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What's Reasonable? Black was often in hot opposition to his social friend and judicial enemy, Justice Frankfurter, who believed that "judicial restraint" required judges to defer to administrators and legislators as being more expert and closer to the public will. Unwise policies should be corrected at the ballot box, Frankfurter argued; it is neither democratic nor efficient for nine lifetime judges to issue rigid orders about matters best left to elected compromisers.
Justice Holmes once half-jested that "if the people want to go to hell, I will help them. It's my job." Black studied the Constitution and found definite rules —"absolutes," he called them—that forbade any such attitude. He particularly balked at Frankfurter's thesis that the Court must balance personal freedoms against Government needs and uphold any "reasonable" Government action. To Black, the "balancing test" was a turning away from the Constitution: it freed judges to pursue their own notions of reasonableness and veered "close to the English doctrine of legislative omnipotence." Where were the limits?
All this, Black argued, was evident in the Court's contradictory use of the 14th Amendment. On the one hand, it used the due-process clause to protect property rights by striking down state economic regulation. On the other, it backed away from using the same clause to bring state criminal-law procedures up to Bill of Rights standards. In the 1942 case of Belts v. Brady, for example, the Court upheld the robbery conviction of a jobless Maryland farm hand who had been too poor to hire a lawyer. The Sixth Amendment's guarantee of the right to counsel applies only in federal courts, said the Court, ruling that states need furnish indigents with lawyers only in "shocking" circumstances.
Painful Precedents. Black sharply dissented, but the vaguely worded rule remained on the books to cause case-by-case confusion for the next two decades. In 1947, the Court took a similar tack in Adamson v. California, saying that the Fifth Amendment did not forbid states to pressure a defendant to testify against himself. Calling this "an incongruous excrescence on our Constitution," Black offered an elaborately researched dissent arguing that the 14th Amendment's framers themselves intended the Bill of Rights as a shield against the states. He won over three other Justices (Douglas, Murphy, Rutledge). A fifth vote would have turned his theory of incorporation into law.
After that, Black became a lonely dissenter, with only Douglas for an ally. Murphy and Rutledge died in 1949, and their successors—Tom C. Clark and Sherman Minton—consistently disagreed with him. Black's wife died in 1951, plunging him into gloom for six years, until he married his secretary (and quickly taught her tennis). Amid all this, Black was alarmed at the Court's bend-over-backward opinions during the McCarthy-era prosecution of real or suspected Communists. One after another, his dissents contained such phrases as "I regret, deeply regret," and "this weird, debilitating interpretation."
Firstness of the First. When the Court upheld "non-Communist" loyalty