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March|April 2003
The Jazz Man By Aviam Soifer
Danger in Numbers By Neal Kumar Katyal
Reversals of Fortune By Patrick Keefe
Opinion For Sale By Steven Moss

The Jazz Man

Charles Black's upbringing in the segregated South inspired his lifelong fight for civil rights.

By Aviam Soifer

WHEN CHARLES BLACK WAS A TEENAGER growing up in the segregated Texas of the 1930s, he heard Louis Armstrong play the trumpet at an Austin dance. More than 20 years later, Thurgood Marshall introduced Black at a celebration of Brown v. Board of Education held at the Savoy Ballroom in Harlem. "And next over there is Charlie Black, a white man from Texas, who's been with us all the way," said Marshall, who had led the NAACP campaign against segregation and argued Brown before the Supreme Court. Black credited Armstrong's sorrowful yet irrepressible jazz with compelling him to join the fight for racial equality. Listening to this music in his corner of the South between the world wars, Black said, he began to understand segregation as "that most hideous of errors," which he called "the failure to recognize kinship." Years later he explained, "It is impossible to overstate the significance of a 16-year-old Southern boy's seeing genius, for the first time, in a black."

For over five decades at Columbia and Yale law schools and also as a lawyer for the NAACP Inc. Fund, Black urged the government to do its constitutional duty to eradicate racism. In six influential books about constitutional law, he repeatedly wrote against the dominant trend of his times and promoted active judicial review. In his view, judicial intervention served most crucially—albeit paradoxically—to legitimize activity by the government. This activist role demanded that the Supreme Court use its power to strike down the actions of the other federal branches and of the states.

Yet when Black came of age as a legal thinker, most people believed the federal courts should defer to elected representatives to function as what the Federalist Papers called "the least dangerous branch." It was as if American judges were repeat players in a high-stakes poker game pitting law against politics, and the chips of judicial credibility were in short supply. If judges played too actively, they risked the loss of public confidence no matter what cards were showing in front of them. Or so most leading legal scholars assumed, eager to escape the general skepticism about law unleashed before World War II by the legal realists, who upended the traditional faith in law as fixed and predictable by persuasively arguing that it is made by judges rather than found.

After World War II, legal education emphasized the breaking of cases and institutions into components. By contrast, Black insisted on putting things together. For instance, when Herbert Wechsler, speaking for much of the legal establishment, expressed sympathy with the result in Brown while scolding the court for its lack of "adequate neutral principles," Black's gutsy response combined a powerful personal account of life in the segregated South with a sophisticated legal rebuttal. He directly linked the stigma of the segregated system to the unfulfilled promise of the Fourteenth Amendment. To answer the claim that separate could be equal in America, Black said he simply had to invoke "one of the sovereign prerogatives of philosophers—that of laughter."

In a series of extraordinary Supreme Court briefs for the NAACP Inc. Fund in the early 1960s, Black continued his quest to realize the constitutional guarantee of equal protection by refocusing the issue of "state action." If what purported to be private discrimination was entwined with longstanding official discrimination, he asked, why did the courts require proof of state action before they could provide a remedy for discrimination? Why, ever since the Civil Rights Cases of 1883, had the Supreme Court limited the reach of due process and equal protection rights in this fashion? In his 1967 "Foreword" to the Harvard Law Review, Black underscored how the search for state action had contributed directly to the rise of Jim Crow. And he celebrated the court's rejection of a "state action" defense earlier that year.

Yet three years later, in Evans v. Abney, a case Black argued before the court for the NAACP Inc. Fund, the justices refused to follow through. The majority upheld a Georgia state court decision that allowed a park to remain segregated by reverting to the heirs of the proudly racist senator Augustus Octavius Bacon. The court refused to see sufficient state action either in the entanglement of public officials with the park or in the role of the Georgia courts in enforcing Bacon's will. Since that decision, Black's forceful arguments against the artificiality and incoherence of the state action doctrine have been swept away by the Supreme Court's deference to the states and the marketplace.

As his colleague Jack Greenberg observed, however, Black succeeded in part because he was not afraid to lose. As an unreconstructed contrarian, he emphasized commitment of heart as well as head over the long haul. For much of his life, he was known largely for his critiques of what he found disappointing in the law, wrought by Congress and the president as well as by the Supreme Court. Black argued that "skilled and tireless advocacy, returning again and again to insist on the rightness of its cause, can make new law."

Part of Black's genius was to find inspiration for radical thought in an ancient and unlikely body of law. With Grant Gilmore, he produced two editions (nearly 20 years apart) of a leading book on admiralty law. In his work on the Constitution, Black liked to draw examples from admiralty's expansive sense of jurisdiction and its imaginative concern for the welfare of seamen. If a pre–Civil War decision could extend the reach of federal admiralty law to property salvaged above a river's high water mark, he argued, then surely the reach of the federal courts could extend to basic civil rights claims. "I have long thought that all we need in legal method, to get all we need in the field of racial equality—at least so far as a court can give it to us—is that the Thirteenth, Fourteenth, and Fifteenth amendments be read in the same spirit as the admiralty clause," he wrote.

In one field of law after another, Black invoked the basic tools of lawyering. He relied on presumption, close reading, cogent argument, and attention to context. Unlike many of his contemporaries and successors, he didn't stress reasoning across disciplines or engage in historical revisionism or economic theorizing. His intellectual boldness sprang from within the four corners of the law itself. His scholarship celebrated good lawyering, which was as uncommon in the legal academy then as it is today. Black simply defied the common assumption that "lawyers must think small, even meanly, or lose the aura of professionalism."

In addition to his books on the broad sweep of constitutional law, Black published leading works on impeachment, the death penalty, and Congress. Throughout, he held to his belief that the craft of lawyering is to put facts and ideas together in a clear, trustworthy way. This helps explain why the short impeachment book he wrote in the course of one week in 1974—some say he produced it in a single weekend—remained the basic reference during another presidential impeachment crisis several decades later.

BLACK'S BREADTH AS A SCHOLAR-LAWYER-activist reflected his personality: He relished the role of an unforgettable character. In a 1970s production of Julius Caesar at the Yale Repertory Theater, he played Cicero with an unrepentant Texas twang. (When Robert Brustein, then dean of the drama school, tried to get Black to change his pronunciation, Black asked, "Bob, why do you think a first-century Roman would speak with a New York accent?") Black's antic sense of humor and his love of paradox filled his writing. He wielded his quirky, vigorous style to surprise and amuse. Arguing that the Supreme Court's watershed 1803 decision in Marbury v. Madison was not boldly innovative, for instance, Black declared that Chief Justice John Marshall's idea of judicial review was "not an elephant breaking through Arctic waters with a fish in its mouth."

Black had the dark eyes and the handsome, soulful look of an artist. He published three books of poetry, painted landscapes and abstract expressionist canvases, and played what he called cowboy harmonica for just about anyone who would listen. He learned the instrument at the age of 10 from a 75-year-old former slave named Buck Green, who, he would say, "still plays harmonica through my mouth." After Louis Armstrong died in 1971, Black held an annual "Armstrong Evening" at Yale. He spun 78 r.p.m. records from the 1920s and 1930s and shared reminiscences with the students who were delighted to take over the faculty lounge for this memorable event.
Students also learned from Black's wonderful mix of down-to-earth practicality and dreaminess. As he put it, "We talk about the protection of our fellows from the suffering and indignity of want as though it were a matter of taking Mount Rainier under one's arm and jumping over the Pacific Ocean, when in fact it is a matter of deciding whether or not to help a frail person lift something that we can ourselves lift."

Still, Black's art and scholarship is suffused with the anticipation of failure. After he died in 1999 at the age of 85, his daughter Robin described him as "melancholic by nature" in a eulogy published as part of a memorial by the Yale and Columbia law reviews. His ongoing struggle against worries, fears, and doubts helps explain his unusually creative engagement with interpretation. Black insisted that it is a grave mistake to expect law to afford any apodictic proof. Texts do not interpret themselves. Interpretation is the lawyer's art. By wielding the basic tools of a lawyer in a most original way, Black demonstrated how to make law better.

As his daughter Robin noted, "He was an inventor of the unimaginable and an interpreter of the previously invisible." For Black, the task of law was to follow a clear arc bending toward justice. The nation's promise stretched from a hopeful founding, through the crucial constitutional reforms following the Civil War, and on to the struggles of the civil rights era. Charles Black's cogent analysis and his abilities as a wordsmith did much to define those struggles. With imagination and flair, he worked to fulfill the Constitution's most basic guarantees.

Aviam Soifer is a professor and former dean at Boston College Law School. His article on disability rights will appears in a March William and Mary Law Review symposium.

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