Hugo L. Black (1886–1971)


Hugo Lafayette Black served as an associate justice of the Supreme Court of the United States from August 17, 1937, to September 17, 1971. His 34 years on the high Court make him one of the longest-serving justices of all time. This entry reviews his life and his contributions to the Court.

Early Years


Justice Black was born on February 27, 1886, in rural Clay County, Alabama. He entered Birmingham Medical College in 1903 but transferred to the University of Alabama law school a year later. Following graduation from law school in 1906, Black practiced law in Ashland, Alabama, for one year, before moving to Birmingham. He served as a judge on the Birmingham Police Court from 1910 to 1911 and as the prosecuting attorney for Jefferson County, Alabama (metropolitan Birmingham), from 1914 to 1917. Black also served as a captain in the U.S. Army during World War I and was discharged in 1919. On returning to civilian life, Black resumed private practice in Birmingham.
In 1926, Black was elected to the U.S. Senate from Alabama, and he was reelected in 1932. On August 12, 1937, President Franklin D. Roosevelt nominated him to the Supreme Court as the replacement for Associate Justice Willis Van Devanter. Black was confirmed by the Senate five days later on August 17, 1937.

Supreme Court Record


As a Supreme Court justice, Black followed a “textualist” or “strict constructionist” approach to constitutional and statutory interpretation. He emphatically rejected the concept of “substantive due process,” which the Supreme Court had used to invalidate much of Roosevelt’s New Deal. Black believed that government could do anything it wished as long it did not violate an explicit textual provision of the Constitution. He believed that if judges invalidated statutes on “natural law” grounds, then they were engaging in judicial activism. Thus, he dissented in Griswold v. Connecticut (1965) when the Court struck down a state law banning contraceptives. In his view, nothing in the Constitution prohibited the law, even though the law was, in his judgment, unwise.
At the same time, Justice Black took a broad view of the restrictions that were contained in the text. In Gideon v. Wainwright (1963), he found that the Sixth Amendment required the appointment of legal counsel for the poor. Similarly, in his dissent in Adamson v. California (1947), he took the position that the Fourteenth Amendment made all provisions of the Bill of Rights applicable to the states. His theory of “total incorporation” stood in stark contrast to his colleagues’ theories, notably that of Justice Felix Frankfurter, who believed in “selective incorporation.” In Black’s view, selective incorporation turned on a vague and amorphous standard.
Consistent with his theory of total incorporation, Black authored Everson v. Board of Education of Ewing Township (1947), which held that the Establishment Clause applied to the states. He later wrote opinions striking down religious instruction in public schools (McCollum v. Board of Education, 1948) and recitation of government-authored prayers (Engel v. Vitale, 1962).
Perhaps most famously, Black took an absolutist view of the First Amendment and insisted, “No law means no law.” Consequently, in New York Times Co. v. United States (1971), he rejected the federal government’s national security concerns and allowed the publication of the Pentagon Papers. However, Black drew a sharp distinction between speech, which he viewed as being absolutely protected, and expressive conduct, which he thought had no protection. Thus, he dissented in Tinker v. Des Moines Independent Community School District (1969) when the Court held that students had a right to wear armbands to protest the Vietnam War.
A stroke forced Black to retire from the Court on September 17, 1971. He passed away eight days later on September 25, 1971. He is buried in Arlington National Cemetery.
William E. Thro

See also Engel v. Vitale; Everson v. Board of Education of Ewing Township; Illinois ex rel. McCollum v. Board of Education; Tinker v. Des Moines Independent Community School District
Further Readings
  • Ball, H., & Black, H. L. (1966). Cold steel warrior. New York: Oxford University Press.
  • Newman, R. K. (1994). Hugo Black: A biography. New York: Pantheon.
  • Simon, J. F. (1989). The antagonists: Hugo Black, Felix Frankfurter, and civil liberties in America. New York: Simon & Schuster.
  • Stephenson, G. T. (1977). Hugo Black and the judicial revolution, by Gerald T. Dunne [Book review]. Virginia Law Review, 63(6), 1087–1097.
  • Suitts, S. (2005). Hugo Black of Alabama: How his roots and early career shaped the great champion of the Constitution. Winston-Salem, NC: Blair.
Legal Citations