Elizabeth S. Black*

I think it a noble and pious thing to do whatever we may by written word and molded bronze and sculptured stone to keep our memories, our reverence, and our love alive and to hand them on to new generations all too ready to forget.

–Oliver Wendell Holmes, Jr., At the unveiling of Memorial Tablets at Ipswich, 1902.

Introduction

Alan Westin's book An Autobiography of the Supreme Court[1] gives its reader an informal picture of the growth and development of the Supreme Court through the words of the justices themselves. We are allowed to listen in to a collection of select out-of-court commentary: various speeches, letters, memoirs, and the like–chance utterances tracing the history of the Court from 1790 to 1961. The canvas is rich. It includes John Marshall's newspaper defense of M'Culloch v. Maryland,[2] published under the Great Chief's pen name "A Friend to the Union." Holmes is in the book; and Hughes; and Warren–giants all. So is Felix Frankfurter: represented by his address on The Process of Judging in Constitutional Cases,[3] delivered before the American Philosophical Society in 1954. Justice Douglas follows Frankfurter–they are back to back in the book–with a few thoughts of his own on Judicial Review and the Protection of Liberty.[4] And Mr. Justice Black makes a double appearance on the pages of this book. His Jam Madison Lecture, The Bill of Rights (1960),[5] is included. So is his public interview with Edmond Cahn. This latter occasion was a rare event in the life of the Court. Never before had a justice opened himself so widely to questioning in public. The interview was unrehearsed and later published, without prior submission of the transcript for approval, under the title Justice Black and First Amendment "Absolutes". A Public Interview (1962).[6]

Hugo Black, it appears, could be persuaded to talk in public about his views and his work on the Court. But it took time, lots of time. If a family member favored the idea, especially his wife–first Josephine,[7] then Elizabeth–the chances were good that Justice Black would eventually give in.

It is recorded elsewhere that Elizabeth "conspired to get him to break his long-standing rule of not speaking out on constitutional issues" en route to the Carpentier Lectures at Columbia in 1968.[8] Hugo Lafayette Black's A Constitutional Faith saves these lectures in imperishable form, between the covers of a book.

But the idea of a television interview, unrehearsed and to be shown to millions of Americans, struck Hugo Black cold. "Judges should stay off television,"[9] was his immediate reaction. It took years to talk him into it. According to Frances Lamb, Justice Black's secretary during September 1968 when the film was made, "Martin Agronsky, Elizabeth, and I twisted the Judge's arm for five years–maybe longer."[10]

According to Hugo Black himself: "Elizabeth is entitled to much of whatever credit is due for my granting the interview. She began urging that I do a television program very shortly after she arrived in Washington thirteen years ago. Finally I reached the conclusion that there was no way to escape her constant importunities except to yield–therefore the program. One further statement should be made and that is that it became more difficult to deny her any request with each passing day and year."[11]

Here is the story of the CBS interview from the pen of a co-conspirator in the plot. It is offered by one who cares for the Court and for its history and by one who loved Hugo Black.

Elizabeth Black was first Justice Black's secretary, from March 1956 to September 1957,[12] and then his wife for fourteen years. She added gold to the sunset.

It was said of Boswell that he was curator of Johnson's memory.[13] So let it be said of Elizabeth Black, who for some twenty-five years now has sought to preserve Hugo Black's memory What follows is one chapter of Elizabeth's memoir, to be published in due course.[14] This latest installment includes material never before made public. Here are excerpts from the sound recordings of the interview not used on the television broadcast, [15] is Here too are excerpts from Hugo Black's letters[16] to friends and strangers alike about the talk they heard that eventful evening in December 1968.

Elizabeth Black's account throws new light upon the mind and personality of Hugo Black. It invites you to see this man for yourself.

Whether we shall see another interview like Justice Black's is uncertain. Speaking as a teacher, I am glad to have Hugo Black come to class.[18] Legal education, it seems to me, also has its claims.

"Who could resist the inspiration of the magic by which light and sound were converted into some other essence, instantaneously transported, and made permanent upon a tiny celluloid strip?"[19] Who could resist the humanity of Hugo Black? His is a heritage worth remembering.

I

Martin Agronsky sowed the seeds for the interview Hugo Black and the Bill of Rights back in 1957 when I was working for Hugo as his secretary He and Eric Sevareid finally completed it for Columbia Broadcasting System in 1968. Periodically, Martin would call Hugo on the telephone to boost the idea. Later, Martin came to the office, and while waiting for Hugo to see him, enlisted my help in getting Hugo to consent. After I married Hugo in 1957, Martin asked Frances Lamb, my successor as secretary, to speak a good word to Hugo now and then on behalf of the project. It didn't take much to get my help, nor Frances', because we were both enthusiastic about having Hugo do the program. Hugo always shied away from television, yet I thought it would be a shame for future law students and citizens not to have the opportunity to see and to hear the eloquence and sincerity of Hugo, whose opinions had made such an impact on the law of the land.

In November of 1964, through Martin's continuing persistence, Hugo agreed that he and I would go to dinner with the Agronskys and the Fred Friendlys, the latter being Executive Producer of CBS Reports at that time. Accordingly, the Friendlys flew down from New York to talk about the project. They and the Agronskys took us to dinner at the Hay Adams Hotel. At the end of the meal, Friendly asked Hugo about doing a conversational interview with Agronsky for CBS, to be used according to Hugo's desire, either immediately, or at Hugo's retirement, or at some other time in the future – whatever Hugo decided. He and Martin urged that it would have been so fine had John Marshall, Abraham Lincoln, and other historic figures been interviewed on video tape. How instructive to students of this age to have such tapes. If Hugo would agree to do it, they said, his tape would be invaluable to future generations of law students and legal scholars.

Friendly told Hugo that the conversations with Agronsky could be about the Constitution, the Bill of Rights, his reminiscences about Alabama, campaigning for the Senate, or whatever he chose to talk about. I put in an argument that few people, especially the young in Alabama, knew anything about Hugo's personality Still, Hugo held fast to his view that a sitting justice of the Court would do better to stay off television. By tradition, the Justices speak only through their written opinions, although public appearances are not unheard of.

At any rate, Hugo resisted Friendly and Agronsky quite well. While he didn't say no, he didn't say yes either. He left them hanging.

Several years passed. Martin's calls, although periodic, were getting nowhere with Hugo. Now and then Martin would call me at home. "Work on him a little bit," he'd say I would try my best. Eventually Hugo became annoyed at this and told me it would do Martin no good to try to get around him through Frances Lamb or me.

In July of 1968, the seeds took sprout and started to grow. Imagine my surprise, on coming home from a morning of tennis, to have Hugo tell me Martin Agronsky was coming out to lunch. In a nonchalant way, Hugo said that Martin had called and asked him once more about the interview. Hugo replied that if he did it, it should be done before the opening of Court in October. I was astonished but said nothing.

Hugo went on to tell me that Martin had asked if he could come to lunch and bring a man from New York with him. Hugo replied, "No, Martin. You come on out today, but come alone. You're a married man, and you know better than that." Martin came alone. After I joined them, Martin received my permission for him to come the next day with three men from New York.

Agronsky stayed until about 5:00 p.m., talking about the possible subjects to discuss in the interview. Hugo told him he wanted to do the interview spontaneously and unrehearsed, without questions being submitted in advance. He also told him he wanted the program filmed in the study at home. I had my misgivings.

The following day, September 14th, Martin and three associates came to the house: Burton Benjamin, a producer for CBS News; Bill Small, Washington Bureau chief; and Eric Sevareid, who was to conduct the interview jointly with Martin Agronsky

After lunch they looked over the study They liked the setting, but said it was a bit small for three film cameras. However, they believed they could do it. Mr. Benjamin walked about, sized up the situation, and discussed what furniture had to be moved. They wanted to send a crew to the house on September 19th to do outside shots and to get everything set up for the interview, and on September 20th, to walk in promptly at 10:00 a.m. and start shooting. That meant I had to give the study a thorough cleaning. After all, I would hate for the world to see cobwebs hanging from my ceiling.

Meanwhile Martin and Eric talked to Hugo about his philosophy It was a little warm-up session to get Hugo in the mood.

A few days later, the electricians from CBS came out. They said we had plenty of juice in the basement but they would have to run heavy electric cables from there to the study, because considerable current would be required to provide adequate lighting for the cameras.

The house was disrupted from then on. Bright spotlights were taped on the walls of the study close to the ceiling, to give light for the camera, yet were strategically placed so as not to shine in Hugo's eyes. After two cataract operations, his eyes were very sensitive to light.

Hugo, Jr., arrived in Washington on business during this hectic period. His .dad told him about the verbal agreement he had with CBS allowing him to correct any misstatements or to withhold the program entirely Hugo, Jr., advised him to get it in writing.

On the day of the filming, the first order of business for me was, naturally, the beauty parlor. In my rush to get out of the house I had the bad luck to drop a potted plant on my foot. At the time it didn't do much damage except to my temper. I returned home at 11:30 a.m. and found men swarming all over the place. CBS trucks were in great evidence on the street. All the neighbors were consumed with curosity, and I told one of them what was happening so she could pass the word along. There were about fifteen men in the study, and most of its furniture had been moved to our bedroom or placed in the hall, making room for all the necessary equipment. Three cameras were set up. The sound men were jammed into our upstairs bathroom, sitting around going over their tape machines. Cigarette smoke was everywhere.

I found Hugo sitting disconsolately downstairs, fully dressed, with coat and tie, trying to read certiorari notes. I felt so helpless that I went down and joined him, and we just watched the goings-on.

Mr. Benjamin asked me if I could induce Hugo to play a little tennis for the camera. Hugo had steadfastly refused to let anyone take movies or pictures of him while playing tennis, but because he wanted me to get into the act, he agreed. Both of us went out to our tennis court at 3:00 p.m. They asked for 2:30 p.m., but Hugo perversely decided to take a nap first. After they had enough pictures, Hugo decided to continue playing for about an hour. By the time we quit, my injured foot was giving me fits, so I had to treat it and lie down.

While I was resting, Hugo followed Hugo, Jr.'s, advice and called Martin Agronsky, telling him he wanted his right to review the film for accuracy put in writing.[20] Martin said he would try, but in a few minutes called back and told Hugo it was not the policy of CBS to put such things in writing. Whereupon, Hugo said it was not his policy to give an interview without such an agreement. It was nip and tuck for a while as to whether the interview would proceed at all. Meanwhile I was dismayed because all that equipment was stacked up against the walls and I could not even open a closet door or get into the bathroom. In about twenty minutes, though, Martin called back and said CBS had agreed to put it in writing. At least this crisis was over.

I woke up at 3:30 a.m. on Friday, the day of the interview, and for the life of me l couldn't go back to sleep. One might have thought I was the one to be interviewed. Hugo slept peacefully on. When it was time to get up, my foot was miraculously better, and we dressed. I glanced out the window at 7:00 a.m. to see a group of men milling around our front door waiting to get in. We closed the dining room door to give us privacy while eating breakfast and sent Lizzie Mae, our maid, to let them in.

At 9:30 a.m. we went up to the study The make-up lady patted a little cake powder onto Hugo's face and balding head, and darkened his eyebrows a smidgeon. At 10 o'clock Mr. Benjamin asked Hugo, Jr., and me to sit on the sofa across the room from Hugo's desk and out of range of the camera. Hugo took his seat behind his desk and Martin and Eric sat to the side of him, as though they were law clerks.

Mr. Benjamin from his producer's chair gave the order to start. The lights went on, and a camera man ran over in front of Hugo's desk shouting "sticks" as he closed them together to indicate when a section was beginning for editing purposes. This performance with the sticks amused Hugo and he laughed, which gave him a pleasant look during the interview.

The conversation opened with talk about Hugo's age–he was then 82–and his health, and then quickly turned to tennis and to reading, two of Hugo's favorite subjects.

II

What follows was not used in the interview broadcast on television, but it may be of interest to Court-watchers and to legal scholars.[21]

That last line, "I've tried never to eat too much," was stated with emphasis. I heard it over and over again during our marriage, particularly at dinner time. Hugo never let me touch gravy!

Martin did not quite understand the motto and asked Hugo how he interpreted it. Hugo answered, "Moderation in life, on everything. Don't go to wild extremes." Hugo's answer allowed Martin to break the legal ice. A question about Hugo's judicial philosophy followed:

Agronsky then turned to Hugo's absolutist view of the First Amendment. Was there any inconsistency in Hugo calling himself a moderate and his view that the First Amendment was an absolute? Hugo didn't think so. He believed it was not a judge's place to deviate from the letter of the law, but to follow it. "And if we'd follow it," he told his interviewers, "we'd be all right."

During his James Madison Lecture,[22] Hugo made a statement that sparked an uproar of commentary among the scholars. His words, even his italics, were examined under a microscope in the academic literature. Agronsky had done his homework for the interview; he was familiar with Hugo's earlier declarations and he asked Hugo what he meant when he said: "It is my belief that there are 'absolutes' in our Bill of Rights, and that they were put there on purpose by men who knew what words meant and meant their prohibitions to be 'absolutes.'"[23] Hearing Martin's question prompted a smile from Hugo, and he reached for the Constitution he always carried in his pocket, opened it, and began to instruct his listeners on how to read the Constitution:

Constitutional scholars are, of course, quite familiar with Justice Black's view that the First Amendment, while protecting speech, does not give people the right to assemble on other people's property, including the government's, without permission for purposes of protest. Sevareid challenged Hugo on this point, asking him whether he wasn't infringing on the right of protest itself: "How can they do it? Where can they do it?" Sevareid wanted to know.

"Is there a way to define the line between action and speech?" Sevareid asked. Hugo's answer got the whole group to laughing:

Hugo concluded his argument on this issue by asking his interrogators a question of his own:

At this point Hugo leaned back in his chair, confident of his position, and added: "All right." Then he wound up by saying: "They've got a right to talk where they have a right to be, under valid laws." This line caught the attention of the press and of the reviewers and there was much talk about it in next morning's papers.[30]

A highlight of the program for me was Hugo's reading from his opinion in Chambers v. Florida.[31] He regarded the closing part of his Chambers opinion as his best writing and he often read it to his clerks and to others with great conviction. The passage captured ideals that Hugo cared for dearly.

Throughout the interview Hugo answered the questions with a firm and forceful voice. Close-ups of Hugo's hands sparked the visual imagery of the film. Anyone familiar with Douglas Chandler 's remarkable portrait of Franklin Roosevelt" knows the drama of the human hand in action. Hugo's were galvanic.

At one point Martin asked Hugo why he always carried "that little book of the Constitution" in his pocket. "I would think you would know the Constitution by heart at this time." The question lighted up Hugo's face with another of those smiles that endeared him to just about everyone. Hugo had a little confession to make, and he didn't mind making it before millions: "Because I don't know it by heart. I can't–my memory is not that good. When I say something about it, I want to quote it precisely And so I usually carry it in my pocket."

Time and time again during the interview, Hugo reached for his Constitution. He read from it, folded it in half, tossed it on the table. So dog-eared and tattered was the little book that it made a dramatic sight lying there on the desk. The cameras zeroed in on it; it appeared to be about two inches thick.

Hugo loved that little book of the Constitution and the camera knew it. So did the country.

Later, Burton Benjamin conceived the idea of giving away copies of the same type of Constitution that Hugo always carried with him. Hugo bought his from the Government Printing Office for a dime. An announcement was added at the end of the program saying that CBS would give a free copy of the Constitution to anyone who would write in and request it. The idea proved to be popular, though costly, for CBS.

To Hugo, having the law written down–positive law, "not a natural law, "–was a good thing. The governed and the governors both knew where they stood under the written law; they both knew the limitations upon the other, be they restrictions upon government or upon the people themselves. "You see, you have laws written out; that's the object in law, to have it written out," said Hugo. "Our Constitution–I would follow exactly what I thought it said at the time. .And I wouldn't try to amend it. Because I thoroughly believe in the division of the three powers–branches of government."

"You don't feel the judges should judge according to what fits the time?" Martin asked Hugo. "No, how would they know? Jefferson asked why couldn't you trust the people?–says the others want to trust just one man–and one man can certainly not sense what's right and just any better than the whole public."

Every once in a while during the interview the camera would catch the four portraits, including Thomas Jefferson's, that hung above the mantel in Hugo's study Jefferson was one of Hugo's favorite minds; he read everything Jefferson wrote surviving in print. Obviously Hugo was influenced by his ideas.

These question-and-answer sessions went on for thirty minutes; then the group would break for five-minute intervals. There were six thirty-minute sessions in all, lasting from 10 a.m. to 1:30 p.m. The program was planned for one hour on the air.

Sevareid renewed the interview with a question about the inner workings of the Court, which to most Americans are a complete mystery The man on the street has no idea how the Court works. To him the certiorari mean nothing. To a Supreme Court justice the petitions for certiorari–the "petes for cert." as Holmes used to call them–are like keys to the Court's front door–some fit, some don't. And the certiorari are everwhere–upstairs and down, in the office, in the home–even on the road. Hugo did his best to explain how the Court picks its cases and the voting order at Conference, technical matters mainly. The Conference is confidential, but Hugo spilled no secrets in talking about Conference procedures, which have been public knowledge for years.[25] Martin's next question put the eye of the viewer right back at the keyhole.

Now here is a line of questioning that would interest the crowd. Hugo answered candidly, and without hesitation. His response should come as no surprise to anyone familiar with human nature.

Justice Frankfurter's Conference Diaries[26] bear bleak witness to the anger Felix sometimes felt toward his colleagues, including Hugo. Any time a man's life hangs on a vote, flare-ups are likely Eric Sevareid reminded Hugo that the Greeks "enshrined reason and I suppose a judge must go back to that." Hugo responded: "Of course you must be reasonable,' and they talked about the reason, but they had emotions, a lot of them." All strong men do, and Supreme Court justices are no exception. But let there be no mistake about it: after many battles fought as intellectual foes, Felix and Hugo were friends at the finish. That is what I know to be the truth of the matter.

Hugo also revealed how he used his little black book at Conference and told of his way of voting cases up or down on certiorari.

Historians of the Court know that Hugo insisted on burning his cert. notes before retiring from the Court; they literally went up in smoke in September 1971. Hugo, Jr., tells the story in his Remembrance.[27] Fortunately a few of the cert. notes survived the flames. They were found in an envelope marked "Sample Certs" in Hugo's bold hand. The envelope had been filed away somewhere and forgotten. These few remaining cert. notes illuminate Hugo's mind and his methods to the American people. They satisfy the claims of history, not the tittle-tattle of gossip, and show a heritage worth remembering.[28]

Students of the Court often wonder whether the Conference is a place where fixed views are vented and then the votes are counted, or is it more a forum for discussion and determination of joint views? "Have you ever gone into a judicial conference with one point of view and come out with another?" Martin wanted to know. Hugo's answer casts light on the nature of the Conference for those who care to see it: "Certainly, certainly," Hugo answered emphatically

Students of the Court also wonder whether the Chief Justice's power to assign the writing of opinions affects the voting. Hugo was quite firm on this point: "It certainly would not have with my vote. My vote's mine. I'm going to vote it according to my conscience every time it comes up, not according to what somebody could or had done for me before.

At the conclusion of the filming everyone felt a sense of relief that the great effort was over. About a week later after listening to the sound recordings of the interview, Hugo decided to ask CBS to eliminate Eric's questions about the Ku Klux Klan. While Hugo's answers were innocuous enough, he recalled that at the end of his 1937 radio address concerning his joining the Klan, he had said the subject was closed and he would never again discuss it publicly.[34] Hugo explained his decision to me saying, "That is the subject I do not intend to revive. The newspapers do enough of that." Hugo wanted the interview to focus on the Court, not the Klan. Hugo's request proved academic, however, because Mr. Benjamin had already decided to eliminate this part of the program. As a result of the deletion,[35] the television audience heard nothing about the Klan during the interview, with the exception of Sevareid's reference to it in his opening statement.[36] Other than the Klan discussion, the rest of the interview needed only minor editing.

A little while later Hugo began worrying anew about the propriety of a sitting Justice doing such a program. "Perhaps," mused Hugo, "they should postpone showing it until my birthday in February somewhat like a special they did on Carl Sandburg's birthday, or they should use it when I retire. There ought to be some special reason for it being shown." The agonies of uncertainty that Hugo and I went through night after sleepless night were unbelievable, looking back on it now.

What we went through, however, was nothing compared to the agony Martin Agronsky felt when Hugo told him he wanted to postpone the program. Poor Martin! He had just recovered from an emergency appendectomy and was on assignment in Boston when Hugo's proposal hit him. Martin called from Boston, very upset, and told Hugo that CBS had already spent $100,000 on publicity for the December 3rd showing. They had taken full-page ads in The New York Times and The Washington Post showing a huge picture of Hugo and advertising the program. Hugo was unimpressed. "They haven't taken out any $100,000 ad, Martin. That's ridiculous." Although Hugo seemed adamant about a postponement, he agreed to talk to Martin further about it next day When Hugo hung up the telephone he turned to me and said, "Now I don't want you or Frances to be talking to Martin and conniving about it behind my back." When he found out I told a friend about the interview, Hugo reacted emphatically: "Don't tell anybody about it! I may never let them televise it."

By this time, I just wished the whole thing would go away I knew that Hugo was disturbed and I was distraught, and we were both sleeping poorly I wished I had never heard of CBS or the program.

The next day Frances Lamb called me from Hugo's office. She said Martin had flown down from Boston to talk with Hugo. Since Hugo was on the bench until noon, Martin had not come until the lunch hour. Frances was afraid to speak a word to Martin, after Hugo's admonition. Martin had gone into Hugo's office and through the open door she could hear him offering earnestly one reason after another for broadcasting the program as planned on December 3rd. Each time Hugo demurred. Finally, after Martin exhausted every reason he could think of and the bell rang for Hugo to return to the bench, Hugo announced: "Well, Martin, there is one reason I have thought of, if CBS will accept it."

"Oh, sure, Judge, I know they will accept it. What is it?" Martin asked.

"Well, Martin," Hugo told him, "you know I have just recently given the Carpentier Lectures at Columbia, and they are about to be published. If the broadcast could somehow be tied in with the lectures, I think that might be an acceptable reason to show the program." With a big sigh of relief, Martin left.

A week or so later CBS asked another favor. Would Hugo agree to walk across the plaza in front of the Court in his robe for the camera? Hugo thought it was a pretty corny thing to do, but they insisted and he complied. He had fought with them on so many things along the way that his resistance was low.

On Tuesday, December 3rd, 1968, full-page ads appeared in The New York Times[37] and The Washington Post[38] announcing the interview. A large picture of Hugo appeared on the page under the caption, "Hugo L. Black, Senior Justice, U. S. Supreme Court, speaks his mind." The picture of Hugo was as striking as it was huge. Someone once called Hugo a "beautiful old man." The picture captured this quality in Hugo. The ad continued:

So much for Hugo's reason for the program. This statement in the press seemed to satisfy him.

All was set now except the plans for the party to be held on broadcast night at the Agronsky home. Martin suggested it would be nice to invite all the justices of the Court and their wives. Hugo thought this over carefully and decided against inviting any member of the Court. He felt some of the other justices might not approve of the interview, and he did not want to put them on the spot by inviting them to the party

"Most of them would come," he told Martin, "just to show their regard for me, but I don't want to put them under that kind of pressure."

Hugo and I sat in front of a big color television set when the program began. In trying to adjust it perfectly, someone accidentally pulled the electric plug. By the time it could be reconnected, my tennis scene had come and gone.

"I didn't get to see me," I wailed.

Hugo found this amusing, and then he tried to console me. "Mr. Benjamin has promised to send you the film of the program, and then we'll get to see you," he told me.

III

As soon as the broadcast was over, the reactions started pouring in, first by phone, then by wire. The next day all manner of mail began arriving at Hugo's office. Letters and cards and notes by the hundreds swarmed in from all over the country. Hugo was astonished.

"The response really has been a tremendous surprise to me from every section of the United States,"[39] Hugo wrote to his old stand-bys, Virginia and Clifford Durr. And three days after the showing, Hugo wrote to Mr. Benjamin, the producer: "At the present time we are flooded with mail and I am doing my best to keep up with it but it looks like it will be impossible. Many people are suggesting re-runs; many others are suggesting that it be run in the schools or at a time when the children could see it. At any rate, you created more excitement than I had anticipated."[40]

Hugo also inquired of Mr. Benjamin about our receiving a copy of the film. "My wife insists that I write you and tell you that she is anxious to get her film. She would not add the reason but I think it is because we missed the first few minutes of the show."[41]

I lived to regret wanting to see myself on television, however. Sometime later, when the film was being shown to White House Fellows at a dinner at the State Department, Hugo arranged to have my split-second tennis shot re-run about five times, back and forth, to the crowd's amusement and to my dismay Not only did I look fat, a cardinal sin in Hugo's book, but my tennis serve was in bad form. So much for my movie debut.

Hugo heard from old friends, including Clarence Dill, his fellow-freshman in the Senate back in 1927. Over forty years had passed and thousands of miles now separated them. Receiving Dill's note, and hundreds like it, pleased Hugo. Hugo loved people and the interview put him among the people again.

Hugo answered Dill: "I am very happy to have the report you gave me about its reception among the people. I had some doubts about giving the interview, but my communications have convinced me that it was a good thing for the Court and the country"[42]

Hugo's comment echoed a note he had from Potter Stewart the day after the broadcast. "Dear Hugo," Justice Stewart wrote, "I thought the television performance was just fine. You did a great deal of good for the Court, the Constitution, and for the Country Congratulations and thanks."[43] Obviously, Potter Stewart's reaction touched Hugo deeply

Bill Douglas got his return in the next day Justice Douglas was kind to Hugo, as one might expect, but he couldn't resist teasing him a bit: "Cathy and I saw your TV show last night and we thought it was excellent. Maybe you will make Cary Grant move over!"[44]

Other comments were just about what one would expect from friends. "You were magnificent,"[45] ""one wire reported. From Memphis, old friends told Hugo they thought he was remarkably at ease during the interview: "You may be smart but after all you are not a movie or television actor."[46] Another friend wrote: "I would say that Senator Dirksen will have to look to his laurels, or you will outstrip him as a great television personality"[47] This was too much good fun for Hugo to take quietly: "I'm afraid that Senator Dirksen is so far ahead of me that I can never hope to get within hollering distance of him as a TV personality"[48]

Dick Rives, a distinguished judge on the Fifth Circuit Court of Appeals and a long-time friend of Hugo, was more serious: "The interview will do good–lots of good. People will have some better conception of our Constitution. They will know that Justices are real human beings, men of great humanity Some may even be persuaded against rowdyism under the guise of free speech."[49] Hugo revered Dick Rives, and Hugo's response was serious, too. "I feel better to know that you thought the program was all right. I personally had grave doubts about it until letters, telegrams and other communications reached me saying that the interview was good for the Court and for the country I certainly hope it was."[50]

The law clerks wrote in, and there was love and teasing in their letters. Dan Meador, whose book Mr. Justice Black and His Books,[51] is a guide to Hugo's mind, wrote the Judge: "You have a good television personality, and we had the impression that you were right in the room talking to us. You also stated extremely well the essence of many of your important views."[52]

Bob Basseches, after congratulating Hugo "on the launching of your television career, added: "I know you will be troubled if I must, in all candor, advise you that you are not quite as pretty as Brigitte Bardot, with whom you were in direct competition."[53] It seems that NBC in its wisdom ran the French beauty against Hugo coast to coast, which put quite a dent in Hugo's Nielsen ratings. In New York City, for example, a mere nine percent of the audience chose to watch Hugo, whereas 44 percent preferred to ogle Miss Bardot. That's show business, as they say "For Black to beat Bardot in the attention game is hardly natural law,"[54] noted the Saturday Review. The NBC crowd had been promised a fifteen-second glimpse of Miss Bardot wearing nothing but a pair of trousers. As things turned out, NBC deleted the fleshy part of the program, undoubtedly disappointing the 44 percent who tuned in to Brigitte.[55]

Hugo reacted calmly to Bob's news about the ratings and wrote him: "Louis Oberdorfer, one of my former clerks, has already sent me a New York Times containing the comparative number who heard my television interview, in comparison with those who listened in on Brigitte Bar-dot. I am compelled to admit that she beat me–considerably."[56]

Other clerks wrote in and their letters warmed Hugo's heart. He loved his clerks. Next to his children they were his favorite students.

Army officers wrote, housewives wrote; lawyers, judges, and law students wrote; teachers from all over the country piled mail on Hugo's desk. "I was particularly and professionally pleased that you explained Adamson v. California and referred to the sequence of Fifth Amendment decisions which properly put strictures on the police. What you said convinced my students where I am sure I have not been able to get across the essential meaning of the Amendment as quickly or as succinctly."[57]–that from a law professor in Tucson, Arizona. From North Dakota came thanks for Hugo's explanation of such complex-sounding concepts as "due process," "obscenity, with all deliberate speed," and "freedom of assembly" The net result of his talk, Hugo was told, "was to clarify in my mind some of the intentions of the constitution-writers and to understand the job of the Supreme Court in interpreting the law."[58]

Some viewers were so impressed by Hugo's habit of carrying "that little book of the Constitution" in his pocket that they wanted it for their own. "To have a copy of the Constitution you have personally used would be a great inspiration,"[59] said one convert to the practice. Hugo instructed his secretary, Frances Lamb, to turn this request down: "He asked me to write you for him that he has received numerous letters from people asking that he give them his personal copy of the pocket-sized Constitution which he has been carrying for years. Under the circumstances he has not felt it fair to give it to anyone." [60]

Six days after the interview Hugo was swamped with mail. "I should judge that by this time I have somewhere between 500 and 1000 communications,"[61] Hugo told a friend. By January 8th the count had risen to 1500.[62]

"Your discussion on the United States Constitution and the Bill of Rights has made them revitalized in my mind and heart,"[63] one lawyer wrote Hugo. Another said, "I was proud to be a lawyer again."[64] I suppose these are only words to the average reader. They mean nothing unless you happen to be a lawyer. Anyone familiar with Hugo's Anastaplo[65] dissent knows how deeply he cared for lawyers. How these letters from the field pleased him.

Fan mail, of course, was the farthest thing from Hugo's mind when he agreed to do the interview. He had no idea how much mail he would have to answer; and he answered it all, in his own hand, or by dictation for Frances Lamb to type.

"I have been answering about 75 pieces of mail a day," Frances Lamb told a law clerk, "and still more to go. I am working Friday nights (last night until 1a.m.) today–Sat., and if I don't finish tonight, tomorrow. Meanwhile he is dictating some on the machine over the weekend. Now all I need is for the 5,000 people who are to get free copies of the pocket-sized Constitution to write in for autographs in it–and that'll do it!"[66]

Contrary to what some have suggested,[67] Hugo had no motives in agreeing to do the interview. He just plain got talked into it. "Even after I was persuaded against my will to give the television interview, there remained a doubt in my mind as to whether the wise choice had been made,"[68] Hugo wrote a housewife in Illinois. "Nice letters like yours have removed that doubt and I thank you for writing."[69] This woman, an attorney's wife, had asked for a list of books about Hugo because she wanted to learn more about him. "As an under-30 housewife with three small children, I know how easy it is to confine oneself to diapers, the very best detergent, and running noses. I hope I never get that way So your suggesting some titles would help me. My Mr. Justice Black project is no mere whim to be shelved and never studied."[70] Hugo answered her letter and recommended several books and articles for her to read.

Other comments were equally glowing. A director of the Corporation of Public Broadcasting wrote to Hugo saying that the interview "illustrates what I mean when I urge my fellow Board members to provide programming on the Constitution. I think it is important for people to understand the Court–why it is, what it is–and as a consequence, they ought to understand the actions of the Court better."[71]

From Carmichael, California, a stranger commented: "For me it was profound, enlightening, entertaining, and altogether the best TV program of the decade. You have certainly given me new insight and appreciation of the Court, its functions, and some of its more recent rulings which have certainly not been universally popular."[72]

Perhaps this man exaggerated a bit when he said that Hugo's hour was the best TV of the decade. But it is a fact that the producer of the program, Mr. Benjamin, was awarded an Emmy for "the best cultural documentary of the year." And the American Bar Association presented its Gavel Award for an "unprecedented and informative interview" that "served to acquaint the public with the basic values of our legal and judicial system."[73]

Hugo heard from people in Alabama, and their letters gave him special pleasure. Some Alabamians hated Hugo because he had voted to declare segregation unconstitutional. It was a curious paradox: people hating a man who loved people. Fourteen years after enforcing the plain meaning of the Fourteenth Amendment[74] ("And, of course, I knew what it was. I didn't need any changing times to convince me that that was a denial of equal protection of the law."), Hugo still suffered the slings and arrows of outrageous enmity But there were exceptions; A history professor who was born and educated in Tallassee, Alabama, wrote to thank Hugo "for being a spokesman for what I am sure is a great number of natives of Alabama. All too often, we all get branded as being backward segregationists."[75]

Hugo was proud of his Clay County heritage. He had his own vision of great Alabama and he remained loyal to it. He wrote back: "Among the hundreds of letters that have come to me about my television interview, I particularly appreciate yours, since you were born and reared in Alabama. I agree with you that we have many wonderful people in Alabama and that they do not deserve the censure which some people try to give all of Alabama."[76]

But in Birmingham things were different. My friend Mary Tortorici, Chief Deputy Clerk of the Federal Court in Birmingham, stayed up late to watch the interview, which had been scheduled for broadcast on a delayed basis, but when the time came all she got was football. "I nearly died when 11:30 came, and they showed another rehash of the Alabama-Auburn game," she wrote. "I had seen four re-hashes of it on Sunday, and had had enough of it. I was so mad that I called the station the next morning, and they told me they didn't get to tape it–that all the taping machines were in use when the interview came on."[77] Hugo, it seems, was not top billing with the local CBS affiliate in Birmingham.

IV

Of course, Hugo also received a handful of mail critical of the views he aired on the program, particularly his enthusiasm for the protections accorded the accused by the Bill of Rights. During the interview Hugo insisted that popular criticism of the Court ignored the Bill of Rights. The Constitution, said Hugo, must be enforced, "And of course, I don't see how anybody could deny that the Constitution says absolutely and in words that nobody can deny, in the Fifth Amendment, that 'no person shall be compelled in a criminal case to be a witness against himself.' And so, when they say the Court did it, that's just a little off. The Constitution did it."

Martin's next question repeated the charge that the Court had made it more difficult to combat crime. Hugo's answer, in plain English, taught the ordinary man an important lesson:

But these comments apparently meant nothing to one man who accused the Court of encouraging violence by its interpretations of the Constitution. Earl Warren alone was not to blame; every member of the Court was equally responsible and the entire Court should be impeached, wrote one critic. Hugo responded a week after the interview with a word of optimism: "Judging from the number of communications I have received from every part of the Nation in the past few days, I would say that you are in a minority in wanting to see all the members of the Supreme Court impeached. Maybe you will improve with time."[78]

An odd assortment of the usual hate mail arrived, some of it really quite grotesque with drawings of Hugo burning in hot hell attached. The public has no idea of the bizarre letters a Supreme Court justice receives, and the interview prompted a note from a religious figure of sorts, who told Hugo that he saw the demons of hell coming and going from his face during the program. All Hugo could say to this fellow was to suggest that "if you have a copy of the Bible in your place, you read the 13th Chapter of First Corinthians,"[79] which has Hugo's favorite passage in the Bible. Another letter of this sort was full of fury over the Court's desegregation ruling: nowhere in the Constitution, Hugo was told, is non-segregation of the races justified. That was only the opinion of nine foolish old men in Washington, and not the will of the great majority of Americans. Although Hugo loved people and rarely gave up on anybody, he had enough sense to note at the top of this particular letter: "No need to write him. He is hopeless." And on another confused blast Hugo noted in pencil, "Not intelligent enough to answer at all."

But refusals to answer mail critical of the program, even hate mail, were rare with Hugo. And his letters reinforce what is apparent from his opinions: Hugo Black was a man who lived by the First Amendment in his relations with others. And, as one might expect, he would often quote it to his correspondents: "I have your post card about the television interview I gave in connection with the Bill of Rights. The First Amendment to the Federal Constitution, which is generally considered the most important of all, reads as follows: [whereupon Hugo set it out word for word]. That Amendment has been made applicable to the States. I took an oath to support it as an Associate Justice, and that obligation is responsible for your disagreement with me."[80]

Hugo's views on pornography caused a flurry of mail to roll into the office. One viewer who apparently missed the distinction Hugo drew between conduct and speech complained bitterly that Hugo was in favor of prostitution. That was not true at all. Obscenity laws outlaw speech, not conduct, and in doing so they violate the First Amendment. I'd better let Hugo do the talking on this delicate point:

Many people found these views offensive, but Hugo didn't mind. People were free to think him foolish if they wanted to. That was their business. It was Hugo's business to interpret the First Amendment as he saw it, without any apologies to those who disagreed with him. But Hugo was wholly in favor of wide-open criticism of public officials, including himself.

One telegram from Memphis told Hugo he should retire. "You have lost all contact with those things that have made America great," Hugo wrote back: "Thanks for sending me the telegram you did today While it is not favorable to me personally, it does show that you have an interest on public affairs, which, of course, all people in the country should have."[82]

Another critic admonished Hugo: "Think what you are doing!"[83] Hugo penciled at the top of his letter: "Thanks for your letter. Maybe you could come nearer to accomplish your desire by starting a movement to repeal the First Amendment designed to provide a country without censors by guaranteeing freedom of religion, speech and press." Apparently Frances Lamb thought Hugo's comment too sharp. An annotation at the bottom of this letter, in Frances' handwriting, indicates that no such response was sent out.

One particular exchange carried back and forth four times and the dialogue in these letters reveals Hugo's faith in the First Amendment for all the world to see. In the first installment a paragraph of volcanic criticism concluded with the statement that Hugo had wasted his time on television. Hugo responded: "I judge from your letter of December 3rd that you are against most everything that goes on. This attitude you are permitted to take because in this great government of ours the First Amendment provides for freedom of speech and writing."[84] Hugo's willingness to listen to criticism prompted a favorable reply from this same correspondent who, to her credit, was more interested in dialogue than in Hugo's signature. Hugo's earlier letter came back with a note on it: "Thank you for your letter. At least you and I can disagree without being angry We are truly lucky to live in the greatest country on earth. May the Lord bless you."[85]

Chief Justice Warren Burger once paid a similar tribute to Hugo's capacity to disagree without becoming disagreeable.[86] Yet how nice to hear it live from Hixon, Tennessee.

Hugo's answer, his second to this same woman, is important because after a preliminary comment on human relations, Hugo set out his First Amendment faith in one brief sentence. Both of Hugo's comments are revealing.

First, Hugo on human relations: "There is, of course, no reason why people who happen to disagree with one another on some subject should develop any hard feelings about it."[87] That was pure Hugo.

Next, Hugo's First Amendment faith, laid out in one fleeting utterance to a new friend in Tennessee: "As a matter of fact," said Hugo, "who can know in the long run which opinion is absolutely right?"[88] That was pure Hugo too.

V

Some viewers, seeing a good lawyer in Hugo, wrote to him asking for legal advice on all manner of problems, from broken leases to wrongful death. One woman who had lost her case in Florida filed an informal petition for certiorari in a letter to Hugo. His answer is just what one would expect: "I am sorry that I am not free to give you any legal advice or information about your court case. The justices may consider cases only as they come before the Court through regular channels."[89]

One man wanted to know if he could sue the Associated Press for reporting the four-letter words that passed between protestors and the police during the 1968 rioting at the Democratic National Convention in Chicago. Wasn't it unlawful for the AP to publish this trash in the first place? And wasn't The Louisville Courier Journal equally culpable for copying it? Otherwise, said the correspondent, police tactics (Gestapo) would have to be used to force these publications to eliminate such filth. What's more, Hugo was told it would not take a lot of reading and research time for him to answer one simple question: "Is the (AP) within their rights to print whatever is written without regard to the rights of the public?" –that was all this fellow wanted to know.

Hugo's reply was short. It was also what one might expect from Hugo: "I regret that I cannot give any more information about 'obsenity' than the views that were expressed in that interview."[90]

VI

The newspaper columnists and editorials gave Hugo's interview high marks and almost all the commentary was favorable. Many papers reported that the ideas expressed in the interview had already been expressed in Hugo's opinions for the Court or in his dissents.[91] But for most Americans the interview was their first chance to see and hear Hugo stating his views. "Scarcely anyone reads what the Supreme Court justices actually say in their opinions,"[92] one columnist noted. And the papers were agreed that the projection of Hugo's personality and his views into innumerable American homes via TV served an invaluable educational purpose, particularly in light of the homely idiom Hugo used in expressing himself. "What came through most clearly of all," said The Washington Post's editorial, was Hugo's intense devotion to the Constitution, his pride in it as the charter of a great community, his abiding faith in and love for America."[93] The New York Times gave the interview a four-column, page one spread, complete with photograph,[94] and Variety heralded the interview as a model of TV journalism.[95]

Further north, in Boston, The Sunday Globe reported that Hugo "had lost none of his capacity for forthright outrage at violations of constitutional freedom and individual dignity . . . [the interview should be shown again and again. By any standard, it is a landmark in the field of journalism."[96]

In The New York Daily News Ted Lewis took note of Hugo's television competition the night of the interview. Lewis' "Capitol Stuff" column featured photographs of Hugo and his French rival, Brigitte Bardot. "What a contrast!" he exclaimed. In addition to the obvious differences, Mr. Lewis spotted subtler distinctions between the two shows: "Fortunately, what Justice Black said on the air is even more effective in print, while Bardot has to be in motion to be enjoyed and appreciated."[97]

Some reviewers saw a tendency in Hugo's comments to oversimplify the difficulty of constitutional interpretation. "It is not quite so simple,"[98] said The Washington Post. James Kilpatrick in his column in The Sunday Star thought Hugo's views "absolute hokum" to the extent they attributed to the Constitution, and not to the Court, the difficulties of convicting criminals. That was an absurd myth, according to Mr. Kilpatrick, who wanted to blame the judiciary, not the Constitution, for handcuffing the police."[99] Whether Hugo Black's or James Kilpatrick's views are more sound is obviously not for me to decide. I must leave that to the reader.

Robert Shayon's article in the Saturday Review spoke highly of the interview, but he saw a faint hue of anachronism in Hugo's image:

"Here was the glow of a great legal mind, expressing the noblest ideals of a free society; but there was a faint hue of anachronism in his mellow image, as if the nation that gave birth to the Bill of Rights and Hugo Black was slowly disappearing into the TV sunset. A great lethargy possesses us; the days of great debate in the Black style are passed."[100]

Perhaps Mr. Shayon was right. We are all obliged, however, to do what little we can to rekindle the flame.

Max Lerner's review was my favorite. "The Gentle Giant from Alabama" is what he called his piece. That pretty well sums up Hugo.

One paragraph of Max's column touched Hugo and me deeply: "Count this as my homage to Black. I watched him for an hour the other night on a CBS special–this gnarled, timeless and ageless man of 82, with a soft voice but with a spine in every word, with flashing, humorous eyes, with bony eloquent fingers that held tightly to a dog-eared copy of the U.S. Constitution as he spoke. When we say that our time has fallen on little men, and that most men are carbon copies of each other, we had better not forget the handful of men like Black–how many does an age have to possess?–who are copies of no one, but irreducible originals?"[101] Loving words from a good friend always.

VII

Six months after the interview was broadcast, Hugo wanted to know how many copies of the Constitution CBS had given away The final figure indicates a lively interest in the Constitution–at least in free copies of it. "We finally sent out over 128,000 copies of the Constitution, believe it or not,"[102] Mr. Benjamin reported. And the requests for free copies came mostly, according to Eric Sevareid, "from people who didn't know the Constitution was actually down on paper, who thought it was written in the skies or on a bronze tablet somewhere."[103]

CBS's bountiful distribution plan did little, however, to improve the standing of the Bill of Rights with the American people. Two years after Hugo's appearance on TV–a period which would strain any speaker's staying power with his audience, even Hugo's–a CBS NEWS poll ("Do we believe in the Bill of Rights?") showed a majority of Americans were willing to restrict some of the basic rights guaranteed by the Bill of Rights. This gave Mr. Benjamin the idea to invite Hugo to appear on CBS's 60 MINUTES program in April, 1970, when the survey results were scheduled for release. "We feel that the findings need a little interpretation as well as presentation of the raw figures."[104] But once was enough for Hugo. He had no desire for a repeat television appearance: "With reference to your suggestion as to whether I could participate in the program, the reception of my former television program was a great pleasure to me but I believe it would be wise not to repeat anything like it in the future."[105]

Hugo also declined an invitation to join Lawrence Spivak and company on television: "I appreciate the fact that you want me to appear on 'Meet the Press' and although I agree with you that the public has too little understanding of the Constitution or the Supreme Court, I do not think it would be wise for me to give a second interview in the near future."[106]

To Hugo's astonishment, one viewer asked whether quarterly interviews on the Constitution and the Court would be possible. "I am afraid it will not be possible for me to appear for quarterly interviews," Hugo answered, "but I am hopeful that CBS will follow up on this program with some more of them."[107]

VIII

Some people who missed the interview, and some who saw it, wrote in requesting a transcript of the interview. Hugo explained the need for a printed text in a letter to Mr. Benjamin the day after the broadcast: "We need a printed copy to answer questions that have been presented to us by people who seemed to miss a word or two for some reason or another, and we would like to send copies to those who ask for them."[108]

Legal scholars are like sponges: they absorb every word a Supreme Court justice utters, and Hugo's interview gave them plenty to think about. This was new material worth having in the file.

Professor William Harbaugh, for example, wanted to know exactly what Hugo said about John W. Davis as an appellate advocate. Harbaugh was then wrapped up in the final stages of his biography."[109] Unfortunately, he missed the interview and The New York Times did not print what Hugo said about Davis, in response to a request that he name the ablest lawyers who had appeared before him during his long tenure on the Court. Hugo's answer was an extraordinary combination of diplomacy and candor:

Hugo's comment on Bob Jackson caught one viewer's ear and he wrote in to applaud Hugo for it: "It was magnanimous of you to speak as you did of the late Judge Jackson. I know something about the controversy between Judge Jackson and yourself. . . . Mr. Jackson had been in Europe at the Nuremberg Trials and when he came back to this country he said some things about you that should not have been said and I am sure he regretted it."[110] Hugo's answer shows that he was not one to hold a grudge: "What I said about Bob Jackson was correct in every respect. He was one of the greatest advocates that ever appeared before our Court. I recall very well what happened when he was coming back from Europe but that episode, I hope, was completely forgotten by him before his death. At any rate, we never discussed it after he returned. . . ."[111]

Another student of the Constitution accused Hugo of trying to fool the public by misquoting–of all things–the First Amendment. When Hugo read it during the interview he recited the Establishment Clause, "Congress shall make no law respecting an establishment of religion," and then he interrupted himself, saying–"that's the First Amendment." Not so at all, complained this critic, who censured Hugo for quoting only a part of the Amendment and then lectured him on how to parse compound sentences correctly. Hugo, who cared about good grammar, was not impressed: "I presume that most people, unlike you, will not think it is a misstatement to quote only a part of a constitutional amendment. As a matter of fact, you were not fooled so why should anybody else be? While your views do not agree with mine, I am glad to have your letter."[112]

Hugo did not hesitate to say, however, that most Americans do not understand the Constitution, either in part or read as a whole. Nor did he flinch from telling the world that good letters are hard to come by these days:

Hugo's comment about getting letters full of bad grammar caused a graduate assistant in history at the University of Oklahoma to write:

"May I have the privilege of writing a letter that is different from the type you mention in the interview?"[113] The letter was quite complimentary and must have given Hugo second thoughts about discussing good grammar on national television. Another letter melted his heart: "Please forgive my grammatical errors in this letter. I have little formal education but why should that stop an expression of love."[114]

IX

Fifty years ago when they unveiled Holmes' portrait at Harvard, Learned Hand was the speaker.[115] In his address Hand quoted Carlyle as saying he would give more for a single picture of a man, whatever it was, than for all the books that might be written of him.[116] Judge Hand went on to say: "We are fortunate in having a painting which justifies that opinion: it will in part at least preserve the fleeting essence for others who have not had a direct acquaintance with the racy speech, the light and shade, the simplicity, the tenderness, the reserve, the dignity, that must some day perish and leave so much the losers such of us who remain. Books and speeches cannot hold these, and we are much the debtors to Mr. Hopkinson [the painter of Holmes' portrait] that his brush has been cunning enough to catch so large a part. We piously commend his work to those who shall come after us, whom time will rob of the richness of our possession."[117]

Learned Hand had a way with words, but he knew their limitations. What he said at the unveiling of Holmes' portrait puts into words far better than mine the thoughts that come to me each time I see Hugo on the screen. I am much the debtor to Martin Agronsky, to Eric Sevareid, and to other co-conspirators, "named and unnamed," who were cunning enough to convince Hugo to do his film.

Hugo Black was a good teacher and good teachers are worth sharing. It is important, I think, that Hugo Black remain a mentor, not merely a memory Hugo's film does that.[118] By it we share this man, the expression of his views, the depth of his convictions, and the warmth of his smile with others. By it we keep our memories, our reverence, and our love alive and hand them on to new generations all too ready to forget.