:
To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.21
It was, however, Jackson’s most memorable paragraph that established his reputation as the Court’s prose poet:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. 22
Justices Douglas and Black, who had joined with Frankfurter in 1940, now abandoned him for Jackson and the poetry of his logic. Frankfurter was not used to being outthought, and he responded with a personal dissent that crystallized his discomfort with the self-restraint he adopted to fulfill what he believed was his judicial duty. “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution,” he wrote. “Were my purely personal attitude relevant I should whole-heartedly associate myself with the general libertarian view in the Court’s opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew, nor Gentile, neither Catholic, nor agnostic. . . . As a member of this Court I am not justified in writing my private notions of policy into the Constitution.”23 This time, Frankfurter’s exhortation of restraint was unpersuasive; freedom, as articulated by Jackson, carried the day over deference.
Jackson’s stirring opinion in West Virginia Board of Education v. Barnette demonstrated his independence from Frankfurter, but the two men in fact were doctrinally not so different. Both were New Deal liberals, determined to allow Roosevelt the opportunity to lead the nation with a minimum of judicial interference. Thus, through their early years together, Jackson and Frankfurter generally upheld the government, and despite Frankfurter’s dismay over the flag cases, Jackson’s real rival was not the Harvard law professor but rather the Southern individualist anchor of the Court wing that Frankfurter sneeringly dubbed “the Axis.” That justice was Hugo Black.
Hugo Lafayette Black was the youngest of eight children, born on a rainy night in 1886 in the backcountry of Alabama, “a Clay County hillbilly,” as he described himself.24 He grew up poor but in an atmosphere of learning, of farming and small-town stores and a home full of books—a Southern version of Earl Warren’s Western childhood. But where both Warren and Black were taught to love reading, Hugo Black’s personal library was a particularly distinguished one. Young Earl Warren read Peck’s Bad Boy; young Hugo Black was given Shakespeare, Milton, and the Bible.
Black’s ascent through the country politics of post-Civil War Alabama began, as Jackson’s did in New York, with a small-town law practice. Unlike Jackson, who was lured to government service by appointment, Black sought it through politics. He was elected to the Senate as a Democrat from Alabama in 1926, and there joined Roosevelt as an aggressive proponent of the New Deal. Black was armed with an abiding sense of personal loyalty, an extraordinary memory and an intensely probing intellect, a man whose searching mind was in “constant intellectual rebellion,” biographer Roger Newman notes in his extraordinary study of the justice.25 Black joined the Senate in 1927, starting slowly but building into a forceful legislator who used his position to bully opponents and champion friends, including labor and especially President Roosevelt. He was gracious and generous, in love with his wife and an enveloping, devoted father to two sons and a daughter. But Black could be vicious in a fight, “a cruel strategist with a biting tongue. . . . Men who had crossed swords with him rarely forgot or forgave the experience.”26 Within a short time, the Senate was full of men who had their grudges with the senator from Alabama.
Court-packing did not give Roosevelt the spots he had hoped for on the Court, but time yielded what politics did not, as Roosevelt’s reelection in 1936 extended his time in office. Black had demonstrated his loyalty to the New Deal and had supported Roosevelt in the Court-packing debacle as well. When it came time at last to name a justice of his own, Roosevelt predicted that the Senate would be forced to take Black because of its long tradition of senatorial courtesy, notwithstanding Black’s unpopularity in that body and the persistent rumor that he had been, or even might still be, a member of the Ku Klux Klan. With a flourish, FDR signed the nominating letter in front of Black and sent along the name to the Senate.
During the confirmation process, some senators and others rumbled quietly about the rumors of Black’s Klan membership. He did not address them publicly but allowed colleagues to deny them for him. With that matter on the periphery of the debate, the Senate, as FDR had predicted, fell into line behind a colleague and confirmed him just five days after the president sent the nomination to the Hill. Black then sailed for Europe. While he was away, Ray Sprigle, an enterprising reporter from the Pittsburgh Post-Gazette, traveled to Alabama, where he struck up a relationship with a former Grand Dragon. The Klansman gave Sprigle Black’s Klan membership card, a list of committee assignments, and his resignation from the organization, among other things. The story broke as a series in September 1937, and Sprigle not only presented the evidence that Black had been a Klansman but also suggested that he still was (Black had, in fact, resigned from the Klan at the outset of his 1926 Senate campaign). That placed the Senate in an awkward position, as it had just confirmed Black and now was faced with the jurisdictional debate over whether it still could take action against a justice who had been confirmed but not yet seated. Black retreated into silence, fending off, among others, a young James Reston who tried and failed to elicit comment from him for the New York Times.27 Eventually, however, the uproar became too much for Black to ignore. He returned home and delivered a radio address to the nation; so anticipated was
it that it attracted the second-largest radio audience of all time up to that point in history, surpassed only by Edward VIII’s abdication of the British throne. With millions tuned in across America, Black admitted that he had been a member of the Invisible Empire, denied any current ties to the order, and emphasized that his liberal record in the Senate made clear that his membership had been practical, not heartfelt. With that, he refused to speak of it again, and took his place on the Court.
Soon enough, the nation would be convinced that Black was no Klansman. He went, the old joke had it, from dressing up in white robes to scare black people to dressing in black ones to scare white people. Hugo Black soon developed a vigorous constitutionalism that was at once strict and personal, empowering and limiting. Black believed that the Constitution and its Bill of Rights meant precisely what they said. Thus, when the First Amendment stated that Congress shall make “no law” respecting establishment of religion or abridging speech or press, Black assumed it meant exactly that—no allowances for minor abridgements or insignificant aid to religion. No law, to Black, meant no law. That was true across the rest of the Constitution and the Bill of Rights as well. So devoted was Black to its literal language that he carried, until the day he died, a copy of the Constitution in his jacket pocket.
Black was a gracious gentleman, but a tough one, and the cloister of the Court did nothing to diminish that streak in him. Inevitably, his ambition drove him up against colleagues on the Court, especially Jackson. The object of their fight was the chief justiceship, as that seat suddenly became open in 1946 with the death of Harlan Fiske Stone. Black and Jackson each had reason to believe he might ascend to the Court’s center chair—Black was the senior Democratic appointee and Jackson had been promised consideration for the job before. Their rivalry was intensified by mutual disdain. They also had just concluded a bitter debate over a mine workers’ case from which Jackson believed Black should have recused himself because of his previous Senate action on the matter and because the lawyer for the mine workers’ union was a former law partner from Black’s Alabama days.28 Black refused, casting a fifth vote in favor of the United Mine Workers. Jackson wrote the dissent, joined by Frankfurter, Chief Justice Stone, and Owen Roberts. In addition to substantive differences over the case, which involved overtime pay for mine workers, Jackson believed the majority had rushed its decision in order to help John Lewis and the mine workers prevail in a strike. Jackson left “seething,” and considered resigning from the Court.29 When the losing side in the mine workers’ case appealed to the Court for rehearing, the appeal was rejected, but Jackson and Frankfurter released a statement noting that they could find no authority to “exclude one of its duly commissioned Justices from sitting or voting in any case.”30 Their clear suggestion, though one not widely noticed at the time, was that had they been able to find such an authority, they would have used it against Black. The denial for rehearing was released on June 18, 1945. That same day, Jackson, exhausted by the Court’s infighting and eager to return to advocacy, left for Nuremberg, where he was to serve as the lead prosecutor in the trial of Nazi war crimes.
With Jackson away, reports circulated in Washington that Black and Douglas were threatening to resign if Jackson were promoted above them. Then, on May 16, the Washington Star’s Doris Fleeson reported on what she described as the “Supreme Court feud” between Black and Jackson. The story was cast sympathetically toward Black, and its insights into the Court, particularly into the coal and mine worker cases, suggested that Black could have been a source for the reporter—a suggestion strengthened by the fact that Fleeson was a friend of Black’s and a frequent guest in his home. Jackson, then immersed in the war crimes trials, waited until Truman had picked Vinson for chief justice, then succumbed to his disappointment.
Jackson cabled Truman from Nuremberg to complain that he believed he had been passed over because of Black. Jackson used the cable to tell his side of the mine-worker controversy and hinted that he now was considering leaving the Court. Truman replied quickly that Jackson was “grossly misinformed,” that he had not discussed the chief justice position with Black or any other justice, and that he had not even read Fleeson’s article.31 Truman urged Jackson to let the matter go, and pointedly advised him not to release his cable. Jackson chose not to listen. Without telling Truman, Jackson consulted his son and another associate, redacted some of the personal insults about Black from his cable to Truman, and then sent it to congressional leaders at the same time that he made it public to reporters. The reaction was swift. Some of Jackson’s colleagues were appalled at his discussion of the confidential Supreme Court conference and believed he would be forced to leave. Black, amazed at Jackson’s self-immolation, withdrew into silence and let the matter pass. In time, Jackson returned from Nuremberg and rejoined Black on the bench. Relations were understandably frosty, but it is the unusual and endearing character of the United States Supreme Court that nine justices must find ways to disagree and yet return, day after day, to new cases and new contests for their values.
With Jackson back among the brethren, Black plunged into the central quandary of his jurisprudence and one of the defining debates of twentieth-century American law. Because the Bill of Rights was adopted as a mechanism for restraining the federal government only, it had limited effect in American life. States were not constrained by its language, no matter how rigorously or literally one applied it. But in the years after the end of the war, Black studied deeply—if selectively—the history of the Fourteenth Amendment. He emerged with an insight that reshaped first his philosophy of judging and ultimately the nation itself. Taken as a whole, the Fourteenth Amendment extended the protections and requirements of the Bill of Rights to all the states, Black concluded. That view, known as incorporation, represented a break from the Court’s precedents, as it had held during the 1830s that the Bill of Rights restrained only the federal government, in effect allowing the states to infringe the rights protected under those amendments.
Rather than extend the entire Bill of Rights to the states, the Court in those years began the piecemeal process of deciding which rights were so important that the states were prohibited from violating them under the Fourteenth Amendment. That approach was known as selective incorporation. Frankfurter, one of its advocates, argued, for instance, that police could not engage in conduct that “shocks the conscience,”32 but still refused to accept that the entire Bill of Rights was binding on state governments. Black rejected that doling-out of rights and, with it, launched his historic debate with Frankfurter.
Black first expressed his incorporation view in a 1947 opinion that he later called his most important. In Adamson v. State of California, Black dissented from the majority when it concluded that the prosecutors in the murder trial of Admiral Adamson, a black California man (Admiral was his name, not his rank—Adamson had no connection to the Navy), were entitled to comment on Adamson’s decision not to take the stand at his trial. Under federal rules, that would have been barred by the Fifth Amendment, which prevents defendants from being forced to testify against themselves and, by implication, bars punishment for those who invoke that right. But the majority in Adamson concluded that the Fifth Amendment’s protection against self-incrimination did not apply in state prosecutions. It was, the majority concluded, a matter of “settled law” that the Fifth Amendment right did not extend to state trials, because the Bill of Rights limited only the federal government, not the states. Black disagreed:
My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment’s first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights applicable to the states.33
Black’s “study of historical events” was limited to the Congressional debate over the Fourteenth Amendment and did not address t
he larger discussion that accompanied ratification. That alone made it suspect. When his clerk showed a draft of Black’s Adamson dissent to Frankfurter, the justice read it while the clerk waited. Reaching the end, Frankfurter tossed it aside. “At Yale, they call this scholarship?”34 he demanded. Black was not one to take Frankfurter’s condescension, however. From that moment on, he would shrug off Frankfurter’s disapproval and apply the letter of the first ten Amendments to the states. Moreover, Black would insist that his literal reading was not just an opportunity to extend civil liberties but was in fact his judicial obligation. Black thus fused original intent—at least his interpretation of the Fourteenth Amendment framers’ intent—with judicial restraint and civil liberties into a single, uniquely personal philosophy. Through the late 1940s, much of Black’s effort would be made in dissent, thwarted by Frankfurter, Jackson, and the other justices arrayed against his Axis. And as the 1950s opened, Black fell further into gloom. The death of his wife at the end of 1951 left him bereft. His children helped him rally, as he slowly did. Black’s day was coming.
The Black-Jackson feud was the Court’s most public airing of its factionalism, but its most combative member was William O. Douglas. It is difficult to imagine a man more intellectually capable or temperamentally ill-suited to sit on the Supreme Court than William Douglas. Douglas was a man of mountains, self-consciously contemptuous of convention. Born in Minnesota and raised in Yakima, Washington, Douglas was the Court’s only Westerner until joined by Warren. But where Warren came from politics and loved company, fellowship, and family, Douglas relished his isolation. He was the first Supreme Court justice to divorce while in office and would go on to marry three more times. As he wrote, traveled, and worked, Douglas paid little attention to the niceties of life among the brethren. Indeed, if the brethren can be thought of as nine brothers working under the same roof, William Douglas played the role of unruly son. He was rude to his clerks, he twitted Frankfurter’s pomposity with delight, and he would often leave for his summer vacation before the Court’s work was concluded, as he did with tragic consequences in the Rosenberg deliberations. Rarely did Douglas seem to care if he wrote for the majority or in dissent; his vision was so singular and his self-esteem so enormous that he preferred speaking his mind to negotiating the compromises sometimes needed in the Court.