Hollingsworth, Harold M.

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University of Kentucky

Kentucky Law JournalVolume 56 | Issue 3 Article 71968Hugo Black and the Supreme Court: A Symposiumedited by Stephen Parks StricklandHarold M. HollingsworthUniversity of Texas-ArlingtonFollow this and additional works at: https://uknowledge.uky.edu/kljRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Book Review is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationHollingsworth, Harold M. (1968) "Hugo Black and the Supreme Court: A Symposium edited by Stephen Parks Strickland," KentuckyLaw Journal: Vol. 56 : Iss. 3 , Article 7.Available at: https://uknowledge.uky.edu/klj/vol56/iss3/7Book ReviewsHuro BLAcK Am Tm Supmvma CoujIT: A SYNcosrum. Edited byStephen Parks Strickland. Indianapolis: The Bobbs-Merrill Company,Inc., 1967. Pp. 340. $10.00.No one should be surprised that Hugo Lafayette Black has in-spired this able symposium. After all, Black was the first of the newbreed of Justices who came to the Supreme Court of the United Statesafter 1937; thirty years later, he is not only still on the bench but isgenerally recognized as the intellectual leader of the majority factionof the "Warren Court." Therefore, a study of Black and his juris-prudence is not a mere exercise in eulogistic scholarship, but aneminently practical method for coming to grips with a mode ofthought which is a continuing vital influence in American law.This volume was written for the knowledgeable layman. Any law-yer, no matter how far removed from his last encounter with consti-tutional law, can read it with pleasure and profit Its emphasis is onBlack the Judge; its greatest weakness is that Black, the tennis-playing octogenarian from Birmingham, Alabama, never comes clearlyinto view. In other words, there is much of the intellect but too littleof the man. Contrary to popular opinion, Justices are people, and anunderstanding of the judge is ultimately dependent on an under-standing of the human beneath the robe.Justice Black emerges from these essays as an independent in-tellect, a man whom others may follow, but a man who sets his owncourse with but little regard for friend or foe. He came to the benchas a New Deal Senator, committed to the political philosophy whichunderlay the major reform legislation of the 1930's. However, Blackhas proven to be much more than a partisan politician, as exempli-fied by his drive to see things as a whole and to define the natureand scope of American government in terms which any inexperiencedpoliceman or literate citizen could understand.Unlike Felix Frankfurter and Oliver Wendell Holmes, for whommost questions were ultimately matters of degree, Black did not makea fetish of avoiding formal limitations upon the power of government.He does not fear government, in fact, Black thinks that it is a positivegood. He believes in federalism, and would allow the states morelatitude in the regulation of commerce than most of his fellow justices.He believes in the people and is loath to override their opinionsKENTUCKY LA W JourNALwhether expressed by legislatures or by a petit jury. Yet, Blackalso believes that government is limited, not by indefinite rulesformulated by judges to meet the exigencies of a particular situation,but by guidelines set by the founding fathers and the framers of theBill of Rights. The duty of judges is not to ntrike a new balance, butto apply the principles underlying these constitutional standards to theever changing problems of modem society.From the Foreword by Charles Black, Jr., to the conclusion byStephen Strickland, most of the essays are sympathetic to JusticeBlack and his approach to the major problems confronting theSupreme Court during his tenure on the bench. But this is no un-relieved panegyric. Carl Brent Swisher's initial essay, which setsBlack's career in its historical context, is definitely hostile to the coursefollowed by Black and a majority of the Court since 1952.[Dlecisions . . . sometimes read like fiat determinations made withoutreference either to documented history or to clearly expressed principle.1[Bloth the Court and its critics are apt to find it expedient sometimesto pretend to a certainty they do not feel, and thus occasionally to soundforth with unbecoming shrillness. 2More and more the Court seemed to be struggling toward the position ofa positive agency of government, an agency defining rights and dutiesin advance of individual clashes under the adversary system by whichour courts have traditionally operated. 3Swisher tactfully, but firmly, carries the main burden of the negative,but is joined in the penultimate article by George Kaufmann who,after giving a sympathetic analysis of Black's hostility to the FederalCivil Rules, concludes, somewhat reluctantly, that the Justice's curemay be worse than the disease.This volume also includes an historical essay by John P. Frank onThe New Court and the New Deal, a brief but revealing comment byDaniel Berman on The Persistent Race ssue, and a rather shrill pieceof scholarly polemic by Irving Dillard, The Individual and the Bill ofAbsolute Rights. These are followed by three articles which have ap-peared elsewhere. That portion of Charles A. Reich's seminal articleMr. Justice Black and the Living Constitution4 which proposes arational synthesis of Black's judicial philosophy is reprinted along with1 C. B. Swisher, History's Panorama and Justice Black's Career, in HuGoBLACK AND TM SuPn Eas Cou'T: A Symposlm' 23 (S. Strickland ed. 1967).[Hereinafter cited as Strickland.]2 Strickland 24.3 Strickland 27.4 Reich, Mr. Justice Black and the Living Constitution, 76 HA.v. L. REv.673 (1963).[Vol. 56,BOOK RE iEwsan ably edited version of one of Randolph Paul's last articles, Mr.Justice Black and Federal Taxationi and finally an essay based onW. Wallace Kirkpatrick's Crossroads of Antitrust and Union Power,6and Mr. Justice Black and Antitrust.7 Paul's article includes an excel-lent concise analysis of the relationship between the Supreme Courtand partisan politics.As Strickland points out in a brilliant concluding essay, Black asa judge is too big to be contained either by the labels he has fixedupon himself or those which have been fastened on him by others. Heis, after some fashion, a liberal, an absolutist, a judicial activist, alibertarian, and a radical. But none of these labels really fit. Stricklandcontends that Black is a Madisonian and ultimately a conservative.This is a judgment which, unless Black confounds us all by radicallyrevising his philosophy during yet another decade on the bench, Ibelieve will stand the test of time.Harold M. HollingsworthAssistant Professor of HistoryThe University of Texas at ArlingtonLABOR N THE SoU=H. By F. Ray Marshall. Cambridge: Harvard Uni-versity Press, 1967. Pp. 406. $8.00.A non-writing law teacher once asked J. Allen Smith "But whyshould I write a book review?" and Allen answered, "To show thatyou've read a book." In light of repeated claims that law schools needmore social science courses, a brief look at a recent product of onesuch social science might be of some relevance.Perhaps Professor Marshall' will forgive me for using his book tofocus a criticism which involves not only history, but also those othersocial sciences traditionally called humanities-including law. Pro-fessor Marshall, after all, works in a distinguished tradition and hasinherited, not invented, its vices. He has produced a history of laborin the South that is both scholarly and disinterested and these are thebook's primary flaws. Filled with facts and figures which are the5 Paul, Mr. Justice Black and Federal Taxation, 65 YA L.J. 449 (1956).6 Kirkpatrick, Crossroads of Antitrust and Union Power, 34 GEo. WAsH. L.REv. 288 (1965).7 Kirkpatrick, Mr. Justice Black and Antitrust, 14 U.C.L.A. L. RBv. 475(1957).1 Alumni Professor and Chairman, Department of Economics, University ofKentucky, Lexington.1968]

Hugo Black and the Supreme Court: A Symposium edited by Stephen Parks Strickland

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Hugo Black and the Supreme Court: A Symposium edited by Stephen Parks Strickland

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