Hugo Black

Black was involved in a bitter controversy with Justice Robert H. Jackson (shown above).

In the mid-1940s, Justice Black became involved in a bitter dispute with Justice Robert H. Jackson as a result of Jewell Ridge Coal Corp. v. Local 6167, United Mine Workers (1945). In this case the Court ruled 5–4 in favor of the UMW; Black voted with the majority, while Jackson dissented. However, the coal company requested the Court rehear the case on the grounds that Justice Black should have recused himself, as the mine workers were represented by Black's law partner of 20 years earlier. Under the Supreme Court's rules, each Justice was entitled to determine the propriety of disqualifying himself. Jackson agreed that the petition for rehearing should be denied, but refused to give approval to Black's participation in the case. Ultimately, when the Court unanimously denied the petition for rehearing, Justice Jackson released a short statement, in which Justice Frankfurter joined. The concurrence indicated that Jackson voted to deny the petition not because he approved of Black's participation in the case, but on the "limited grounds" that each Justice was entitled to determine for himself the propriety of recusal.[27][28] At first the case attracted little public comment. However, after Chief Justice Harlan Stone died in 1946, rumors that President Harry S. Truman would appoint Jackson as Stone's successor led several newspapers to investigate and report the Jewell Ridge controversy.[29] Black and Douglas allegedly leaked to newspapers that they would resign if Jackson were appointed Chief.[29] Truman ultimately chose Fred M. Vinson for the position.

In 1948, Justice Black approved an order solicited by Abe Fortas that barred a federal district court in Texas from further investigation of significant voter fraud and irregularities in the 1948 Democratic primary election runoff for United States Senator from Texas. The order effectively confirmed future President Lyndon Johnson's apparent victory over former Texas Governor Coke Stevenson.[30][31]

In the 1960s, Black clashed with Fortas, who by that time had been appointed as an Associate Justice. In 1968, a Warren clerk called their feud "one of the most basic animosities of the Court."[32]

Vinson's tenure as Chief Justice coincided with the Second Red Scare, a period of intense anti-communism in the United States. In several cases the Supreme Court considered, and upheld, the validity of anticommunist laws passed during this era. For example, in American Communications Association v. Douds (1950), the Court upheld a law that required labor union officials to forswear membership in the Communist Party. Black dissented, claiming that the law violated the First Amendment's free speech clause. Similarly, in Dennis v. United States, 341 U.S. 494 (1951), the Court upheld the Smith Act, which made it a crime to "advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States." The law was often used to prosecute individuals for joining the Communist Party. Black again dissented, writing:

Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that, in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.[33]

Beginning in the late 1940s, Black wrote decisions relating to the establishment clause, where he insisted on the strict separation of church and state. The most notable of these was Engel v. Vitale (1962), which declared state-sanctioned prayer in public schools unconstitutional. This provoked considerable opposition, especially in conservative circles.[34] Efforts to restore school prayer by constitutional amendment failed.

In 1953 Vinson died and was replaced by Earl Warren. While all members of the Court were New Deal liberals, Black was part of the most liberal wing of the Court, together with Warren, Douglas, William Brennan, and Arthur Goldberg. They said the Court had a role beyond that of Congress.[35] Yet while he often voted with them on the Warren Court, he occasionally took his own line on some key cases, most notably Griswold v. Connecticut (1965), which established that the Constitution protected a right to privacy. In not finding such a right implicit in the Constitution, Black wrote in his dissent that "Many good and able men have eloquently spoken and written ... about the duty of this Court to keep the Constitution in tune with the times. ... For myself, I must with all deference reject that philosophy."[4]^:120

Black's most prominent ideological opponent on the Warren Court was John Marshall Harlan II, who replaced Justice Jackson in 1955. They disagreed on several issues, including the applicability of the Bill of Rights to the states, the scope of the due process clause, and the one man, one vote principle.

Black had a number of law clerks who became notable in their own right, including Judges Louis F. Oberdorfer, Truman McGill Hobbs, Guido Calabresi, and Drayton Nabers Jr., Professors John K. McNulty, Stephen Schulhofer, and Walter E. Dellinger III, Mayor David Vann, FCC Commissioner Nicholas Johnson, US Solicitor General Lawrence G. Wallace, and trial lawyer Stephen Susman.[36][37]

Black intensely believed in judicial restraint and reserved the power of making laws to the legislatures, often scolding his more liberal colleagues for what he saw as judicially created legislation. Conservative justice John M. Harlan II would say of Black: "No Justice has worn his judicial robes with a keener sense of the limitations that go with them."[4]^:119 Conservative Judge Robert Bork wrote, "Justice Black came to have significantly more respect for the limits of the Constitution than Justice Douglas and the other leading members of the Warren majorities ever showed."[44] One scholar wrote, "No Justice of the Court conscientiously and persistently endeavored, as much as Justice Black did, to establish consistent standards of objectivity for adjudicating constitutional questions."[45] Black advocated a narrow role of interpretation for justices, opposing a view of justices as social engineers or rewriters of the Constitution. Black opposed enlarging constitutional liberties beyond their literal or historic "plain" meaning, as he saw his more liberal colleagues do.[4]^:119–120 However, he also condemned the actions of those to his right, such as the conservative Four Horsemen of the 1920s and 1930s, who struck down much of the New Deal's legislation.

Black forged the 5–4 majority in the 1967 decision Fortson v. Morris, which cleared the path for the Georgia State Legislature to choose the governor in the deadlocked 1966 race between Democrat Lester Maddox and Republican Howard Callaway. Whereas Black voted with the majority under strict construction to uphold the state constitutional provision, his colleagues Douglas (joined by Warren, Brennan, and Fortas) and Fortas (joined by Warren and Douglas) dissented. According to Douglas, Georgia tradition would guarantee a Maddox victory though he had trailed Callaway by some three thousand votes in the general election returns. Douglas also saw the issue as a continuation of the earlier decision Gray v. Sanders, which had struck down Georgia's County Unit System, a kind of electoral college formerly used to choose the governor. Black argued that the U.S. Constitution does not dictate how a state must choose its governor. "Our business is not to write laws to fit the day. Our task is to interpret the Constitution," Black explained.[46]

Black was noted for his advocacy of a textualist approach to constitutional interpretation. He took a "literal" or absolutist reading of the provisions of the Bill of Rights[4]^:115–118 and believed that the text of the Constitution is absolutely determinative on any question calling for judicial interpretation, leading to his reputation as a "textualist" and as a "strict constructionist". While the text of the constitution was an absolute limitation on the authority of judges in constitutional matters, within the confines of the text judges had a broad and unqualified mandate to enforce constitutional provisions, regardless of current public sentiment, or the feelings of the justices themselves.[4] Thus, Black refused to join in the efforts of the justices on the Court who sought to abolish capital punishment in the United States, whose efforts succeeded (temporarily) in the term immediately following Black's death. He claimed that the Fifth and Fourteenth Amendment's reference to takings of "life", and to "capital" crimes, meant approval of the death penalty was implicit in the Bill of Rights. He also was not persuaded that a right of privacy was implicit in the Ninth or Fourteenth amendments, and dissented from the Court's 1965 Griswold decision which invalidated a conviction for the use of contraceptives. Black said "It belittles that [Fourth] Amendment to talk about it as though it protects nothing but 'privacy' ... 'privacy' is a broad, abstract, and ambiguous concept ... The constitutional right of privacy is not found in the Constitution."[4]^:241

Justice Black rejected reliance on what he called the "mysterious and uncertain" concept of natural law. According to Black that theory was vague and arbitrary, and merely allowed judges to impose their personal views on the nation. Instead, he argued that courts should limit themselves to a strict analysis of the actual text of the Constitution. Black was, in addition, an opponent of the "living constitution" theory. In his dissent to Griswold (1965), he wrote:

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time, and that this Court is charged with a duty to make those changes. For myself, I must, with all deference, reject that philosophy. The Constitution makers knew the need for change, and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and, being somewhat old-fashioned, I must add it is good enough for me.[47]

Thus, some have seen Black as an originalist. David Strauss, for example, hails him as "[t]he most influential originalist judge of the last hundred years."[48] Black insisted that judges rely on the intent of the Framers as well as the "plain meaning" of the Constitution's words and phrases (drawing on the history of the period) when deciding a case.

Black additionally called for judicial restraint not usually seen in Court decision-making. The justices of the Court would validate the supremacy of the legislature in public policy-making, unless the legislature was denying people constitutional freedoms. Black stated that the legislature "was fully clothed with the power to govern and to maintain order."[4]^:112

Black held an expansive view of legislative power, whether that be state or federal, and would often vote against judicial review of state laws that could be struck down under the Commerce Clause.[49] Previously, during the 1920s and 1930s, the Court had interpreted the commerce clause narrowly, often striking down laws on the grounds that Congress had overstepped its authority.[4]^:88–90 After 1937, however, the Supreme Court overturned several precedents and affirmed a broader interpretation of the commerce clause. Black consistently voted with the majority in these decisions; for example, he joined Mulford v. Smith, 307 U.S. 38 (1939), United States v. Darby Lumber Co., 312 U.S. 100 (1941), Wickard v. Filburn, 317 U.S. 111 (1942), Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294 (1964).

In several other federalism cases, however, Black ruled against the federal government. For instance, he partially dissented from South Carolina v. Katzenbach, 383 U.S. 301 (1966), in which the Court upheld the validity of the Voting Rights Act of 1965. In an attempt to protect the voting rights of African Americans, the act required any state whose population was at least 5% African American to obtain federal approval before changing its voting laws. Black wrote that the law,

... by providing that some of the States cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities to approve their policies, so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless.[50]

Similarly, in Oregon v. Mitchell (1970), he delivered the opinion of the court holding that the federal government was not entitled to set the voting age for state elections.

In the law of federal jurisdiction, Black made a large contribution by authoring the majority opinion in Younger v. Harris. This case, decided during Black's last year on the Court, has given rise to what is now known as Younger abstention. According to this doctrine, an important principle of federalism called "comity"—that is, respect by federal courts for state courts—dictates that federal courts abstain from intervening in ongoing state proceedings, absent the most compelling circumstances. The case is also famous for its discussion of what Black calls "Our Federalism," a discussion in which Black expatiates on

proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.[51]

Black was an early supporter of the "one man, one vote" standard for apportionment set by Baker v. Carr. He had previously dissented in support of this view in Baker's predecessor case, Colegrove v. Green.

As a senator, Black filibustered an anti-lynching bill.[52] However, during his tenure on the bench, Black established a record more sympathetic to the civil rights movement. He joined the majority in Shelley v. Kraemer (1948), which invalidated the judicial enforcement of racially restrictive covenants. Similarly, he was part of the unanimous Brown v. Board of Education (1954) Court that struck down racial segregation in public schools. Black remained determined to desegregate the South and would call for the Supreme Court to adopt a position of "immediate desegregation" in 1969's Alexander v. Holmes County Board of Education.

Black wrote the court's majority opinion in Korematsu v. United States, which validated Roosevelt's decision to intern Japanese Americans on the West Coast during World War II. The decision is an example of Black's belief in the limited role of the judiciary; he validated the legislative and executive actions that led to internment, saying "it is unnecessary for us to appraise the possible reasons which might have prompted the order to be used in the form it was."[4]^:113

Black also tended to favor law and order over civil rights activism.[53][4]^:115 This led him to read the Civil Rights Act narrowly. For example, he dissented in multiple cases reversing convictions of sit-in protesters, arguing to limit the scope of the Civil Rights Act.[54] In 1968 he said, "Unfortunately there are some who think that Negroes should have special privileges under the law."[55] Black felt that actions like protesting, singing, or marching for "good causes" one day could lead to supporting evil causes later on; his sister-in-law explained that Black was "mortally afraid" of protesters. Black opposed the actions of some civil rights and Vietnam War protesters and believed that legislatures first, and courts second, should be responsible for alleviating social wrongs. Black once said he was "vigorously opposed to efforts to extend the First Amendment's freedom of speech beyond speech," to conduct.[4]

Black took an absolutist approach to First Amendment jurisprudence, believing the first words of the Amendment that said "Congress shall make no law ..." Black rejected the creation of judicial tests for free speech standards, such as the tests for "clear and present danger", "bad tendency", "gravity of the evil," "reasonableness," or "balancing." Black would write that the First Amendment is "wholly 'beyond the reach' of federal power to abridge ... I do not believe that any federal agencies, including Congress and the Court, have power or authority to subordinate speech and press to what they think are 'more important interests.'"[4]

He believed that the First Amendment erected a metaphorical wall of separation between church and state. During his career Black wrote several important opinions relating to church-state separation. He delivered the opinion of the court in Everson v. Board of Education (1947), which held that the establishment clause was applicable not only to the federal government, but also to the states.

In four bar applicant appeals to the Supreme Court, Black advanced the argument that a person's political affiliation or beliefs, without action, was not enough to establish evidence of bad moral character. Black argued in 1957, in Schware v. Board of Bar Examiners (1957), that New Mexico could not exclude a law graduate from becoming a lawyer because Schware might have, at one time, consorted with communist causes. Schware was, in fact, a decorated veteran who fought in World War II. Black reaffirmed this position in Konigsberg v. State Bar of California (1957) decided in the same year. A majority of the Court sided with Black. However, in 1961, in both Konigsberg v. State Bar of California II (1961), and In re Anastaplo (1961), the majority of justices, over Black's vigorous dissent, determined that a person who refused to answer whether they had been a member of an organization on the Attorney General's Subversive Organizations List, could be excluded on the basis of bad character.[56]

Black's majority opinion in McCollum v. Board of Education (1948) held that the government could not provide religious instruction in public schools. In Torcaso v. Watkins (1961), he delivered an opinion which affirmed that the states could not use religious tests as qualifications for public office. Similarly, he authored the majority opinion in Engel v. Vitale (1962), which declared it unconstitutional for states to require the recitation of official prayers in public schools.

Justice Black is often regarded as a leading defender of First Amendment rights such as the freedom of speech and of the press.[57] He refused to accept the doctrine that the freedom of speech could be curtailed on national security grounds. Thus, in New York Times Co. v. United States (1971), he voted to allow newspapers to publish the Pentagon Papers despite the Nixon Administration's contention that publication would have security implications. In his concurring opinion, Black stated,

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. ... The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.

— New York Times Co. v. United States, 403 U.S. 713, 717 (1971).[58]

He rejected the idea that the government was entitled to punish "obscene" speech. Likewise, he argued that defamation laws abridged the freedom of speech and were therefore unconstitutional. Most members of the Supreme Court rejected both of these views; Black's interpretation did attract the support of Justice Douglas.[4]

However, he did not believe that individuals had the right to speak wherever they pleased. He delivered the majority opinion in Adderley v. Florida (1966), controversially upholding a trespassing conviction for protesters who demonstrated on government property. He also dissented from Tinker v. Des Moines (1969), in which the Supreme Court ruled that students had the right to wear armbands (as a form of protest) in schools, writing,

While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases.[59]

Moreover, Black took a narrow view of what constituted "speech" under the First Amendment; for him, "conduct" did not deserve the same protections that "speech" did.[4]^:114–115 For example, he did not believe that flag burning was speech; in Street v. New York (1969), he wrote: "It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense."[60] Similarly, he dissented from Cohen v. California (1971), in which the Court held that wearing a jacket emblazoned with the words "Fuck the Draft" was speech protected by the First Amendment. He asserted that this activity "was mainly conduct, and little speech."

As a Justice, Black held the view that the Court should literally enforce constitutional guarantees, especially the First Amendment free speech clause. He was often labeled an 'activist' because of his willingness to review legislation that arguably violated constitutional provisions. Black maintained that literalism was necessary to cabin judicial power.[61]

For these reasons, he was one of the dissenting votes in the case of George Anastaplo who was prohibited from the Illinois Bar because he refused to denounce communists and refused to give a testimony of his political ideology. Black is quoted as stating:

Anastaplo has not indicated, even remotely, a belief that this country is an oppressive one in which the 'right of revolution' should be exercised. Quite the contrary, the entire course of his life, as disclosed by the record, has been one of devotion and service to his country—first, in his willingness to defend its security at the risk of his own life in time of war and, later, in his willingness to defend its freedoms at the risk of his professional career in time of peace.[62]

In a 1968 public interview, reflecting on his most important contributions, Black put his dissent from Adamson v. California "at the top of the list, but then spoke with great eloquence from one of his earliest opinions in Chambers v. Florida (1940)."[61]

Black adopted a narrower interpretation of the Fourth Amendment than many of his colleagues on the Warren Court. He dissented from Katz v. United States (1967), in which the Court held that warrantless wiretapping violated the Fourth Amendment's guarantee against unreasonable search and seizure. He argued that the Fourth Amendment only protected tangible items from physical searches or seizures. Thus, he concluded that telephone conversations were not within the scope of the amendment, and that warrantless wiretapping was consequently permissible.

Justice Black originally believed that the Constitution did not require the exclusion of illegally seized evidence at trials. In his concurrence to Wolf v. Colorado (1949), he claimed that the exclusionary rule was "not a command of the Fourth Amendment but ... a judicially created rule of evidence."[63] But he later changed his mind and joined the majority in Mapp v. Ohio (1961), which applied it to state as well as federal criminal investigations. In his concurrence, he indicated that his support was based on the Fifth Amendment's guarantee of the right against self-incrimination, not on the Fourth Amendment's guarantee against unreasonable searches and seizures. He wrote, "I am still not persuaded that the Fourth Amendment, standing alone, would be enough to bar the introduction into evidence ... seized ... in violation of its commands."[64]

In other instances Black took a fairly broad view of the rights of criminal defendants. He joined the Supreme Court's landmark decision in Miranda v. Arizona (1966), which required law enforcement officers to warn suspects of their rights prior to interrogations, and consistently voted to apply the guarantees of the Fourth, Fifth, Sixth, and Eighth Amendments at the state level.

Black was the author of the landmark decision in Gideon v. Wainwright (1963), which ruled that the states must provide an attorney to an indigent criminal defendant who cannot afford one. Before Gideon, the Court had held that such a requirement applied only to the federal government.

One of the most notable aspects of Justice Black's jurisprudence was the view that the entirety of the federal Bill of Rights was applicable to the states. Originally, the Bill of Rights was binding only upon the federal government, as the Supreme Court ruled in Barron v. Baltimore (1833). According to Black, the Fourteenth Amendment, ratified in 1868, "incorporated" the Bill of Rights, or made it binding upon the states as well. In particular, he pointed to the Privileges or Immunities Clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." He proposed that the term "privileges or immunities" encompassed the rights mentioned in the first eight amendments to the Constitution.[4]^:212–213

Black first expounded this theory of incorporation when the Supreme Court ruled in Adamson v. California (1947) that the Fifth Amendment's guarantee against self-incrimination did not apply to the states. It was during this period of time that Hugo Black became a disciple of John Lilburne and his claim of 'freeborn rights'.[65] In an appendix to his dissenting opinion, Justice Black analyzed statements made by those who framed the Fourteenth Amendment, reaching the conclusion that "the Fourteenth Amendment, and particularly its privileges and immunities clause, was a plain application of the Bill of Rights to the states."[66]

Black's theory attracted the support of Justices such as Frank Murphy and William O. Douglas. However, it never achieved the support of a majority of the Court.[4] The most prominent opponents of Black's theory were Justices Felix Frankfurter and John Marshall Harlan II.[4] Frankfurter and Harlan argued that the Fourteenth Amendment did not incorporate the Bill of Rights per se, but merely protected rights that are "implicit in the concept of ordered liberty," which was the standard Justice Cardozo had established earlier in Palko v. Connecticut.

The Supreme Court never accepted the argument that the Fourteenth Amendment incorporated the entirety of the Bill of Rights.[67] However, it did agree that some "fundamental" guarantees were made applicable to the states. For the most part, during the 1930s, 1940s, and 1950s, only First Amendment rights (such as free exercise of religion and freedom of speech) were deemed sufficiently fundamental by the Supreme Court to be incorporated.

However, during the 1960s, the Court under Chief Justice Warren took the process much further, making almost all guarantees of the Bill of Rights binding upon the states.[68] Thus, although the Court failed to accept Black's theory of total incorporation, the end result of its jurisprudence is very close to what Black advocated. Today, the only parts of the first eight amendments that have not been extended to the states are the Third and Seventh Amendments, the grand jury clause of the Fifth Amendment, the Eighth Amendment's protection against excessive bail, and the guarantee of the Sixth Amendment, as interpreted, that criminal juries be composed of 12 members.[69]

Justice Black was well known for his rejection of the doctrine of substantive due process. Most Supreme Court Justices accepted the view that the due process clause encompassed not only procedural guarantees, but also "fundamental fairness" and fundamental rights. Thus, it was argued that due process included a "substantive" component in addition to its "procedural" component.[70]

Black, however, believed that this interpretation of the due process clause was unjustifiably broad. In his dissent to Griswold, he charged that the doctrine of substantive due process "takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom, and transfers that power to this Court for ultimate determination."[47] Instead, Black advocated a much narrower interpretation of the clause. In his dissent to In re Winship, he analyzed the history of the term "due process of law", and concluded: "For me, the only correct meaning of that phrase is that our Government must proceed according to the 'law of the land'—that is, according to written constitutional and statutory provisions as interpreted by court decisions."[71]

Black's view on due process drew from his reading of British history; to him, due process meant all persons were to be tried in accordance with the Bill of Rights' procedural guarantees and in accordance with constitutionally pursuant laws. Black advocated equal treatment by the government for all persons, regardless of wealth, age, or race. Black's view of due process was restrictive in the sense that it was premised on equal procedures; it did not extend to substantive due process. This was in accordance with Black's literalist views.[4]^:116–117 Black did not tie procedural due process exclusively to the Bill of Rights, but he did tie it exclusively to the Bill of Rights combined with other explicit provisions of the Constitution.[72]

None of Black's colleagues shared his interpretation of the due process clause. His chief rival on the issue (and on many other issues) was Felix Frankfurter, who advocated a substantive view of due process based on "natural law"—if a challenged action did not "shock the conscience" of the jurist, or violate British concepts of fairness, Frankfurter would find no violation of due process of law. John M. Harlan II largely agreed with Frankfurter, and was highly critical of Black's view, indicating his "continued bafflement at ... Black's insistence that due process ... does not embody a concept of fundamental fairness" in his Winship concurrence.[71]

Black was one of the Supreme Court's foremost defenders of the "one man, one vote" principle.[74] He delivered the opinion of the court in Wesberry v. Sanders (1964), holding that the Constitution required congressional districts in any state to be approximately equal in population. He concluded that the Constitution's command "that Representatives be chosen 'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's."[75] Likewise, he voted in favor of Reynolds v. Sims (1964), which extended the same requirement to state legislative districts on the basis of the equal protection clause.

At the same time, Black did not believe that the equal protection clause made poll taxes unconstitutional. During his first term on the Court, he participated in a unanimous decision to uphold Georgia's poll tax in the case of Breedlove v. Suttles.[76] Then, twenty-nine years later, he dissented from the Court's ruling in Harper v. Virginia Board of Elections (1966), invalidating the use of the poll tax as a qualification to vote, in which Breedlove was overturned. He criticized the Court for exceeding its "limited power to interpret the original meaning of the Equal Protection Clause" and for "giving that clause a new meaning which it believes represents a better governmental policy."[77] He also dissented from Kramer v. Union Free School District No. 15 (1969), in which a majority struck down a statute that prohibited registered voters from participating in certain school district elections unless they owned or rented real property in their local school district, or were parents or guardians of children attending the public schools in the district.[78]

By the late 1940s, Black believed that the Fourteenth Amendment's equal protection clause was a constitutional prohibition against any state governmental actions that discriminated on the basis of race in an invidious or capricious manner. Black saw only race and the characteristics of alienage as the "suspect" categories that were addressed and protected by equal protection. Black believed that the equal protection clause could not be introduced as a means to invalidate state action, unless that action involved racial discrimination, discrimination against aliens, or the one-man, one-vote principle. Black would maintain this view to his death, saying that race and alienage discrimination litigation merited strict scrutiny, as did violations of the one-man, one vote principle, whereas all other state-action litigation did not.[4]^:118 During his last full term on the Court, he participated in a unanimous decision, Graham v. Richardson, striking down statutes that restricted welfare benefits to legal aliens but not to U.S. citizens. The majority opinion stated, "Aliens as a class are a prime example of a 'discrete and insular minority' for whom such heightened judicial solicitude is appropriate.[79]

Black was one of the nine justices of the Supreme Court who in 1954 ruled unanimously in Brown v. Board of Education that segregation in public schools is unconstitutional. The plaintiffs were represented by Thurgood Marshall. A decade later, on October 2, 1967, Marshall became the first African American to be appointed to the Supreme Court, and served with Black on the Court until Black's retirement on September 17, 1971.

In United States v. Price (1965), eighteen Ku Klux Klan members were charged with murder and conspiracy for the deaths of James Chaney, Andrew Goodman and Michael Schwerner, but the charges were dismissed by the trial court. A unanimous Supreme Court, which included Black, reversed the dismissal and ordered the case to proceed to trial. Seven of these men, including fellow Klansmen Samuel Bowers, Cecil Price and Alton Wayne Roberts were found guilty of the crime; eight of them, including Lawrence A. Rainey, were found not guilty; and three of them, including Edgar Ray Killen, had their cases end in a mistrial.

• Black, Hugo L. (1968). A Constitutional Faith. New York, Knopf.
• Black, Hugo L and Elizabeth Black. (1985). Mr. Justice Black and Mrs. Black: The Memoirs of Hugo L. Black and Elizabeth Black. New York: Random House. ISBN 978-0-394-54432-8.
• Black, Hugo L., Mr. Justice Murphy. 48 Michigan Law Review 739 (1950).
• Black, Hugo, Jr. (1975). My Father: A Remembrance. New York: Random House.