Justice for All (55 page)

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.
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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.
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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.”
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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.
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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,”
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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:

 

Black's “study of historical events” was limited to the Congressional debate over the Fourteenth Amendment and did not address the 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?”
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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.

Douglas was a nationally renowned law professor and the flamboyant head of the Securities and Exchange Commission before turning forty, the age at which he joined the Court.
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When he arrived in April 1939, Douglas was more than ten years younger than his next oldest colleague. Many thought he would not stay long, that the Court was a way station on his route to the White House. He would end up serving longer than any justice in history. His restlessness was evident, however. Long after moving to the bench, Douglas continued to dabble in politics. He considered leaving the Court during the war when Roosevelt talked with him about taking over some defense operations. And in 1944, when Roosevelt was ailing and the vice presidency thus an important prize, Douglas came close to making the ticket, only to see the nomination go to Truman. Meanwhile, Douglas's scattershot intellect nurtured his love of travel and his fondness for writing. While his opinions were often brief to the point of brusqueness, Douglas was a talented and prolific writer who published more than thirty books, their royalties helping him to cover his mounting alimony obligations. His travel works are models of curiosity; his treatises are exhortations of individualism (titles like
Points of Rebellion
and
International Dissent
tell much of the story); his two-volume autobiography is both tantalizing and riddled with factual errors, typical of Douglas in both its pugnacity and its inattention to detail.

Douglas's closest friend among the brethren was Black. They wrote together often, feeling their way in the early years toward the libertarian liberalism that would become their hallmark. Off the bench, at least in the early years, they were friends and confidants. Douglas turned to his senior colleague for guidance during his periodic bouts of restlessness with judging. Doctrinally, they also were close, though they arrived at their philosophies differently. Where Black constructed a literalist reading of the Constitution and the Bill of Rights and melded it to his individualism, Douglas evolved into a more pure libertarian. He developed that orientation on the bench, characteristically, as an expression of defiance. The arrogation of power offended Douglas and drove him toward the defense of individual liberty. Particularly searing for Douglas was the Court's consideration of the Smith Act in 1951. Written by Representative Howard Smith of Virginia and formally if misleadingly titled the Alien Registration Act of 1940, the legislation made it illegal not just to attempt to overthrow the government but to advocate, abet, advise, or teach the “desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession.” The act thus punished not just those who actively sought to overthrow the government but also those who merely talked about it or believed it to be desirable even without doing anything to bring it about. Using that broad definition of subversion, the government charged eleven members of the American Communist Party in 1948, indicting Eugene Dennis and his codefendants for conspiracy as defined by the Smith Act. All eleven were convicted on October 14, 1949.
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The Vinson Court accepted the government's contention that the Communist Party leaders, through their words, were planning and encouraging the overthrow of the government and rejected the argument that the First Amendment allowed them to do so. “We reject,” the majority concluded, “any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy.”
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Instead, the Court adopted the approach of Judge Learned Hand: “In each case [courts] must ask whether the gravity of the ‘evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” That calculus was used to uphold the convictions of Dennis and the other Communists.