Cass Sunstein has a column arguing that Justice Hugo Black “who served from 1937 to 1971, is the court’s most overrated justice.” I strongly disagree with Sunstein (hardly the first time); I think Black is one of the best justices who served during the middle of the 20th century.
Sunstein likes Black’s generally liberal decisions, but he is critical of Black’s methodology of textualism and originalism. Sunstein begins with Black’s textualism, writing:
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.”
But Sunstein rightly points out that the key question is what “freedom of speech” means and many laws that interfere with speech may not interfere with freedom of speech.
Next Sunstein moves on to Black’s originalism:
If you believe that the Constitution means what it originally meant, you might be able to make more progress by consulting history.
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.
Sunstein may be right that Black viewed the history in a biased manner to support results he desired, although to be fair scholars disagree about this.
But even assuming Sunstein is right about Black on text and history, that does not eliminate the value of what Black did (especially as compared to the other justices, who after all, largely followed their own political convictions). Black was an important voice for originalism (and textualism) during a period when it was scoffed at by the legal world (much as Sunstein continues to scoff at it.) Thus, Black had the correct view of constitutional interpretation – which in my view is the most important issue in constitutional law – during a period when almost no one else did. That is an impressive achievement.
Moreover, if Black got the text and history wrong, within an originalist enterprise, that is more easily correctable than if Black was using other interpretative approaches. If one accepts originalism – especially a version that recognizes significant input from the originalist materials – then the possible mistakes that Black made are more easily correctable. Other scholars and judges can see where the mistakes were made, since they based on text and history.
Contrast the ease of correcting an error when the justice follows the wrong position. Sunstein likes that Black was “on the right side of history.” Even assuming we know what the “right side of history” means in the abstract, how do we show that someone’s views are the right side?
Finally, it is a bit unfair to treat Black as getting the text and history wrong consistently. He sometimes voted based on the text, such as in the Contracts Clause case of City of El Paso v. Simmons, against what we would predict his political views were. And Justice Black appears to have gotten right the incorporation of the Bill of Rights under the Privileges or Immunities Clause
In the end, Justice Black was a first rate justice. He was an originalist when almost no one else was and that counts for quite a bit.