TRIBUTE TO A TITAN

...Business may still hate and fear him—as it did in the old Senate-investigation days—for his insistence that regulation in the public interest be something more than regulation in name only...

...That stage marked the nadir of his influence since his freshman year on the bench...

...For Warren, almost immediately and increasingly, recognized Black as the Court's ablest legal mind—and he has not since seen fit to revise that estimate...

...The number has gone up a bit since, but the cases are rarely of any real import...

...I should choose the current Supreme Court's dean, in intellect and in service—that wise and humble and gallant gentleman, Hugo LaFayette Black...

...when, in case after case, the "balance" was wickedly weighted against civil liberties...

...And the man most responsible for that change is Hugo Black...

...The hating and screaming and spluttering have never deterred Black from doing the job he thought he ought to do...

...Indeed, one reason why Justice Holmes, after his first score of years on the Court, was so much more acclaimed than is Justice Black today was that Holmes, as the proudest product of the not wholly un-chauvinistic Harvard Law School, had a sort of built-in claque to chant FRED RODELL, professor of law at Yale, is the author of "Nine Men: A Political History of the Supreme Court of the United States from 1790-1955," "Fifty-five Men: The Story of the Constitution," and, recently re-issued, "Woe Unto You, Lawyers...

...In rating Black above Holmes and above every other Twentieth Century Justice too—although Black's colleague in judicial courage and statesmanship, Justice Douglas, runs him a close second in my book—I am of course, and perforce, making a highly personal judgment...

...Those pressures, passions, and fears have scarcely subsided yet—but the slant of the Court has started to change toward greater solicitude for civil liberties...

...when the Smith Act and the McCarran Act and loyalty programs and loyalty oaths and all the rest were regularly upheld...

...not deigning to dignify the blast with a reply, Black went right on out-arguing, out-persuading, out-influencing the coterie that challenged his liberal legal leadership...

...It scarcely needs saying that this journalistic antagonism began even before Black took his seat on the Court...

...it also marked the nadir of the Court since the heyday of the Nine Old Men...

...2, Black's effective weight on the Court was practically nil...

...No such chorus of encomia was—or could have been—forthcoming for Black from the little Southern institution where he studied two years' worth of copy-book law...

...By the sheer power of his mind and his arguments (plus a deceptive mildness of manner that used to fool opposing attorneys in Alabama courtrooms and hostile witnesses in Senate investigations), he has often won—as Holmes rarely did—a Court majority to his side...

...he was never its leader and he was rarely its official spokesman when the big chips were down...

...This is not to say that Holmes sought to be touted— although his published correspondences with Sir Frederick Pollock and with Harold Laski make clear that adulation pleasured him, as it does most men...

...Political and professional anti-Communists may scream—and even call for impeachment—at his simple conviction that the Bill of Rights means what it says...

...Balking at Black, these three began to join camp with reactionary Justice Roberts and to work on unmilitant middle-of-the-roader Reed, to vote Black down...

...Thus, to put it statistically, Warren during his first term voted on the opposite side from Black in 22 cases...

...And while four men are still a minority of nine, they are infinitely more powerful than three...

...In the face of something akin to mutiny, Black, with Douglas at his side, now proved his latent strength and greatness...

...Black dissented liberally, futilely, and sometimes alone in several business-against-government cases—most notably in his learned insistence that corporations were not properly "persons" and so were not entitled to the protection of the 14th Amendment...

...Unembittered by personal piques and jealousies, he fought quietly on throughout the rest of the Court's New Deal decade to achieve the liberal ends he should not have had to fight for...

...As men, Black and Holmes would have been—and would have recognized each other as— equals...

...But it was Holmes' misfortune—or perhaps, in time's perspective, his good fortune—to serve on the Court in an era when his breadth of tolerance, his laissez-faire attitude (not economic but philosophic) was not judicially a la mode...

...And since Justice Black completed last fall his twentieth year on the top bench, this fortuitous fact may serve as excuse—if any excuse be needed—to pay him anniversary tribute...

...Let me begin by comparing and contrasting Black with Holmes...

...And even when he failed at first to put his view across, he has sometimes seen his old dissents turned later into law...

...Today I would dissent from the common and easy judgment...

...Under a Chief who decently appreciated, instead of resenting, Black's mastery of law and breadth of judicial statesmanship, the Court's senior member was on the way to becoming, for a second time, the Court's effective intellectual leader...

...With the force of his convictions, the power of his intellect, and the strength of his gentleness, he has fought to make of our public law a more effective servant of the people whom it is meant to serve—and his fight is still being won...

...Holmes was the conscience of his Court, its best mind, and its most gifted wordsmith...

...during his third term, in two...

...On the contrary, he has taken a position considerably to the liberal left of Holmes' old dissenting post, on both economic issues and questions of civil rights and liberties...

...He ended his Dennis case (Smith Act) dissent: "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...

...Few Justices in all our history and certainly no top-flight Justices (except perhaps Roger Taney of Dred Scott ill-fame) have had so poor a press as has Hugo Black...

...For his fame as a Justice, if not as a scholar, rests almost exclusively on those ringing protests against the narrow and mean-minded rulings of his benighted brethren—protests whose fine phrases, because unedited, could flow much more freely than can the more responsible language of a majority opinion which lays down the law, and to which at least four other Justices must agree...

...More than anything else, the two would have had in common that af-ter-the-battle serenity that comes with inner security—not pride but confidence—hard-won...

...Nor is his stature any the less for lack of one...

...If my choice of Hugo Black as this century's greatest Justice should sound to some a touch opinionated, off-beat, screwy, there is, I believe, one major reason why—and it had best be got out fast from underfoot...

...Thus too, the phrase "Justices Black and Douglas dissenting" was soon replaced—in economic cases as well as, more significantly, Bill of Rights stuff—with "The Chief Justice, Justices Black and Douglas dissenting...

...The two men would have got on famously together...

...As for me, I'll stick to Black as our greatest Supreme Court Justice of the century...

...Then came the sad summer of 1949 when Justices Murphy and Rut-ledge—who had stood with Black and Douglas on most of the major issues that had split a squabbling Court—both died...

...The mutual scope of their reading, depth of their learning, intensity of their interest in other men's ideas, and consequent tolerance of all men and ideas would have been a bond far stronger than any agreement on issues, any similarity of viewpoint on the comparatively transient stuff of legal law...

...As senior member of the new group, he led the Court smoothly through a year or two of the most consistently liberal decisions in its history, the bulk of them in the economic field...

...Black still has detractors aplenty— as every man with guts and integrity always has, especially when he succeeds...

...As Holmes was an Olympian from Yankeeland, so Black is an Olympian from Dixie...

...This is only to say that nothing comparable to Holmes' Can-tabriggian choir has ever been ready at hand to sing the praises of Hugo Black...

...And if the journalistic bitterness has since subsided, it has been replaced by a sort of so-what attitude, a variant of the silent treatment...

...Striking proof of his strength and influence came with Jackson's headlined bleat from abroad—after frustrated Jackson lost the Chiefship to Vinson at Stone's death in 1946—that Black had "bullied" him on the Court and he would take no more of it...

...Of course, Black's influence has waxed or waned with the Court's changing membership...

...The remaining eight, then seven, Old Men, though no longer striking down federal laws (the Roosevelt Court Plan had turned that tide before even Black was appointed), stuck otherwise to their old conservative ways...

...Deeply bothered but undismayed, Black (as did Douglas) affirmed and reaffirmed his liberal faith, knowing that times—and Courts—can change...

...TRIBUTE TO A TITAN Twenty Years of Hugo Black by FRED RODELL Asked to name the greatest Supreme Court Justice of the Twentieth Century, most people, most lawyers, probably most members of the present Court would automatically come out with the grand old man of dissent and skepticism and style—Justice Holmes...

...With the naming of Clark and Minton to join Truman's two previous Justices, Burton and Vinson, the third stage of Black's Court career began...

...He has shared the bench and the conference room with 23 different men...

...The Boston Brahmin to whom culture and education came as part of the natural process of growing up, where he grew up, would have felt kin to the Alabama cotton-kid who got his book-learning later in life simply because he thirsted for it...

...Unlike one or two of his past and present colleagues—who made or make a scrapbook-filling business of playing to the galleries, of buttering up influential newsmen and their bosses, of collecting circles of sycophants— Black goes his mild and mellow-minded way, oblivious to good publicity as to bad, as genuinely friendly to any law-school freshman as to the editor of the Washington Post or the New York Times...

...Today, with the executive branch of our government dedicated to big guns and big business, with a Congress mired in apathy toward every issue save party politics, with only the Supreme Court concerned in the least about American ideals and liberties—and with one man quietly leading and talking the Court toward such concern—I should choose another Justice than Holmes as the century's greatest...

...Self-styled, self-restraining "judicial passivists" may splutter that it is just not the proper business of the Supreme Court to protect civil liberties against the legislative or popular will...

...Losing here but winning there, he remained, amidst the would-be prima donnas, the Court's most potent and steadfast force, whether he lost or won...

...they have only to win one man to their side in any specific close case—and the threat of a rugged four-man dissent which will include the Chief Justice and the dean of the Court is no inducement to setting up a majority opinion as a sitting-duck target...

...Hence, the spate of liberal decisions, based on a new Court respect for the Bill of Rights, that started last spring and has continued into the present term...

...He has not done this by sitting in the middle and playing "swing-man" in close cases...

...But the honeymoon of the New Dealers was not to last for long...

...The fourth and current stage of Black's Court career—a stage which has seen his influence steadily rising—began with the appointment of Warren to the Chiefship...

...With the appointment in quick succession of Justices Frankfurter, Douglas, and Murphy—giving the Rooseveltians a five-man Court majority—Black's influence suddenly burgeoned...

...And though Douglas and Warren and Brennan of course share the major credit for these, I believe top honors go to Hugo Black, crusader and persuader, who has come back into his judicial own...

...his commercials for him...

...First Chief Justice Stone of the old Holmes-Brandeis-Stone dissenting team, then ex-Professor-and-Supreme - Court - expert Frankfurter, later brash and bright and ambitious Justice Jackson, each came to resent the fact that the mantle of liberal leadership was on Black's shoulders instead of on his own...

...As a freshman Justice—first of Franklin D. Roosevelt's appointees, first to break the ranks of the fabled Nine Old Men—and even after Stanley Reed joined him as New Dealer No...

...Hence, "the great dissenter"—and hence too Holmes' fame...

...In the context of a judicial body, "bullied" could only mean out-argued and out-persuaded...

...These were the four or five years when the number-one business of the Court became a "balancing" in individual freedoms against national security, in all their many facets...

...Schoolboys and subway strap-hangers find the names of Frankfurter, Warren, even Tom Clark, more familiar than that of the Supreme Court's senior member...

...most non-lawyers still know him today only as that Roosevelt-appointed New Dealer who once belonged to the Ku Klux Klan...

...during his second term, in only 12 cases...

...And his Court career can be roughly split into four different stages, in terms of the influence he has wielded...

...The phrase "Justices Black and Douglas dissenting" became as common as was "Justices Holmes and Brandeis dissenting" a quarter of a century before...

...Indeed, I should be hard put to think of more than a name or two to compete with Hugo Black as our greatest living American...

...But I believe it can be made to stand up to all but those whose personal loyalties, whether ideological or lickspittle, incline them to a contrary choice...

...Ten years ago, maybe five years ago, I should have agreed, though Justices Brandeis and Hughes would have given me pause...

...Since this last was an effort to overturn half a century of Supreme Court precedents, it was at least a mark—and a portent—of Black's intellectual independence...

...The appointment of Justice Bren-nan turned the new trio into a quartet—reminiscent of the Black-Doug-las-Murphy-Rutledge group of a decade before—as Brennan too clicked to the strength and soundness of active judicial liberalism...

...By contrast, Black, throughout most of his two decades on the Court, has influenced, more than any other Justice, the course of Supreme Court law...

...Ask any lawyer or law professor or judge to name off-hand as few as four or five important Supreme Court cases in which Holmes, during his almost thirty years as Justice, wrote the Court's opinion—and perhaps the point will come more clear...

...The point is that Hugo Black, out of his deep personal humility and his dedication to the job of being a Justice, simply doesn't care...