In a recent column, I offered a list of the greatest U.S. Supreme Court justices of all-time. Many people were puzzled by a single omission: Justice Hugo Black. But the omission was not inadvertent. In my view, Black, who served from 1937 to 1971, is the court’s most overrated justice.
Explaining that conclusion will help to identify major fault lines in contemporary constitutional thought -- and also to identify where both the left and the right tend to go wrong in constitutional debates.
Black has long been a hero to the left, because many of his votes were liberal. Once a member of the Ku Klux Klan, he became a great civil libertarian. He argued that the free speech principle is an absolute and that government can never engage in censorship, even if it appears to have good reasons.
Black believed in the strict separation of church and state. He argued that the Bill of Rights applies to the states, not only to the federal government. If you look at the great left-of-center decisions of the last 75 years, you can see Black’s influence on a large percentage of them.
Black is also widely admired on the right, because he was greatly concerned about constitutional text and history. In a sense, he can be seen as Justice Antonin Scalia’s forerunner, because he seemed to endorse “originalism”: the idea that the meaning of the Constitution is settled by the original understanding of those who ratified it. If you’re a fan of Scalia, and if you believe that the meaning of the Constitution does not change over time, you might think that Justice Black was someone you could do business with.
Black wrote with conviction and confidence. On both the left and the right, a lot of people admire Black for that reason alone.
Here’s the problem. Too much of the time, Black claimed that the text of the Constitution required a particular result, when it did nothing of the kind. He famously defended his free speech absolutism by noting that the First Amendment “provides, in simple words, that ‘Congress shall make no law ... abridging the freedom of speech, or of the press.’ I read ‘no law ... abridging’ to mean no law abridging.”
So does everyone else, but the words “abridging the freedom of speech” are not self-defining.
Suppose that Ohio bans child pornography, or that New York forbids bribery, or that Mississippi prohibits threats of homicide, or that the Federal Trade Commission forbids untruthful commercial advertising, or that Congress bans the publication of the names of intelligence agents. Or suppose that California allows people to recover damages if a newspaper intentionally circulates defamatory falsehoods about them.
In which of these cases does a law abridge the freedom of speech? You can stare at the words of the First Amendment all you like, and you will not have a clear answer. It is necessary to know, at a minimum, what counts as an abridgment, and what qualifies as “freedom of speech.” (It is revealing that in a public interview, Black defended absolute protection for pornography not by pointing to the words of the Constitution, but by making policy arguments of his own.)
If you believe that the Constitution means what it originally meant, you might be able to make more progress by consulting history. But if you are an originalist, it is not clear that you will endorse free speech absolutism. Some historians believe that the founding generation understood the First Amendment pretty narrowly. Moreover, many people reject originalism, and Black never made a sufficient argument on its behalf.
The First Amendment also says, “Congress shall make no law respecting an establishment of religion.” In much-quoted words, Black wrote, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” But the text of the Constitution does not speak of any such “wall.”
Some people think that if the Establishment Clause is understood literally, it merely bans the government from establishing an official church. Others believe that the government must avoid any kind of religious favoritism -- but that it need not respect any wall. It is not easy to avoid the conclusion that the idea of a “high and impregnable” wall came, at least in part, from Black’s own convictions.
We should now be able to see why Black is so widely admired. Many people care about judicial votes, not judicial reasoning. To those on the left, Black was frequently on the right side of history, and he counts as a hero for that reason.
On the right, many people are drawn to textualism and to reverence for the founding generation. But in hard cases, the text is often ambiguous. It’s a form of deception for judges to pretend otherwise, or contend that they are merely following it, when they are actually imposing political or moral judgments of their own.
Hugo Black had considerable influence, and he wrote with conviction, and he was indeed on the right side of history. But he’s greatly overrated.
To contact the writer of this article: Cass R. Sunstein at firstname.lastname@example.org.
To contact the editor responsible for this article: Timothy L. O'Brien at email@example.com.