How About Hugo Black?
I
WHAT sort of judge has Hugo Black turned out to be? When President Roosevelt unexpectedly appointed him to the Supreme Court there was a public uproar of doubt and objection, and in the legal profession something like consternation.
People said that if you could call the man a lawyer at all you must say he was a pretty small-time one, since all the law he had ever practised was for a couple of years in Birmingham. His only judicial experience had been as a police judge. He’d been prosecuting attorney in Jefferson County for two years. And aside from that, they said, he was just a New Deal politician, a poor white from the new manufacturing Deep South. An enterprising newspaper found out that he had been a Ku-Kluxer. Life published some pictures of him. I remember one of a small lean boy sitting on the porch of a crazy old schoolhouse, and another of a young man looking a bit cocky in a group graduating from the University of Alabama.
Hugo Black has now been almost two years on the bench. He has taken sides in more than two hundred decisions. He has written a good many opinions. Can we form from his opinions an idea of what sort of judge he is, or guess what sort of judge he is going to be? It strikes me that some conclusion can be reached even from such limited material.
There is no need of defending Black’s ability. There are not many judges who could write the succinct, lawyer-like, and pointed opinions he has written for the Court. There are fewer yet capable of the clarity, power, and perspicacity of his dissents. It is nonsense for anyone who has read them to speak otherwise. Whether you agree with his dissents is another matter. Sometimes I do; sometimes I do not. Very few lawyers will agree with all of them, a very great many with none of them. But that’s no denial of Black’s ability.
Black is independent. If we take the 216 decisions in which he took part in his first year and a half on the bench, from October 1937 through January 3, 1938, we find him dissenting 10 per cent of the time. That is, from the result of the decision. Many times he concurs only for his own reasons. If we add those occasions, he disagrees with a majority of his brethren, in reason or in result, 16 per cent of the time. He disagreed with McReynolds in one way or another 35 per cent of the time, and with Butler 27 per cent of the time. We might expect that, but it is somewhat of a surprise to find him striking off from Brandeis in 16 per cent of the cases, and just as often — but no more so, mark you — from Hughes. His lowest percentage of disagreement was with Cardozo, but even that was as much as 14 per cent.
Black’s independence does not really require statistical proof. Barring Butler and McReynolds recently, the Court has not seen so much dissenting since Mr. Justice Daniel of Virginia before the Civil War; not from Harlan, nor Holmes, nor Brandeis. But Black shows his independence in one way that is particularly significant. Once out of every eight times he agreed with none of his brethren. For lone dissents I think that is a record. Not that they will necessarily continue. He and Reed have been drawing more and more together in their dissents, just as Butler and McReynolds are together in an opposite corner. Frankfurter has taken Cardozo’s place — the seat of Holmes; and Douglas is succeeding Brandeis. They are better technical lawyers than Black. Possibly we have seen the last of Black against the field. However, in many of his lone dissents during this period, his first year and a half on the bench, he gave his reasons, and usually at some length. Here is where we can look to find the most of Black, and at the same time Black at his most vulnerable, when he could find no other justice to agree with him.
The dissent in the Florida Fruit Juice Case is a good one to begin with. It deals with the application of the Fourteenth Amendment to state legislation.
In the spring of 1937, the Florida Legislature acted on the fruit juice that was being brought into the State, where it was canned or packed and then labeled as Floridan, to be shipped north and sold as Floridan in competition with Florida’s own. A law was passed requiring the word ‘Florida’ to be ‘stamped into or embossed upon the tin, glass or other substance’ of the container of all Floridan fruit products, and of no others. The House was unanimous, 70 to 0. In the Senate there was one adverse vote, 24 to 1.
The Florida producers, however, were not unanimous. The Polk Company, for instance, had $33,000 worth of unembossed tin containers, and the Polk Company brought the suit to test the constitutionality of the new law. It called the law unfair, unjust to the producer, and asserted that embossing on tin plate breaks the plate and opens up the sheet steel of the can to the action of the acid in the fruit juice. The District Court read its petition, listened to some affidavits, and dismissed it. The Polk Company’s appeal to the Supreme Court was not heard until last autumn.
Then the Supreme Court, all but Black, refused to decide, saying they did not have enough facts. ‘The salutary principle that the essential facts should be determined before passing on grave constitutional questions is applicable.’
Of course the Court must have all the facts before they invalidate a statute, but this very necessity, Black would say, only shows what they are doing. When they invalidate a statute, they are really legislating, and Black does not like judicial legislation. The whole of Black’s dissent should be read. Here, however, is the gist of it; —
Even according to the presently prevailing interpretation of the Due Process Clause of the Fourteenth Amendment, I do not believe the averments of petitioners’ bill can sustain invalidation . . . [they] raise no more than questions of policy for legislative determination, which the Florida legislature has already considered and which can be presented to other legislatures in the future. . . . Under our constitutional plan of government, the exclusive power of determining the wisdom of this policy rested with the legislature of Florida subject to the veto power of Florida’s governor. . . . The legislative history of [this statute] indicates that it was given the careful and cautious consideration which regulation of one of the State’s major industries deserved. . . . This case offers an appropriate opportunity to return to the wholesome principle stated by this Court in 1888, ‘If all that can be said of this legislation is that it is unwise, or unnecessarily oppressive to those manufacturing or selling wholesome oleomargarine, as an article of food, their appeal must be to the legislature, or to the ballot box, not to the judiciary. The latter cannot interfere without usurping powers committed to another department of government.’ . . . May the Court, on evidence outside the bill, hold that the law violates due process because the court is convinced that the legislature might have chosen a wiser, less expensive and less burdensome regulation? If a court in this case and under this bill has this power, the final determination of the wisdom and choice of legislative policy has passed from legislatures — elected by and responsible to the people — to the courts.
Here, at once, you get what seems to me to be the clue to Black. When he picks up a statute, he reads it like the experienced legislator he is. Legislation has been his trade and his profession. On the other hand, his colleagues are lawyers first, and scarcely legislators at all. They too are familiar, of course, with statutes, as much so as he is, but they read them as judges. Black’s familiarity with them has come from making them.
Black feels the same way about administrative law. When the rates of the Indianapolis Water Company were reduced by the Public Service Commission in December 1932, the company appealed to the courts. Five years later the case reached the Supreme Court, in December 1937.
The District Court had valued the company’s property and approved the rates, but the Circuit Court of Appeals observed that the valuation on which the District Court had based its approval had been made two and a half years before — and what a two years that was! The general rise in prices between those dates could not be ignored. So there had to be a revaluation. The Supreme Court agreed, in a brief per curiam opinion, but not Black.
This case, said Black, will be coming back to us five years hence. It took five years to come up to us, and if we make the District Court start all over again the price level will fluctuate again, and perhaps prove the judge wrong again, and all’s to do over. Every fixing of a rate, and every passing on a rate, is at best a matter of prophecy, because the rates are fixed for the future. During the years it takes to appeal, the prophecy becomes experience; and price levels change in the meanwhile. This case, he said, is an illustration of the almost insuperable obstacles to rate regulation to-day. ‘I believe it forecasts a day when the present long delays in rate regulation will be endless.’
What’s wrong with these rates? he asked. Only that the court paid too much attention to the theory of reproduction cost, which of course a rising price level would increase.
Now if you say ‘reproduction cost’ to Black he will scowl. He scowled here.
The experience of the people of Indianapolis in their efforts to obtain fair and reasonable water rates from this company which has long had a monopoly in their community, discloses what appears to me to be the complete unreliability of the ‘reproduction cost’ theory. Wherever the question of utility valuation arises to-day, it is exceedingly difficult to discern the truth through the maze of formulas and the jungle of metaphysical concepts sometimes conceived, and often fostered, by the ingenuity of those who seek inflated valuations to support excessive rates. Even the testimony of engineers, with wide experience in developing this theory and expounding it to courts, is not in agreement as to the meaning of the vague and uncertain terms created to add invisible and intangible values to actual physical property. Completely lost in the confusion of language — too frequently invented for the purpose of confusing — commissions and courts passing upon rates for public utilities are driven to listen to conjectures, speculations, estimates and guesses, all under the name of ‘reproduction costs.’
Anyhow, said Black, all this interference by the federal courts with a State’s right to regulate rates is comparatively recent doctrine. Federal courts did not interfere with state legislation fixing maximum rates for public services until 1890. Then a divided Court finally repudiated its earlier constitutional interpretation and declared that due process of law requires judicial invalidation of legislative rates which the courts believe confiscatory.
II
Black is always pressing the point that what he wants is nothing novel and that all he wants is to go back to earlier and purer doctrine. It is ‘the wholesome principle stated by the Court in 1888’ or ‘It was not until 1890 . . .’ If he were an Englishman, he might be called Victorian.
In the Connecticut General Life Insurance Company Case, he startled the bar by wanting the Court to go back to a remark it dropped in an opinion in 1873, in spite of a subsequent line of decisions to the contrary.
‘I do not believe,’ said Black, ‘the word person in the Fourteenth Amendment includes corporations. . . . A constitutional interpretation that is wrong should not stand. I believe this Court should now overrule previous decisions which interpreted the Fourteenth Amendment to include corporations.’
The Fourteenth Amendment, he said, ‘followed the freedom of a race from slavery,’ and when it was submitted to the people they ‘were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments.’ In 1873, five years after its adoption, this Court itself said, ‘We doubt very much whether any action of a State not directed by way of discrimination against the Negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.’
Then someone, Black said, dug up the journal of the Joint Committee of Congress which drafted the amendment and found an indication that they intended to protect corporations as well as Negroes. But a secret purpose does not justify an interpretation. No word in all the amendment gives any such hint. Read it. ‘All persons,’ it begins, ‘born or naturalized . . .’ That’s not a corporation. Then what is protected? Life and liberty, as well as property. Corporations don’t have either life or liberty, as this Court has held. Go on to the next section. It apportions representatives among the States according to ‘the whole number of persons’ in each. That’s not corporations. And the third section. It says that no person who engaged in the insurrection shall be a Senator or Representative. Obviously, not a corporation. He concludes, ‘If the people of this Nation wish to deprive the States of their sovereign rights to determine what is a fair and just tax on corporations doing a purely local business within their own state boundaries, there is a way provided by the Constitution to accomplish this purpose. That way does not lie along the course of judicial amendment to that fundamental charter.’
I am left a little cold by these verbal inferences. They are logical. They are more relevant than the secret purpose of the Joint Committee. On the other hand, to my mind they do not outweigh the settled and accepted interpretation, over so many years, of an admitted ambiguity. But it is not revolutionary, as some of the bar regarded it, this wish to upset a fifty-year settled construction of the Constitution. Only the year before, as Black pointed out, the Court had expressly overruled its fifteen-year-old interpretation of the same Fourteenth Amendment on minimum-wage laws. Three months later, in the Tompkins Case, the Court was to overrule a hundred-year-old interpretation of an Act of Congress of 1789. Black is not subversive. He is simply disrespectful of recent precedents.
Black’s regard for legislation is something more than a prejudice against corporations, as this next dissent will show.
Dorothy Anderson was a teacher in a township school in Indiana, under an appointment which stated that ‘all of the provisions of the Teachers Tenure Law, approved March 8, 1927, shall be in full force and effect in this contract.’ That law said that after a teacher had six successive annual contracts she became a permanent teacher, and could be fired only for good and just cause, not for political or personal reasons. Dorothy Anderson had had her sixth appointment when the Indiana Legislature changed its mind about the advantages of permanent tenure in township schools and took them out of this law of 1927. Then she was dropped for what she said was no good cause. She brought suit. The Indiana courts ruled against her, and she appealed to the Supreme Court.
There was a contract, the Court said, between the State of Indiana and this schoolteacher. The Constitution forbids a State to impair its contracts. ‘We reverse the judgment and remand the cause for furt her proceedings not inconsistent with this judgment.’
Black alone dissented. ‘In my opinion,’ he said, ‘this reversal unconstitutionally limits the right of Indiana to control Indiana’s public school system.’ In 1927, Indiana had ‘a laudable desire’ and made ‘a commendable effort’ to give reasonable security of employment to its teachers, and when, in 1933, it decided to exclude township schools from the statute it had the right, as well as the duty, to do so. The Indiana Legislature, Black said, is bound by its constitutional duty to provide, by law, for common schools, which are ‘essential to the preservation of free government.’ It cannot make a contract in conflict with this sovereign power. ‘I believe the people of Indiana, if they prefer, have the right under the Federal Constitution to entrust this important public policy to their elective representatives rather than to the courts. Democracy permits the people to rule.’
That is what Black said. But the question is, Did Miss Anderson have a contract? The school board certainly tried their best to give her one. They signed a paper, which this law of 1927 III
said was to be a contract. If any schoolteacher ever had a contract of permanent employment with a State, I should say that she had one. And the Constitution certainly forbids the States to impair their contracts.
How does Black stand when it is an Act of Congress?
Long ago the Court laid down the doctrine that a State may not tax any federal instrumentality. This does not appear in the Constitution. It was Marshall’s and his Court’s build-up of the national government, to protect it from taxation by the States. So they ruled that Maryland could not constitutionally tax the banknotes of the Bank of the United States. In 1871 the Court made the rule mutual, in the case of Collector v. Day, holding the salary of a state probate judge exempt from the federal income tax. If each could tax the other, where would either stop?
The difficulty with the doctrine was that the Court had to decide in each particular case whether the person or thing taxed was ‘essentially governmental.’ Was it really a tax on the other government?
That was the question the Court had to answer in the case of Helvering v. Gerhardt. The construction engineer and two assistant managers of the Port of New York Authority refused to pay the federal income tax on their salaries. They were New York officials and employees. That was clear. But was their work an essential governmental function? A majority of the justices thought on the whole that it was not, and upheld the tax. Black agreed, but he had his own reasons.
He said the question whether their jobs were essentially governmental was beside the point. For the payment of an income tax that falls on all citizens alike cannot impair the governmental operations of the State of New York. This without more, Black thought, was reason enough to support the tax, but he found it difficult to reconcile this result with the principle announced in Collector v. Day. That led him to the conclusion that ‘the entire subject of intergovernmental tax immunity’ should be reëxamined, particularly in view of the Sixteenth Amendment, which authorizes Congress to tax incomes ‘from whatever source derived.’ The present case, he said, afforded occasion for appropriate and necessary abandonment of the test of essential versus nonessential function. And he proceeded to eliminate the doctrine. It is a good example of Black’s root-and-branch perspicacity.
It was, he went on, a confusing test anyhow. ‘Conceptions of essential governmental functions vary with individual philosophies.’ Some believe that the ownership of water, power, and transportation systems is essential. Some do not. ‘The genius of our government provides that within the sphere of constitutional action the people — acting not through the courts but through their elected legislative representatives — have the power to determine as conditions demand what services and functions the public welfare requires.’
However, Black proceeded to point out that the Constitution does not require us to divide public employees into taxpaying and non-taxpaying groups, depending on their functions. On the contrary, the Sixteenth Amendment empowers Congress to collect taxes on income ‘from whatever source derived,’ and this — given its most obvious meaning — is broad enough to allow Congress to tax all public employees uniformly. That was Holmes’s view, and is the view of the President, who said in his recent message to Congress, ‘It is difficult for almost all citizens to understand why a constitutional provision permitting taxes on “income from whatever source derived” does not mean “from whatever source derived.”’
Here Black is insisting on the Sixteenth Amendment for the benefit of Congress. In Miss Anderson’s case he was disregarding — as it seems to me — the provision in Article I against impairing contracts for the benefit of a State. In both cases it is the legislator speaking, there for the state legislature, here for Congress, against interference from the Court.
Black’s attitude is the same whenever the Court reads into the Constitution what he does not find there. What is the standing of a state tax on receipts from sales made in interstate commerce? Black has dissented twice on the subject, both times alone.
One case concerned an Indiana corporation which was making road machinery in Indiana, 80 per cent of whose sales were in other States, the other a Washington company which sold apples and pears all over the country. Both States had laid gross-receipts taxes on those interstate sales. Was that constitutional?
The Court had a dozen cases to cite holding that such a tax was prohibited by the Commerce Clause in the Constitution. Following these precedents, the Court held the tax void, reasoning thus: The tax on these receipts from interstate commerce is in effect a regulation of interstate commerce; the Constitution says, ‘The Congress shall have power to regulate commerce among the several States’; that means that the States cannot regulate it. Otherwise, commerce among the States could be taxed twice, for the sales might also be taxed by the States where they were made.
Yes, you and I might say, but the existence of the power to regulate commerce is not its exercise. The failure of Congress to act is not tantamount to an Act of Congress, and for the Court to regard it as such is simply legislation by the Court, judicial legislation acquiesced in by Congress. When the Court decided to reject state laws which interfered with interstate commerce, on the ground that Congress could have —• would have, if Congress had thought of it — exercised its great power, then the Court was substituting for Congress and legislating. True, that was over a hundred years ago, under Marshall. Yet that is not the way our laws are supposed to be made.
I confess, my heart fails my head. Anyone who read Raymond Buell’s article in Fortune for August 1938, however stout his stand against judicial legislation and the encroachment of the Court on Congress, must find his heart fail too. Our commerce and our industries command the largest single market in history, a market that extends from coast to coast, so big even that some economists say it ought to be big enough. States’ rights and state greed might have chiseled that market down — and may yet do so.
Black recognizes this, but he is undeterred. I give the conclusion of his dissent in the second case, a good halfdozen pages of Black at his best: ‘It is as essential to-day, as at the time of the adoption of the Constitution, that commerce among the States and with foreign nations be left free from discriminatory and retaliatory burdens imposed by the States. It is of equal importance, however, that the judicial department of our government scrupulously observe its constitutional limitations and that Congress alone should adopt a broad national policy of regulation — if otherwise valid state laws combine to hamper the free flow of commerce. . . . Since the Constitution grants sole and exclusive power to Congress to regulate commerce among the States, repeated assumption of this power by the courts — even over a long period of years — could not make this assumption of power constitutional.’ And he goes into the Tompkins Case, where on ‘April 25, 1938, this Court overruled and renounced an unconstitutional assumption of power by the federal courts based on a doctrine extending back through an unbroken line of authority to 1842.’
IV
I have covered all of Black’s more important lone dissents to the time I write, which is March 1939. Any Monday — for that is the day when decisions are announced and opinions read — there may be more. Necessarily our conclusions must be hit on the wing. Only the historians get sitters.
A couple of generations ago — shortly after the Civil War, let us say — the judges began to think they could make better constitutional law as they interpreted the Constitution in their decisions than the legislators who were implementing it with their statutes. You will recall that Black keeps harking back to decisions just before this. Often the judges were justified. They had a better technique and they were wise men. However, the more certain they became that their constitutional doctrine was better than the legislators’, the more of it they were tempted to make.
Only a few of them were aware that the legislators were becoming more skillful, taking their work more in earnest, getting more trained advice, showing more sophistication and consequently — this is my point — more professional pride. The result should have been simply a readjustment of prides, the older giving proper place bit by bit to the new. So it would have been, if a majority of the judges had not come to fancy themselves as statesmen. The difficulty about this was that they were not responsible. The Constitution had gone to some pains to make them quite the contrary, irremovable except by impeachment. That is where the legislators had them: they were responsible. Black came to the Senate while this majority in the Court was invalidating the AAA, denying that railroad pensions were a regulation of interstate commerce, and making its last veto of minimum wages. He was appointed from that Senate.
But Black’s disrespect and distaste for judicial statesmanship have a deeper foundation than that. They spring from the expert’s respect for his own art. For Black is an expert in legislation, ten years in the Senate. He thinks a judge should stick to his judging and take his law as it is given to him by those whose job it is to make it. And Black feels this strongly because he himself used to make it. It is the attitude of the artist toward the critic, of the man who is responsible for his work toward the man who concerns himself with the work of others. Black has carried the legislator’s new pride of craftsmanship on to the bench. That is why so many regard him as a stranger in the clubroom. He is a legislator among judges.
There is no nice solution to the conflict. The judges can’t help interpreting the Constitution. They have to be statesmen. To set a limit to the exercise of your own statesmanship is a problem that does not call for a judicial solution. It is a matter of attitude. Here, for the Court, the proper attitude is one of self-restraint. Stone has said, ‘The only check on our exercise of power is our sense of self-restraint.’ Some, like Holmes, have had the humility of great wisdom. Those who have had less wisdom have shown much less humility. The humility that comes of wisdom calls for a great deal of wisdom.
Black contributes, I think, a new attitude — that even a discerning self-restraint or even a wise humility may perhaps not be enough; that what is necessary is an understanding and an appreciation of the legislator’s pride, of craft.
Instead of a Socratean knowledge of his own ignorance, Black’s strength is a proper esteem for a sister craft, one that was his own. It is his pride. It is also the other half of what should become a mutual respect.