Vol. 2 No. 5 (May, 1992) pp. 72-74
OF POWER AND RIGHT: HUGO BLACK, WILLIAM O. DOUGLAS, AND AMERICA'S CONSTITUTIONAL REVOLUTION by Howard Ball and Phillip J. Cooper. New York: Oxford University Press, 1992. 390 pp. Cloth $29.95
Reviewed by John E. Finn, Department of Government, Wesleyan University.
OF POWER AND RIGHT is a "dual biography" of Justices Hugo Black and William O. Douglas. One might wonder whether such a book is necessary. After all, we hardly lack material on Black. In addition to Black's own works, we possess studies by Tinsley Yarbrough (1988), Mark Silverstein (1984), James Magee (1980), and Gerald Dunne (1977). The literature on Douglas is no less voluminous. Douglas wrote three autobiographies, and there are, among others, fine studies by James Simon (1980) and Vern Coun- tryman (1974). Nor do we lack histories of the Courts on which they served.
So why read OF POWER AND RIGHT? Ball and Cooper tell us how two markedly different men came to "share a partnership and a contest." In recounting the story, they promise us a unique perspective on the Supreme Court as an institution. OF POWER AND RIGHT also promises us an education in the fundamental conflict of American constitutional life, the tension between a democratic conception of political power and the protection of individual liberty.
In many ways, OF POWER AND RIGHT is a success. Its discus- sion of the relationship between Black and Douglas is discerning. Ball and Cooper capture the essential differences between the two men, differences that traced their origins, as Ball and Cooper so vividly demonstrate, to their personal and professional lives before they were appointed to the Court. The authors deserve special praise for their decision to include a chapter on the New Deal backgrounds of Black and Douglas, in which they detail Hugo- to-Hell Black's stormy career in the Senate and Douglas's contro- versial years at the Securities and Exchange Commission. Their political backgrounds, the authors argue, contributed to Black and Douglas's harsh criticism of the Court before Roosevelt put their names in nomination.
The book also realizes its attempt to tell us something of the Court as institution. Drawing extensively on the private papers of several justices, Ball and Cooper chronicle the inter- nal dynamics of the post-New Deal Court as it struggled to find its place in America's constitutional revolution. Ball and Cooper picture a Court sensitive to law, politics, and sometimes personality. Their treatment of the very public dispute between Justices Black and Jackson, for example, is measured and fair, as is their discussion of the antagonism between Justices Douglas and Frankfurter. The book is especially moving when it chroni- cles Black's departure from the Court and Douglas's reaction to the loss of his colleague and friend.
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Unfortunately, the book is less successful in its other purpose: to tell us something about the constitutional tension between democratic power and individual right. Scattered summa- ries of Black's and Douglas's constitutional philosophies appear throughout the book; they feature most prominently in the chap- ters that address specific areas of constitutional law. In general, however, these treatments are far too brief and mislead- ingly simple. The problem is partly reflected in Ball and Cooper's decision to associate Black with power, and Douglas with right.
Unadorned, constitutional positivism is, as Ball and Cooper suggest, a theory of the constitutional order that emphasizes the power of the people to govern. Similarly, a commitment to the priority of individual liberty, is, in its simplest forms, a theory of the constitutional order that emphasizes not power but right. As held by Black and Douglas, however, these philosophies are profoundly complex. Theories of constitutional interpreta- tion premised upon power or right, for example, necessarily imply somewhat different attitudes toward the proper use of judicial power and somewhat different approaches to constitutional inter- pretation.
Throughout much of their career together, Black and Douglas could work together despite differences in their understanding of constitutional government, for only occasionally did they lead to disparate decisions. In the last decade of their time together, however, the Court began to address issues, notably concerning privacy and equality, in which implicit differences became manifest. Black and Douglas increasingly found themselves on separate sides in important cases, such as Griswold v. Connecti- cut (1965).
Ball and Cooper tell us about the parting and that it sprang, ultimately, from differences in constitutional philoso- phy. But because their discussions of constitutional philosophy largely proceed piecemeal, only readers already familiar with the intricacies of constitutional interpretation are likely to appreciate fully how theories of power and right figured both in contests over constitutional interpretation and over the proper extent of federal judicial power. The complexities of their constitutional theories, then, no less than Black and Douglas's political experiences in the Senate and the SEC, warrant a separate chapter early in the book.
Notwithstanding this omission, OF POWER AND RIGHT is an impressive study of a friendship that endured three decades and conquered formidable differences in style, temperament, and, finally, constitutional philosophy. Comprehensive, engaging, and sometimes moving, this is a book all students of the Court should read.
Countryman, Vern. THE JUDICIAL RECORD OF JUSTICE WILLIAM O. DOUGLAS. Cambridge, Mass.: Harvard University Press, 1974.
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Dunne, Gerald T. HUGO BLACK AND THE JUDICIAL REVOLUTION. New York: Simon and Schuster, 1977.
Magee, James. MR. JUSTICE BLACK: ABSOLUTISM ON THE COURT. Char- lottesville, Va.: University Press of Virginia, 1980.
Silverstein, Mark. CONSTITUTIONAL FAITHS: FELIX FRANKFURTER, HUGO BLACK, AND THE PROCESS OF JUDICIAL DECISION MAKING. New York: Cornell University Press, 1984.
Simon, James. INDEPENDENT JOURNEY: THE LIFE OF WILLIAM O. DOUG- LAS. New York: Harper and Row, 1980.
Yarbrough, Tinsley. MR. JUSTICE BLACK AND HIS CRITICS. Durham, N.C.: Duke University Press, 1988.