Korematsu v. United States

About the Author

Hugo Lafayette Black was a son of the South, born in 1886 in rural Harlan, Alabama, and raised in the town of Ashland, Alabama. His early legal career gave little indication of promise before politics afforded him a means of raising himself in the world. After holding a few local offices, Black decided to run for the US Senate. The tactics he employed to get there were both practical and opportunistic. As a means of widening his base of support, Black used a populist orientation to appeal to organized labor, an alliance that led to his being called a “Bolshevik.” During this same period, when acting as defense counsel during a notorious murder trial, Black appealed to racial and religious bias to win his client's acquittal. In 1923 he joined the Ku Klux Klan because, as he said later, most Alabama jurors were Klansmen. It was a decision he came to regret, and he resigned from the Klan two years later. Still, Black's election to the Senate in 1926 was clearly aided by Klan support.

In the Senate, Black pursued a populist agenda, vigorously investigating improper ties between government and business and pushing for a thirty-hour workweek. His ardent support for the New Deal—and, in particular, for Franklin Roosevelt's plan to pack the Supreme Court with devotees as a means of ousting the old guard—attracted the president's attention. In 1937 Black himself became one of Roosevelt's Court nominees. Black's nomination was approved handily, but it was followed almost immediately by public revelation of his history with the Klan. Black confronted the issue head on by making a public confession over the radio, declaring that he had had no connection with the Klan for more than a dozen years and that he had no intention of having any further association with the organization.

Soon Roosevelt had appointed enough justices to make a “second,” more liberal Court than the one Chief Justice Charles Evans Hughes had led since 1930. Joined by such like-minded individuals as William O. Douglas and Frank Murphy, Black began his ascent as one of the Court's leading liberal thinkers by voting with a new coalition that upheld important New Deal legislation and emphasized individual rights, as in Johnson v. Zerbst (1938), a Sixth Amendment right-to-counsel case for which Black wrote the opinion of the Court. Black went on to lead the Court's so-called due process revolution, although one of the most significant cases for which he is remembered gave civil libertarians fresh reason to doubt his liberal credentials: he wrote the opinion of the Court in Korematsu v. United States (1944), the case upholding the internment of Japanese Americans during World War II.

Black was one of the most vivid and controversial personalities ever to occupy a seat on the Supreme Court bench. As a onetime Ku Klux Klan member, Black would seem an unlikely defender of the First Amendment, and yet he became the very embodiment of a black letter, literalist jurist, with his commitment to the rights established in the first eight amendments to the Constitution making him into one of the Court's intellectual leaders. He carried a dog-eared copy of the Constitution around in his right coat pocket and referred to it often. “That Constitution is my legal bible,” he would declare. “I cherish every word of it from the first to the last.” No part of the Constitution was more sacred to Black than the First Amendment, which, as he frequently—and pointedly—noted, begins with the words “Congress shall make no law.” For Black the framers of the Constitution meant what they wrote, and he demanded proof that laws being scrutinized by the Court were not in violation of any of the prohibitions that follow these words.

Black's commitment to individual rights was an almost inevitable consequence of his fealty to the Bill of Rights. When his customary literalist approach to constitutional interpretation proved inapposite to certain aspects of his agenda, he turned instead to what the historical record could tell him about original intent. In Adamson v. California (1947), for example, Black famously argued in dissent that his reading of the Fourteenth Amendment's adoption indicated that the framers intended to incorporate the Bill of Rights, thus making these protections binding at the state as well as the federal level. Conversely, Black refused to support rights others read into the Constitution without literal, written evidence to support their position. He was, for example, ardently opposed to the majority's extension of a broad right of marital privacy in Griswold v. Connecticut (1965).

Although he did support the right of the New York Times to publish the Pentagon Papers in New York Times Co. v. United States (1971), other opinions dating from the later period of his career reflect the same restraint and conservatism one detects in Black's vigorous Griswold dissent. Black always maintained that his was a consistent, disciplined approach to constitutional analysis. By the mid-1960s, Black had no stomach for the increasingly expansive reading of equal protection by the Court as headed by Earl Warren. The revolution he had set in motion seemed to have taken on a life of its own and passed him by. Black nonetheless hung on almost to the end. When he retired in 1971 after thirty-four years, he did so as one of the longest-serving justices the Court has ever known.