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Salty Septuagenarian. At 78, Hugo Black has served on the Court for 27 years under five Presidents, been Senior Justice for no less than 19 years. Justices Brennan, Goldberg, Stewart and White are young enough to be his sons. But there has yet to be any serious talk of Black's retiring. He is a wiry little man of boundless energy who plays ferocious tennis almost every day, sometimes four hours at a time. His blue-green eyes sparkle with the light of a mind still aggressive in the pursuit of learning. No other Justice has less formal education; yet none is more widely read than the libertarian Alabamian who deprecates himself as "a rather backward country fellow."
Black has lived to see the "Warren Court," as it is known out of respect for its Chief Justice, more accurately called the "Black Court" after its chief philosopher. No other Justice in the past 25 years, says Stanford Law Professor Gerald Gunther, "has cared more, worked harder and done more to persuade his colleagues to accept his constitutional philosophy." In fact, no other Justice in the Court's entire history has lived to see more of his dissents turned into doctrine—doctrine that construes the Bill of Rights more generously than ever before as the open society's chief antidote to Government indifference or suppression.
Savory & Unsavory. If the Court has yet to officially accept some of Black's pet views of the Constitution, it has nonetheless swung his way ever since Chief Justice Warren came to Washington in 1953 and pulled together a divided Court that, within a year, unanimously outlawed school segregation. Eisenhower Appointee Warren soon added a solid third vote to the activist bloc of Black and William O. Douglas. In William J. Brennan Jr., another Ike appointee, the bloc picked up a fairly dependable fourth vote. The decisive fifth came in 1962, when the ailing judicial restrainer, Felix Frankfurter, retired, to be succeeded by President Kennedy's gung-ho Labor Secretary, Arthur Goldberg.
Though no Court bloc has ever been solid on every issue, today's 5-4 majority has produced a Court with an unprecedented solicitude for individuals, the unsavory as well as the savory. The Court's hallmark is a greater-than-ever willingness to act in the face of a commonly overlooked fact: the failure of Congress for generations to pass laws enforcing the 14th Amendment, which was ratified in 1868.
The key provision of that amendment reads: No States shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Congressional failure to implement this left the Court as the only forum for vast social complaints—the Negro's demand for justice, the city dweller's cry for equal representation, the growth of Government power that stirs concern for individualism and the very quality of U.S. life.
Whether or not the Court should have acted on those complaints may now be less important than whether it has been too doctrinaire in how it acted. A look at the record:
∙ RACE: Since the 1954 school decision, the Court has struck one