Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P6 pps

vBIRD, ROSE ELIZABETH Rose Elizabeth Bird served as the first woman on the California Supreme Court, becoming the chief justice of one of the most prominent appellate courts in the Unite

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Binney wrote several biographies and case reports, including Leaders of the Old Bar of Philadelphia (1859) He died August 12, 1875,

in Philadelphia

vBIRD, ROSE ELIZABETH Rose Elizabeth Bird served as the first woman

on the California Supreme Court, becoming the chief justice of one of the most prominent appellate courts in the United States Bird became

a controversial figure during the 1980s, as her adamant opposition to CAPITAL PUNISHMENTdrew fire from political conservatives In 1986 these views led voters to remove her from office In her nine years on the court, however, Bird led a liberal majority that strengthened environmental laws, consumer rights, and women’s rights

Bird was born on November 2, 1936, in Tucson, Arizona She spent her childhood in Arizona and New York, where she graduated from Long Island University in 1958 She attended graduate school in political science at the University of California at Berkeley in 1960 but switched her career path to law when she entered Berkeley’s Boalt Hall School of Law

in 1962 After graduation in 1965, Bird was admitted to thePRACTICE OF LAWin California

Following graduation, Bird served a one-year term as a law clerk for the chief justice of the Nevada Supreme Court In 1966 she joined the Santa Clara County, California, public defenders office Bird remained in the public defenders office until 1974, serving successively as deputy

public defender of the appellate division As head

of the appellate division, Bird oversaw all public defender criminal appeals to the California Courts of Appeal and the California Supreme

Court In addition to these duties, Bird served as

an adjunct professor of law at Stanford University Law School from 1972 to 1974

Bird’s eventual rise to the California Supreme Court began when she became the chauffeur during Democrat Jerry Brown’s campaign for the governorship in 1974 Following his election, Brown appointed Bird to his cabinet as secretary

of agriculture She spent most of her time in that office working to settle a series of ongoing disputes between growers and farm unions Moreover, she drafted reforms to the state’s

In 1977, after twenty-two months in the cabinet, Governor Brown appointed Bird, then age 40, as chief justice of the California Supreme Court She gained immediate national promi-nence because she was the first woman to serve

on the state’s high court As a member of a liberal majority, Bird established herself as a brilliant and combative judge During her tenure, the court issued decisions that promoted environmental regulation and CIVIL RIGHTS for racial minorities and women Other decisions gave tenants more rights and poor women the right to have a state-fundedABORTION

Coming from the public defenders office, the large corporate law firms and influential bar associations viewed her as an outsider Bird signaled her disdain for the“old boys” system of privilege by selling the chief justice’s Cadillac and by staying at inexpensive motels rather than

at expensive hotels while on state business She also exercised strong leadership over the administration of the courts Bird promoted racial and gender diversity on the bench During her tenure, more than 1,000 judges were appointed who were either persons of color or female In

❖

1775–1783

American

Revolution

1780 Born,

Philadelphia, Pa.

1800 Admitted to Philadelphia bar

1806 Elected to Pennsylvania legislature

1816–19 Served on the Philadelphia Select Council

1810–16 Served on the Philadelphia Common Council

1808 Became director of the First Bank of the United States

1833–35 Served

in the U.S.

House of Representatives

1844 Won

the Girard

Trust case

1859 Leaders of

the Old Bar of Philadelphia

published

1861–65 U.S Civil War

1875 Died, Philadelphia, Pa.

❖

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addition, she led the court system to change its

rules to allow cameras in the courtroom Finally,

she initiated a study of gender bias in the courts, a

groundbreaking effort that was adopted by many

other state courts during the 1980s and 1990s

It was Bird’s opposition to the death

penalty, however, that had the greatest effect

on her judicial career California reinstated the

death penalty in 1977 over the veto of Governor

Brown Thus, Bird took the bench at the same

time that death penalty appeals would return to

the state supreme court Although Bird never

discussed her personal views while on the court,

she voted to overturn all 64 death sentences

under her consideration

By the mid-1980s, conservative political

leaders began attacking Bird and members of

the liberal majority who regularly voted against

the death sentence In 1986 Republican

Gover-nor George Deukmejian, along with local

prosecutors, led a hard-hitting campaign to

remove Bird and fellow justices Cruz Reynoso

and Joseph Grodin from the court They

became the first judges in state history to be

removed from office in a retention election

A retention election allows citizens to vote to

retain or oust the judge in which there are no

opposing candidates Governor Deukmejian then

appointed three justices to fill the vacancies

Following her defeat, Bird dropped from the

public scene She volunteered at a Palo Alto

let her bar registration dues lapse She also

worked at a local food bank, taught for a short

time in Australia at the University of Sydney,

and lectured occasionally around the country

She died on December 4, 1999, in Palo Alto from complications related to breast cancer

FURTHER READINGS Beck, Susan 1998 “Justice on the Run.” American Lawyer (September) 76.

Cooper, Claire 2000 “Rose Bird: The Last Interview.”

California Lawyer 20 (February).

Purdum, Todd S “Rose Bird, Once California’s Chief Justice,

Is Dead at 63 ” The New York Times (November 6, 1999).

BIRTH CONTROL Birth control is a measure or measures under-taken to control the number of children born by preventing conception and reproduction

Rose Bird.

AP IMAGES

❖

1936 Born, Tucson, Ariz.

1939–45 World War II

1961–73 Vietnam War

1965 Graduated from Boalt Hall School of Law, University of California, Berkeley

1966–74 Served as first woman deputy public defender in Santa Clara County, Cal 1972–74

Taught at Stanford Law School

◆

1975 Appointed secretary of agriculture, first woman cabinet member in California state history

1977–87 Served

as first woman chief justice of the California Supreme Court and chair

of Judicial Council

of California

◆

1986 Ousted from court, along with two colleagues, in historic retention election; left court in January 1987

◆

1991 Became full-time volunteer in East Palo Alto Community Law Clinic

1997 Received Conscience Award from American Civil Liberties Union of Southern California

◆

1999 Died, Stanford, Cal.

◆

2000 California Public Defenders Association inaugurated the Rose Elizabeth Bird Award

1987 Established the Committee on Gender Bias in the Courts

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In the 1800s, temperance unions and anti-vice societies headed efforts to prohibit birth control in the United States Anthony Com-stock, the secretary of the Society for the Suppression of Vice, advocated a highly influ-ential law passed by Congress in 1873 It was titled the Act for the Suppression of Trade in, and Circulation of Obscene Literature and Articles of Immoral Use, but known popularly

as the Comstock Law or Comstock Act (18 U.S

C.A § 1416-62 [1964]; 19 U.S.C.A § 1305 [1964]) The Comstock Act prohibited the use of the mail system to transmit obscene materials or articles addressing or for use in the prevention of conception, including infor-mation on birth control methods or birth

control devices as well as birth control devices themselves

Soon after the federal government passed the Comstock Act, more than half of the states passed similar laws All but two of the remaining states already had laws banning the sale, dis-tribution, or advertising of contraceptives Con-necticut had a law that prohibited even the use

of contraceptives; it was passed with little or

no consideration for its enforceability

Despite popular opposition, birth control had its advocates, includingMARGARET SANGER In 1916 Sanger opened in New York City the first birth control clinic in the United States For doing so, she and her sister Ethel Byrne, who worked with her, were prosecuted under the state’s version of the Comstock law (People v Byrne, 99 Misc 1, 163 N.Y.S 682[1917]; People v Sanger, 179 A.D 939,

166 N.Y.S 1107[1917]) Both were convicted and sentenced to thirty days in a workhouse

After serving her sentence, Sanger continued

to attack the Comstock Act She established the National Committee for Federal Legislation for Birth Control, headquartered in Washington, D.C., and proposed the doctor’s bill This bill advocated change in the government’s policy toward birth control, citing the numerous instances in which women had died owing to illegal abortions and unwanted pregnancies The bill was defeated, due, in part, to opposition from the Catholic Church and other religious groups But when the issue of Sanger’s sending birth control devices through the mail to a doctor was pressed in United States v One Package (13 F Supp 334[S.D.N.Y 1936]), the court ruled that the Comstock Act was not concerned with preventing distribution of items that might save the life or promote the well-being of a doctor’s patients Sanger had sought to challenge the Comstock Act by breaking it and sending contraception in the mail Her efforts were victorious and the exception was made The doctor to whom Sanger had sent the device was granted its possession

Sanger furthered her role in reforming attitudes toward birth control by founding the Planned Parenthood Federation of America in

1942 Planned Parenthood merged previously existing birth control federations and promoted

a range of birth control options In the 1950s, Sanger supported the work of Dr Gregory Pincus, whose research eventually produced the revolutionary birth control pill

The birth control pill

is one of the most

widely used forms of

birth control In the

1950s, birth control

advocate Margaret

Sanger raised

$150,000 to pay for

research into the

development of the

birth control pill by

Dr Gregory Pincus.

AP IMAGES

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CONTRACEPTIVE USE BY WOMEN OF CHILDBEARING AGE, 15 TO 44 YEARS OLD, IN 2002

SOURCE: Centers for Disease Control and Prevention, National Center for Health Statistics, Vital and Health Statistics,

series 23, no 25, December 2005.

a Numbers may not add up to 100 due to rounding.

b Includes sterilizations performed on women for contraceptive or medical reasons, as well as sterilizations performed on husbands

or partners.

c Includes IUD, diaphragm, withdrawal, and other methods.

d Includes women who have never had intercourse.

All women age 15–44 a

Periodic abstinence (includes natural family planning) 0.9%

Implant, patch, or injectable 4.1%

Condom 11.1%

Oral contraceptive 19.0%

Other nonsurgical contraceptives c 4.6%

Surgically sterile b

22.4%

Not using contraceptives d

38.1%

Other nonsurgical contraceptives c 3.3%

Age 40–44 a

Condom 8.0%

Oral contraceptive 7.6%

Surgically sterile b

47.4%

Not using contraceptives d

31.0%

Age 15–19 a

Other nonsurgical contraceptivesc 1.5%

Condom 8.5%

Surgically sterile b 0.0%

Oral contraceptive 16.7% Not using

contraceptivesd 68.5%

Birth Control

Age 20–24 a

Other nonsurgical contraceptivesc 4.5%

Condom 14.0%

Oral contraceptive 31.8%

Surgically sterile b 2.7%

Not using contraceptivesd 39.4%

ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,

A PART OF CENGAGE LEARNING.

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By the 1960s, partly as a result of Sanger’s efforts, popular and legal attitudes toward birth control began to change The case of Griswold v

Connecticut (381 U.S 479, 85 S Ct 1678, 14 L

Ed 2d 510[1965]), loosened the restrictions of the Comstock Act When the Planned Parent-hood League of Connecticut opened in 1961, its executive director, Estelle Griswold, faced charges of violating Connecticut’s ban on the use of contraceptives (Conn Gen Stat Ann §§

53-32, 54-196[1958])

A divided Supreme Court overturned Griswold’s conviction with a ground-breaking opinion that established a constitutional right

to marital privacy The Court threw out the underlying Connecticut statute, which prohib-ited both using contraception and assisting or counseling others in its use The majority opinion, authored by JusticeWILLIAM O.DOUGLAS, looked briefly at a series of prior cases in which the Court had found rights not specifically enumerated in the Constitution—for example, the right of freedom of association, which the Court has said is protected by the FIRST

there (NAACP v Alabama, 357 U.S 449, 78 S

Ct 1163, 2 L Ed 2d 1488 [1958]) Douglas concluded that various guarantees contained in the Bill of Rights’ Amendments One, Three, Four, Five, Nine, along with Amendment Fourteen, create “zones of privacy,” which include a right of marital privacy The Connecti-cut statute, which could allow police officers to search a marital bedroom for evidence of contraception, was held unconstitutional; the government did not have a right to make such intrusions into the marital relationship

The other branches of the government followed the Court’s lead President LYNDON B

planning services in 1966, and the federal govern-ment began to subsidize birth control services for low-income families In 1970 PresidentRICHARD M

Population Research Act (42 U.S.C.A § 201

et seq.) This act supported activities related to population research and family planning

More and more, the Comstock Act came to

be seen as part of a former era, until, in 1971, the essential components of it were repealed

But this repeal was not necessarily followed in all the states In the 1972 case of Eisenstad v

Baird (405 U.S 438, 92 S Ct 1029, 31 L Ed 2d

349), the Court struck down a Massachusetts law still on the books that allowed distribution

of contraceptives to married couples only The Court held that the Massachusetts law denied single personsEQUAL PROTECTION, in violation of

In the 1977 case of Carey v Population Services International (431 U.S 678, 97 S Ct

2010, 52 L Ed 2d 675), the Supreme Court continued to expand constitutional protections

in the area of birth control The Court imposed a strict standard of review for a New York law that

it labeled “defective.” The law had prohibited anyone but physicians from distributing contra-ceptives to minors under sixteen years of age The law had also prohibited anyone but licensed pharmacists from distributing contraceptives to persons over sixteen Carey allowed makers of contraceptives more freedom to distribute and sell their products to teens

Throughout the 1990s, cases were brought

in a number of jurisdictions in which parents sought to prohibit the distribution of condoms and other forms of birth control in schools to unemancipated minor students without the consent of a parent or guardian Although some jurisdictions held that such birth control distribution programs violated the parents’ due process rights, other jurisdictions upheld the privacy rights of such minors and found the programs to be constitutional

More controversy arose after women gained access to RU-486, the so-called morning-after pill and later generations of emergency contracep-tives, which are high-dosage birth control pills designed to be taken shortly after unprotected intercourse has taken place Emergency contra-ception continues to be opposed by antiabortion groups on the ground that it is another form of

the sale of the morning after pill without a prescription to women 18 and older In 2009, the FDA approved the sale of the pill without a prescription to 17-year old women as well Conservative gains in state legislatures from

2000 to 2006 strengthened the position of groups opposing abortion and reproductive rights In addition to continuing to battle for the right to require parental consent for contraceptive ser-vices to minors both in schools and community health clinics, a number of conservative groups supported abstinence-only sexuality education classes in schools While some proponents

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wanted to make such classes optional and were

willing to have them taught alongside traditional

courses that discuss various methods of birth

control, other adherents sought to have these

classes taught in place of the traditional courses

With the election ofBARACK OBAMAin 2008 and the

subsequent congressional discussion of

health-care reform, the debate continued over abortion

and the federal role in funding medical insurance

that may or may not include covering the cost

of having an abortion

FURTHER READINGS

Bacigal, Ronald J 1990 The Limits of Litigation—The

Dalkon Shield Controversy Durham, N.C.: Carolina

Academic Press.

Hoff-Wilson, Joan 1991 Gender and Injustice: A Legal

History of U.S Women New York: New York Univ.

Press.

McCann, Carole R 1994 Birth Control Politics in the United

States, 1916–1945 Ithaca: Cornell Univ Press.

McLaren, Angus 1990 A History of Contraception from

Antiquity to the Present Cambridge, Mass.: Blackwell.

plannedparenthood.org (accessed November 23, 2009).

Solinger, Rickie 2000 Wake Up Little Susie: Single Pregnancy

and Race before Roe v Wade New York: Routledge.

CROSS REFERENCES

Family Law; Griswold v Connecticut (Appendix, Primary

Document); Parent and Child; Privacy; Reproduction;

Schools and School Districts

vBISSELL, WILSON SHANNON

Wilson Shannon Bissell was born December 31,

1847, in New London, New York He graduated

from Yale in 1869 and received a doctor of laws

degree in 1893 In 1872 he established a legal

practice with Lyman K Bass and in 1873 Grover

Cleveland joined the firm, forming Bass,

Cleve-land and Bissell

In 1888 Bissell acted as a presidential elector and in 1890, served on a commission to amend the judicial articles of the New York Constitu-tion Grover Cleveland, as PRESIDENT OF THE

partner to serve as U.S postmaster general, a post Bissell held until 1895

Extending his career to the field of educa-tion, Bissell became chancellor of the University

of Buffalo in 1902 He died October 6, 1903,

in Buffalo

BLACK CODES

A body of laws, statutes, and rules enacted by southern states immediately after the Civil War to regain control over the freed slaves, maintain white supremacy, and ensure the continued supply

of cheap labor

The Union’s victory over the South in the

Constitu-tion formalized this result in U.S law, abolish-ing slavery throughout the country and every territory subject to its jurisdiction

For the next several months, southern states sought a way to restore for the white majority what the Civil War and the Thirteenth Amend-ment had tried to deny them: supremacy, control, and economic power over the fate of African Americans Under slavery, whites had disciplined the blacks largely outside the law, through extralegal whippings administered by slave owners and their overseers After the slaves were emancipated, panicky whites feared that blacks would seek revenge against them for their harsh and inhumane treatment on the southern plantations Former slave owners feared for themselves, their families, and their property

❖

1847 Born, New London, N.Y.

1861–65 U.S.

Civil War

1873 Bass, Cleveland, and Bissell formed

1885–89 Grover Cleveland's first term as U.S president

1888 Served as presidential elector

1890 Served on commission to amend the judicial articles of the New York Constitution

1903 Died, Buffalo, N.Y.

1902 Became chancellor of the University of Buffalo

1893–97 Grover Cleveland's second (nonconsecutive) term as president

1893–95 Served

as U.S.

postmaster general

1850

◆

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Whereas some white southerners thought that African-Americans were best controlled through vigilantism, Mississippi whites began passing laws to take away the former slaves’ new found freedom The first such law was enacted

on November 22, 1865 It directed civil officers

to hire orphaned African Americans and forbade the orphans to leave their place of employment for any reason Orphans were typically compensated with a free place to live, free meals, and some type of nominal wage

Other white employers were prohibited from offering any enticement to blacks “employed”

by someone else

The Mississippi legislature next passed a

“neglected their calling or employment or misspent what they earned.” Another Missis-sippi law required African Americans to carry with them written evidence of their present employment at all times, a practice that was hauntingly reminiscent of the old pass system under slavery The final piece to the puzzle came when Mississippi established a system of special county courts to punish blacks charged with violating one of the new state employment laws The law imposed draconian punishments, including “corporal chastisement” for blacks who refused to work or otherwise tried to frustrate the system African Americans who committed real crimes, such as stealing, could

be hung by their thumbs

Widely considered to be the first set of Black Codes passed in the south after the Civil War, these Mississippi laws represented a concerted effort by white lawmakers to restore the master-slave relationship under a new name Within

a few months after Mississippi passed its first such law, Alabama, Georgia, Louisiana, Florida, Tennessee, Virginia, and North Carolina fol-lowed suit by enacting similar laws of their own

Congress quickly responded to the Black Codes by passing theCIVIL RIGHTS Act of 1866, which made it illegal to discriminate against blacks by assigning them an inferior legal and economic status Two years later the states ratified the FOURTEENTH AMENDMENT, which guaranteed “equal protection of the laws” to the residents of every state

But the southern states were not deterred

They soon passed a new set of laws that permitted local officials to informally discrimi-nate against blacks, without specific statutory

authority The thrust-and-parry exchanges be-tween Congress and the southern states contin-ued throughout the period RECONSTRUCTION

(1865-77) and through the first half of the twentieth century

FURTHER READINGS Birnbaum, Jonathan, and Clarence Taylor, eds 2000 Civil Rights since 1787 New York: NYU Press.

Nullified the Emancipation Proclamation ” The Los Angeles Daily Journal 97.

Litwack, Leon F 1979 Been in the Storm So Long New York: Vintage.

Pulliam, Ted 2001 “The Dark Days of Black Codes.” Legal Times 24.

Wilson, Theodore B 1965 The Black Codes of the South Birmingham, AL: Univ of Alabama Press.

CROSS REFERENCES Civil Rights Acts; Civil Rights Cases; Civil Rights Move-ment; Corporal PunishMove-ment; Fourteenth AmendMove-ment; Jim Crow Laws; Reconstruction; Segregation; Thirteenth Amendment.

vBLACK, HUGO LAFAYETTE Hugo LaFayette Black was an associate justice on the U.S Supreme Court for nearly 34 years, serving one of the longest and most influential terms in the history of the Court

Black was born February 27, 1886, in Harlan, Alabama, the eighth child of a store-keeper and farmer He was raised in rural Alabama and attended local schools At the age

of seventeen, Black entered Birmingham Medi-cal College He decided that he was more suited

to the study of law, however, and left the college after one year to attend the University of Alabama Law School, where he received his bachelor of laws degree in 1906 In the same year, Black was admitted to the Alabama bar

He practiced briefly in Ashland, Alabama, near his childhood home He then moved to Birmingham, where he quickly developed a successful practice in tort, labor, and contract law In 1911 he was appointed a judge on the Birmingham police Court, but he resigned eighteen months later to return to private practice In 1914 Black was elected county prosecutor for Jefferson County, Alabama, and gained local prominence for his investigation of brutal police tactics used to question suspects

at the county jail In 1917 Black resigned his position as prosecutor and enlisted in the Army

He remained in the United States and served as

a captain of the artillery for a year Then he

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resumed his private practice in Birmingham,

where he frequently represented local workers

attorney for the local chapter of the United

Mine Workers In 1921 he married Josephine

Foster, with whom he had three children

In 1923 Black joined the Birmingham

chapter of the KU KLUX KLAN (KKK) He

remained a member for two years He

com-mented later that, at the time, he believed

joining the group could further his political and

professional career

In 1926 Black, a Democrat, won a seat in the

U.S Senate, overcoming four other Democrats

in the race Black served in the Senate for nearly

ten years and gained prominence as a tenacious

and sometimes relentless investigator into the

activities of Washington, D.C lobbyists for

supporter of President Franklin D Roosevelt’s

organized labor, Black helped secure passage of

§ 201 et seq.), which established aMINIMUM WAGE

and a forty-hour workweek for enterprises in

interstate commerce

In August 1937 Black became Roosevelt’s

first appointee to the U.S Supreme Court,

nominated to replace retiring justice WILLIS VAN

with some opposition Some critics cited his

relative lack of judicial experience; others

expressed concern about his “judicial

tempera-ment,” given the aggressive and even abrasive

manner that he was said to display when

interrogating witnesses while a senator Black

was nevertheless confirmed in October 1937, by

a vote of 63–16 Shortly afterward came

confirmation of rumors that had been circulat-ing throughout Washcirculat-ington, D.C., about Black’s KKK ties in the mid-1920s The controversy died quickly after Black spoke about the matter

in a radio address He admitted that he had once been a member but maintained that he had resigned many years earlier and had disavowed any further association with the organization

Throughout his long career on the Court, Black wrote a number of landmark decisions concerning CIVIL RIGHTS, free speech, and other important constitutional issues In Chambers v

Florida, 309 U.S 227, 60 S Ct 472, 84 L Ed

716 (1940), he wrote the majority opinion

Hugo L Black LIBRARY OF CONGRESS

1886 Born, Harlan, Ala.

1914 Elected public prosecutor for Jefferson Co (Alabama)

1911 Became part-time judge on the Birmingham Police

1914–18 World War I

1923–25 Member of

Ku Klux Klan

1926 Elected

to U.S.

Senate

1937 Nominated

to U.S.

Supreme Court by President Roosevelt

1939–45 World War II

1944 Wrote

Korematsu v.

United States

opinion

1950–53 Korean War

1960 Wrote

Boynton v.

Virginia

opinion

1962 Wrote

Engel v.

Vitale

opinion

1971 Retired from Supreme Court; died Bethesda, Md.

1961–73 Vietnam War

1900

❖

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overturning the death sentences of several blacks who had been coerced, through many hours of police interrogation, into confessing to

early in Black’s tenure on the Court and was the first major civil rights decision he wrote, did much to alleviate the fears of civil libertarians about his earlier KKK involvement In another civil rights case, Boynton v Virginia, 364 U.S

454, 81 S Ct 182, 5 L Ed 2d 206 (1960), Black wrote the majority opinion holding that racial segregation in facilities for travelers violated the

et seq.)

Black had represented many labor organiza-tions while a practicing attorney, and he continued his strong pro-labor stance through-out his career on the Court In NATIONAL LABOR

309 U.S 206, 60 S Ct 493, 84 L Ed 704 (1940), which involved a dispute over unfair labor practices, Black wrote for the majority that the court of appeals could not substitute its judgment for that of the National Labor Relations Board In his dissent in United Public Workers v Mitchell, 330 U.S 75, 67 S Ct 556,

91 L Ed 754 (1947), he opposed restrictions that prohibited federal government workers from participating in political campaigns In

YOUNGSTOWN SHEET&TUBE CO.V.SAWYER, 343 U.S

579, 72 S Ct 863, 96 L Ed 1153 (1952), the Court, with Black writing the majority opinion, held that PresidentHARRY S.TRUMANdid not have the authority to seize most of the United States’

steel mills to avert a threatened strike

Black strongly believed that the Due Process Clause of the FOURTEENTH AMENDMENT to the Constitution—which provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens

of the United States”—means that the first eight amendments of the BILL OF RIGHTS must be applied to the states as well as to the federal government Eventually, a majority of the Court agreed with him In GIDEON V.WAINWRIGHT, 372 U.S 335, 83 S Ct 792, 9 L Ed 2d 799 (1963), Black wrote for the majority that states must provide defense counsel to indigent defendants accused of a felony, at any“critical stage” of the criminal proceedings In Pointer v Texas, 380 U.S

400, 85 S Ct 1065, 13 L Ed 2d 923 (1965), in another majority opinion, Black wrote that the

witnesses extends to defendants in state cases

Black always carried a copy of the Constitu-tion in his pocket He was a staunch defender of

any restrictions on the FREEDOM OF SPEECH He dissented in Dennis v United States, 341 U.S

494, 71 S Ct 857, 95 L Ed 1137 (1951), which upheld a federal statute making it a crime to advocate the overthrow of the government by force Black rejected the Court’s reliance on the

“clear-and-present-danger” test, in which the Court considered whether such a serious danger existed that the restriction of speech was justified Black wrote,“There is hope that

in calmer times, when present pressures, passions and fears subside, this or some other Court will restore the First Amendment liberties

to the high preferred place where they belong in society.” He joined Justice William O Douglas’s dissent in the obscenity case ROTH V UNITED STATES, 354 U.S 476, 77 S Ct 1304, 1 L Ed 2d

1498 (1957), in which Douglas maintained that even “prurient” material was entitled to abso-lute First Amendment protection In the First Amendment caseENGEL V.VITALE, 370 U.S 421,

82 S Ct 1261, 8 L Ed 2d 601 (1962), he wrote the majority opinion holding that voluntary prayers sponsored by public schools are uncon-stitutional He stated,“It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of sanctioning prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.” One of Black’s last opinions before leaving the Court was for the Pentagon Papers case,NEW YORK TIMES CO.V

UNITED STATES, 403 U.S 713, 91 S Ct 2140, 29 L

Ed 2d 822 (1971), in which he concurred in the Court’s holding that the government could not prevent publication of a classified study on the

VIETNAM WAR Black departed from his liberal views in

Ct 193, 89 L Ed 194 (1944), a widely criticized decision, for which he wrote the majority opinion upholding the internment of Japanese Americans during WORLD WAR II Despite the condemnation of Korematsu in the years following the war, Black stood by the decision, maintaining that it was justified by the climate

of fear that existed at the time In addition, his

to write other opinions that sometimes seem inconsistent with his liberal views He dissented

THE LAYMAN’S

CONSTITUTIONAL

VIEW IS THAT WHAT

HE LIKES IS

CONSTITUTIONAL AND

THAT WHICH HE

DOESN’T LIKE IS

UNCONSTITUTIONAL

—H UGO B LACK

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inGRISWOLD V.CONNECTICUT, 381 U.S 469, 85 S.

Ct 1678, 14 L Ed 2d 510 (1965), in which the

Court struck down, on privacy grounds, a state

law that prohibited the sale of contraceptives

Black maintained that no right of privacy could

be found to emanate “from one or more

constitutional provisions.”

While on the Court, Black was known for

being sometimes antagonistic toward other

justices with whom he disagreed The Court’s

tradition of keeping private its inner workings

and the nature of the personal relationships

between the justices was broken when Black

became engaged in an unusually public feud

with Justice ROBERT H JACKSON in 1946 The

dispute began when Jackson, in a letter to the

Senate and House Judiciary Committees,

ac-cused Black of a CONFLICT OF INTEREST for

participating in two labor decisions that were

argued by a former law partner of Black’s

Jackson failed to mention that Black and the

attorney had dissolved their partnership 19 years

earlier and had hardly seen each other since

Black, in turn, publicly criticized Jackson’s

leave of absence from the Court from 1945 to

1946 to serve as the U.S prosecutor at the

“high grade lynching party.” Jackson was in line

for the chief justice seat, which had been

vacated in 1946, and he blamed Black when

the appointment went to Fred M Vinson,

selected by President Truman to restore peace

among the members of the Court Following

Vinson’s appointment, Black and Jackson were

outwardly cordial to each other, though Jackson

was reported to have remained resentful,

believ-ing that Black’s actions had denied him the post

of chief justice

Healthy and vigorous well into his later life,

Black was an avid tennis player who often

shared the court with his law clerks On

September 17, 1971, Black resigned from the

Court at the age of eighty-five He died just

eight days later after suffering a massive stroke

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