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00:00Yes, it's wonderful, but people are going to die.
00:03New freedoms bring new perils.
00:06Segregation now, segregation forever.
00:09And an unlikely champion arises.
00:12Why did they write the bill of rights?
00:14In fact, all of them make it more difficult to convict people of crime.
00:18It's a time of great social upheaval, and the court will lead the way.
00:23We really have a remade idea of individual rights and civil liberties in America.
00:27This time, on the Supreme Court.
01:02The Second World War changed America in every way.
01:06It cast Americans as defenders of liberty worldwide, at a time when six newly appointed justices
01:13were just beginning to find their way on the Supreme Court.
01:17It's a time of a rising sense of defending the values of Western civilization.
01:22In a sense, defending the product of the Enlightenment against the totalitarian hordes that Hitler represented.
01:37The United States enters this war against fascism, nazism, and totalitarianism.
01:43And what happens in the course of that engagement was that America begins to define itself in terms of that
01:50conflict.
01:59The war changed American ideas on individual liberty and government power.
02:09It showed a whole generation the wider world, and convinced that generation there was nothing America couldn't do.
02:17A most powerful nation the world had ever seen.
02:20And because of our freedoms.
02:23Because of our rights.
02:27Over the next quarter century, that belief would push the nation and its Supreme Court to a new agenda.
02:34Onto unexplored terrain.
02:39This is a watershed time in the court's history.
02:42You have World War II.
02:43You have McCarthyism.
02:45You have the Cold War.
02:46You have the civil rights struggles.
02:49There's tension between national security, national identity, free speech, individual rights.
02:55And it falls into the lap of these nine justices to sort it all out.
03:00They don't move in a straight line.
03:01They move in fits and starts.
03:03They have to backtrack.
03:05But eventually we really have a remade court and a remade idea of individual rights and civil liberties in America.
03:34This new idea, a nation of liberties, would find an unlikely champion.
03:40Justice Hugo Black was a prickly man, certain of his own rectitude.
03:46He was among the most driven men to ever sit on the United States Supreme Court.
03:51But he called himself just an old hillbilly from Clay County, Alabama.
04:04Oh, it was a world that we can barely associate with today.
04:10Isolated Alabama hill country.
04:15People were considered worldly if they went outside the county.
04:18And as a kid, he went to the only real entertainment there was.
04:23And that entertainment was the courtroom up in the Clay County Courthouse.
04:32Hugo Black never finished high school or college.
04:35He got himself admitted to the University of Alabama Law School.
04:38But he mostly taught himself the law, along with everything else.
04:44He'd read nearly a book a day for more than 50 years.
04:49He wanted to know everything.
04:51Ambition was the other constant.
04:53By his late 20s, he'd made himself a famous trial lawyer in Birmingham.
04:58Then, for a couple of years, a crusading prosecutor.
05:01He was enormously successful.
05:04He once estimated that he had over 2,000 trials.
05:08And he remembered losing about 20.
05:11He would cry when he was in a courtroom if necessary.
05:15He could manufacture crying, although he would always qualify it.
05:19Hugo Black doesn't cry for less than $25,000.
05:25Black turned his dramatically won courtroom reputation to political capital.
05:29With one giant, somewhat surprising leap into the United States Senate.
05:34By 1937, he was in his second term.
05:38Champion of the little guy.
05:39And a spur for radical New Deal policies.
05:42When FDR plucked him for the court.
05:48FDR drops a bombshell.
05:51Hugo Black.
05:53An anomaly.
05:54An intellectual leftist liberal from the South.
05:58You couldn't dream it up.
06:00But this was only the first of several things we couldn't dream up.
06:05Black was confirmed by the Senate handily, 63 to 16.
06:09Takes a long-delayed trip to Europe.
06:14As Black sailed for Europe, a reporter left Pittsburgh to investigate rumors that had been whispered about at Black's confirmation.
06:22It was a long shot.
06:24A northern newspaper man trying to penetrate the secrets of the society that ruled the South.
06:32But he got his story.
06:38Tell us, Justice Black, are you a member of the Ku Klux Klan?
06:42Right.
06:43I thought you were a member of the Ku Klux Klan.
06:45The ex-senator ducks a direct answer and refuses to commit himself to the press.
06:51Of course he was a member.
06:54It was the only way he could get elected.
06:57Without the Klan, he would have been a minor candidate with very little money.
07:02It was his campaign organization in every way except name.
07:07After all, most people's neighbors, one side or the other, were members.
07:1115,000 of the 32,000 white men in Birmingham were members of that Klan unit.
07:18He would go to Klan meetings.
07:20He would speak.
07:21He would put on the regalia.
07:24He would march in some of their parades or their demonstrations.
07:27So he was a fairly active member.
07:32Crossed swords, lay out the Bible on the altar, and he read the oath.
07:36I swear that I will most zealously and valiantly shield and preserve by any and all justifiable means and methods.
07:44White supremacy.
07:49Ladies and gentlemen.
07:50An effort is being made to convince the people of America that I am intolerant and that I am prejudiced.
08:03These insinuations...
08:04He would make one statement, a radio address, holed up at a friend's house in the suburbs of Washington.
08:11This would be the summation in his greatest trial, his own, and before the grandest jury.
08:17The audience for Hugo Black's speech would be the second largest in history,
08:22behind only the abdication of King Edward VIII.
08:25...intolerance.
08:26I number among my friends many members of the colored race.
08:32Certainly, they are entitled to the full measure of protection
08:37accorded by our Constitution and our laws.
08:43I did join the Klan.
08:45I later resigned.
08:48I never rejoined.
08:53He never denounced the Klan.
08:55He never gave a reason why he joined and why he resigned.
09:01He says, I have no problems with Jews or African Americans.
09:05I count them as my friends.
09:07And that was it.
09:09He could not come up with a good reason why he joined the Klan.
09:12The only reason politics was too obvious, too crude.
09:19The joke in Washington was they wouldn't have to buy a new robe.
09:22He can dye his white one black.
09:29President Roosevelt ignored the calls for Justice Black's resignation.
09:33And Black stood his ground.
09:35He wasn't going anywhere.
09:37But the question remained.
09:38Would Justice Hugo Black be willing to protect the rights of all?
09:45There would be no quick answer.
09:47Because in the 1940s, outside of economic liberties, the court had almost no history on protection of individual rights.
10:02It started with children who were kicked out of school.
10:06Because in the run-up to war, the schools were at work building patriotism.
10:12In Minersville, Pennsylvania, all kids had to salute the flag.
10:20There were two little kids there, Lillian Gobitis and William Gobitis.
10:25Lillian was 12.
10:26William was 10.
10:27They were Jehovah Witnesses.
10:29And it was against their religious faith to pay homage in any way to the flag.
10:35The Minersville school district said no exceptions, and these children were expelled.
10:41So their parents brought suit on the basis of their religious freedom.
10:46And they won at the lower courts.
10:49And then it came up to the Supreme Court of the United States.
10:53It was a brand new Supreme Court, remade by five fresh Roosevelt appointees.
10:59Black was the first.
11:01But the ornament and leading light was to be Felix Frankfurter.
11:05He might have been the most famous lawyer in the country, a towering figure in Roosevelt's brain trust.
11:13He was an immigrant, an Austrian boy who landed on Ellis Island at age 12, without a word of English.
11:19But he dazzled everybody who saw him since, from the Lower East Side to Harvard Law School and beyond.
11:29Everybody assumed that Frankfurter would become the leader of the liberal wing of the court.
11:35He was a founding member of the American Civil Liberties Union.
11:39He was an early supporter of the NAACP.
11:42He defended Sacco and Vanzetti, the two immigrant anarchists.
11:48He advised Wilson.
11:50He advised Franklin Roosevelt when he was governor of New York.
11:53And, of course, he became almost a one-man employment agency for the New Deal.
11:59They were called Frankfurter's Hot Dogs.
12:04Some jurists come to this court hat in hand.
12:08Frankfurter swaggered in.
12:09He expected to sweep the court along.
12:12And he did.
12:14He wrote the flag salute opinion for an eight-to-one majority
12:17and dismissed the plea of the Gobitis children with magisterial certainty.
12:24What he says is that maybe the policy isn't one that he would agree with,
12:28but the states, legislatures, school districts have the right to enact it.
12:33It's a theme he struck again and again on the court,
12:36and that is it was really the theme of judicial restraint.
12:40As long as the legislative and executive branches acted reasonably,
12:45the court ought to find their actions constitutional.
12:52In this case, as in most others,
12:55Frankfurter thought democracy should run its course.
12:57If the majority elected a school board
13:00and the school board wanted a flag salute,
13:03then everybody must salute.
13:06It's not that he didn't recognize the value of individual liberty,
13:10but he thought that fundamentally the freedom of the people
13:13had to be protected through democratic institutions
13:17and not through court-imposed settlements.
13:20It's an ethic that is extremely deferential to democratic outcomes,
13:25but it turns out that the democracy isn't always as protective
13:30of people's rights and liberties as we would like to think.
13:37Real people had to pay the price for the court's deference.
13:40In this case, Jehovah's Witnesses paid dearly.
13:44The Gobitis kids had to be sent away when the family was threatened by vigilantes.
13:54When this ruling comes down in 1940,
13:57Jehovah's Witnesses are being pulled out of their homes,
13:59pulled from their cars, literally tarred and feathered,
14:02pushed to do humiliating things like kiss the flag,
14:06forced to drink castor oil, and paraded, tied up through the streets of these small towns.
14:12There was one incident of somebody being kidnapped and castrated,
14:16and newspapers across the country were outraged by what happened.
14:23Shortly after that, Black, Douglas, and Murphy wrote basically saying they were wrong and go bite us.
14:33Black and his fellow justices almost advertised for another flag salute case, and got one in 1943.
14:42In Barnett v. West Virginia, the vote was 6-3 for the Jehovah's Witnesses,
14:47and the court held the decision to announce on Flag Day to signal that a major shift was underway.
14:55And 1943 is one of the first times in the history of the court that the justices come together
15:01and embrace a vision of the Constitution that judges could enforce against the political system
15:08in the protection of civil rights and liberties.
15:11And that transformation is key not only to changing the U.S. Supreme Court,
15:16but it's key to changing the country as a whole.
15:21Frankfurter was left in lone dissent to rage against the majority that had abandoned him.
15:28What reason is there to believe that they, or their successors,
15:31may not have another view a few years hence, Frankfurter wrote?
15:35Is the Constitution to be the sport of shifting winds of doctrine?
15:41Frankfurter wasn't much judge of character.
15:43Hugo Black wasn't about shifting winds or fashions.
15:47Where he saw what he thought was a clear limit in the Constitution,
15:51no power, not the governments, not even a democratic majority, could overrule that limit.
15:59Black's argument is that the Constitution limits the power of government over individual citizens.
16:06The limits are defined by the Bill of Rights.
16:08From his point of view, his job was to take the literal language of the Constitution
16:12and apply it as it was written.
16:16In many respects, Black is bringing to his analysis
16:20that kind of biblical authority of the importance of the text
16:24that he grew up with as a child in Alabama.
16:28As the Bible is the holy word of God from this tradition,
16:33Black and others like him see the Constitution as the holy word of the framers.
16:38And that must bond.
16:41Even if there were only one Communist in the State Department,
16:45there would still be one Communist too many.
16:49This microfilm was made for the purpose of transmitting State Department documents to the Soviet Union.
16:55Are you a member of the Communist Party?
16:56Or have you ever been a member of the Communist Party?
17:01The country as a whole is in the middle of the McCarthy scare.
17:05There are concerns about China going Communist.
17:08There is the Korean War.
17:10There's a general sense that in this battle between America and Communism,
17:15that we are under siege.
17:17And there's a lot of panic in the country.
17:20In New York City, federal authorities charged the leaders of the American Communist Party
17:25with violations of the Smith Act.
17:30The Smith Act makes it a crime for people to advocate the violent overthrow of the U.S. government.
17:37But there was no accusation that they were actually engaged in a conspiracy to actually overthrow the U.S. government.
17:47What these 11 American Communist leaders had done, so far as the trial record showed,
17:54was that they had taught Marxist-Leninist doctrine.
17:58Well, under the Smith Act, they were convicted for conspiring to advocate the forcible overthrow of the government.
18:07Black had been building on his notion that the freedom of expression was a preferred guarantee
18:14under the Bill of Rights.
18:16For black, the First Amendment was really the most important
18:21because it was the indispensable to our democratic government.
18:27Now, if a man were to say this to me out on the street,
18:31Congress shall make no law.
18:34That's the First Amendment.
18:37I would think, amen, Congress should pass no law.
18:47The court voted 7-2 to sustain the conviction of the communist leaders.
18:52Black and William O. Douglas dissenting.
18:55And through almost a decade, that became a tagline.
18:59Hopeful to liberals, hateful to communist hunters.
19:02Black and Douglas dissenting.
19:08In his dissent in Dennis Black says the following,
19:11Public opinion being what it is now, few will protest the conviction of these communist petitioners.
19:18There is hope, however, that in calmer times, when present pressures, passions, and fears subside,
19:24this or some later court will restore the First Amendment liberties to the high preferred place where they belong in
19:31a free society.
19:35When Black and Douglas stood to defend free speech, they were tagged as communist sympathizers.
19:41FBI Director J. Edgar Hoover opened secret files on both men.
19:45He would later wiretap Black's home phone.
19:50Black never complained in public, and he didn't mind writing in dissent.
19:55For majority opinions, you might put in language for other justices, to keep them on your side.
20:01But in dissent, Black could write exactly what he meant, and that might bear fruit in other cases.
20:07Five, ten, fifteen years later, Black could play the long game.
20:34Segregation had been not just custom, but law in America for generations.
20:42Separate but equal had been blessed by the Supreme Court back in 1896 in Plessy versus Ferguson.
20:51Whites and Blacks traveled in separate railroad cars, drank at separate fountains,
20:57ate in separate restaurants, attended separate churches, and were buried in separate graveyards.
21:07Still, times were changing, and the NAACP lawyers figured they might be able to push the court to change along
21:13with them.
21:15It was a long shot, but better than waiting on Congress.
21:21The South was not a democracy in the 1950s.
21:25Only something like 20% of African Americans were registered to vote in the South.
21:33White Democrats in the Senate could filibuster to death any civil rights legislation.
21:39That was a pattern all the way from the 1920s to the 1950s.
21:44One of the profound ironies of 20th century civil rights history is that the Supreme Court was arguably more democratic
21:52than Congress and the presidency.
21:59By the early 50s, segregation was frayed by the war and torn in spots where the court had acted.
22:05The white primary was outlawed. Housing covenants outlawed.
22:11Some graduate in law schools were forced to admit Blacks.
22:15But the court was aware that the big fight was still to come.
22:19The schools. K through 12. White children and Black in the same classroom.
22:29Southerners assumed that if grade school kids were in a desegregated setting,
22:36they'd get to know each other and they'd get to date each other and then they'd marry each other.
22:41And that was the strongest taboo that the South held.
22:48Led by Thurgood Marshall and other young lawyers like Robert Carter,
22:52the NAACP Legal Defense Fund was running or aiding cases all over the country.
22:58The court picked five and consolidated them into one set of arguments,
23:03forever known as Brown v. Board of Education of Topeka, Kansas.
23:09As oral arguments approached, people camped outside the building to assure themselves a seat in the courtroom.
23:16NAACP lawyers Marshall and Carter were up against a formidable adversary,
23:20John W. Davis, a former presidential candidate,
23:24making the last of his 140 appearances at the Supreme Court.
23:30But his arguments had a familiar ring.
23:33Separate wasn't necessarily unequal.
23:36Blacks should be happy with the way things were.
23:39Didn't states have the right to educate their children as they saw fit?
23:46When the three days of arguments were over, Davis was heard to remark,
23:50I think we've got it one, five to four, or maybe six to three.
23:56He figured he had the Chief Justice, Fred Vincent, and his fellow Kentuckian, Justice Stanley Reed.
24:02The only justices he would give up on for sure were Hugo Black and Bill Douglas.
24:10Still, at the conference after the hearing, the justices never got to a vote.
24:15It was clear there was doubt and disagreement.
24:20Justice Douglas, in a private memo, said that when the case was first argued,
24:25there were only four votes to strike down segregation,
24:27and there were five justices who were not yet prepared to do that.
24:32Many of the justices thought segregation was profoundly wrong as a personal matter, as a moral matter.
24:38They thought segregation was Hitler's creed.
24:41That's how Justice Black once referred to it.
24:43But they weren't sure that the law condemned segregation.
24:47Precedent was strongly on the side of segregation.
24:51Custom had sanctified segregation.
24:54And who was going to enforce it?
24:56Congress couldn't do anything about it.
24:58Could the president do it alone?
25:01Not if the president's Dwight David Eisenhower,
25:04who was decidedly lukewarm on overturning separate but equal.
25:11The justices scheduled another hearing on the case.
25:14But before that could happen, Chief Justice Vincent died of a heart attack.
25:20President Eisenhower chose to nominate Earl Warren,
25:24formally the governor of California.
25:26Actually, Ike didn't have any choice.
25:29He'd promised Warren the next Supreme Court slot in a deal at the 1952 Republican Convention.
25:35It turned out Ike had to make Warren the chief.
25:40There is no reason to believe that Earl Warren is going to be the catalyst for great change constitutionally.
25:50He is involved in the Japanese American relocation.
25:53Hell, he's an Eisenhower appointee.
25:56This is not somebody who you would look to to think the world can change.
26:03The new chief was welcomed by the other great politician on that court.
26:07When Warren was new in town, Hugo Black would take him home, open a bottle of scotch, and put some
26:12good steaks on the grill.
26:14They'd talk about the court all night.
26:20Warren asked Black to run the court conferences until he got his feet on the ground.
26:25When Warren finally took over the conference, he ran smack into Brown versus Board.
26:32None of the justices knew what to expect from the new chief.
26:37It's an interesting way to walk into your job.
26:40What he does in this first conference in December of 1953 is state the issue as a moral issue.
26:48If we uphold Plessy, we're saying that blacks are inferior to whites.
26:54He doesn't talk about the legalities of it.
26:56Then he just lets it sit.
26:59The issue now was different from the issue the year before when nobody knew what the outcome would be.
27:05Now all the justices knew what the outcome would be.
27:08The question was what the vote would be.
27:11Warren had to have unanimity.
27:13He couldn't expect much help from the White House, and none from Congress.
27:19Could the court take on segregation alone?
27:22The South would rebel.
27:24What army could the court send?
27:27And any dissent would become the new anthem.
27:30No, the new legal brief.
27:32For segregation in the South evermore.
27:36The next conference on this is in January.
27:39In between, he does what Earl Warren does.
27:42He walks halls.
27:44He talks to justices.
27:45He arranges lunches.
27:47I mean, this is the way politicians approach things.
27:50And Warren was, at core, a politician.
27:53He kept them talking week after week and managed to get the court to where it was eight to one,
28:00with Stanley Reed being the dissenter.
28:02He then went into Reed's office and stated,
28:07Stan, you're in this alone now.
28:10You've got to do what's best for the country.
28:22On May 17th, 1954, there were signs.
28:26Some of the justices' wives showed up.
28:29Some clerks were tipped off.
28:32Then reporters rushed to the courtroom.
28:36Warren starts off in a bland manner, and you can't tell for a while, as he's delivering the opinion, what
28:46the outcome is going to be.
28:48And then he comes to the key line, and he says, and we unanimously hold that separate but equal has
28:57no place in the Constitution.
29:00And it was just electric in the courtroom when he said unanimous.
29:05We conclude that in the field of public education, the doctrine of separate but equal has no place.
29:12Separate educational facilities are inherently unequal.
29:15Therefore, we unanimously hold that the plaintiffs are deprived of the equal protection of the laws guaranteed by the 14th
29:22Amendment.
29:24Plessy v. Ferguson in education is no more.
29:27And in practice, Plessy v. Ferguson itself is no more.
29:31The era of Jim Crow, constitutionally speaking, is over.
29:37This was precisely what we urged them, almost in that language.
29:43So it was gratifying to have the opinion come down, almost in the language of the argument that we made
29:55to them.
29:56In 1951, I'd used a plain geometry book that had been used by a white student in 1935.
30:04Brown said that that was over.
30:07The hand-me-down tubers that I played in a high school band from the white high schools,
30:16it said to me that that was ended.
30:22And it said to me that, at some point, I would not have to travel from Atlanta to Greencastle in
30:29Indiana to get an undergraduate degree.
30:33That my family, my cousins, my neighbors could go to Georgia Tech and to the University of Georgia.
30:41The Supreme Court decision of 1954 was, for me, the Magna Carta.
30:47It was the second emancipation.
30:51It was a great moment.
30:54What I did believe was that it would end segregation and discrimination in the country.
31:01And what I also believed was that it would provide equality for black people.
31:09What I didn't realize, and this comes with experience,
31:14is that segregation was a symptom of a larger evil in the society, which is white supremacy.
31:23Black went to a dinner a couple of days later and all the guests said,
31:27Oh, this is wonderful.
31:29Oh, marvelous.
31:30Black said,
31:33Yes, it's wonderful, but people are going to die.
31:38He had seen at first hand, in the Klan and otherwise in Alabama,
31:43how raw emotions were and how close to the surface they were.
31:48And he said that the tree of liberalism will have to grow with people's blood.
31:56For years after the case, when Black went home to Alabama, he wore a bulletproof vest.
32:02Then he stopped going altogether.
32:05He was the most reviled native son.
32:09In 1959, the State Senate resolved that Black's remains must never be buried in Alabama's sacred soil.
32:17By that time, Black's best friends had cut him off.
32:20His son, Hugo Jr., had to leave Alabama.
32:23He was getting telephone death threats.
32:26A crowd tried to burn him in effigy on his front lawn.
32:36Meanwhile, schools in Alabama hadn't changed a whit.
32:40The decision in Brown had said only that segregation was unconstitutional.
32:45A full year and another round of arguments had passed before the court decided how to make its great pronouncement
32:51a reality.
32:54In the end, all the court's remedies boiled down to one key phrase from the ever-cautious and deferential Felix
33:01Frankfurter.
33:03Desegregation would proceed with all deliberate speed.
33:08Throughout its long history in English and American law, Frankfurter knew the phrase had always invited a process more deliberate
33:16than speedy.
33:18The problem with the all deliberate speed was that it compromised the court's integrity.
33:27That was a corrupt decision.
33:29When you have a constitutional right, it invests immediately.
33:35And what they did with that one was because of race, they said this over time.
33:42A racist decision meant, I suppose, to ease the South's acceptance of it.
33:52As it turned out, it didn't do that.
33:54How do you boys feel about it?
33:55They don't want no niggers.
33:57No niggers.
33:57No niggers.
33:58They don't want them.
33:59None of them.
34:00None of them.
34:01They don't want to come to school.
34:02They just want to come and cause trouble.
34:04Do you ever see any prospect, sir, of integrating schools in Prince Edward County?
34:10No, sir.
34:11I don't believe it'll come in our lifetime in Prince Edward County.
34:14Prince Edward County simply no longer operates a public school system.
34:18In the face of a federal court order to desegregate schools, the county closed up every one of them.
34:23In 1960, which is five years after that order came down, one in a thousand school-age African-American kids
34:32in the South are attending integrated schools.
34:35That's really an extraordinary instance of nullification of a Supreme Court decision.
34:41It wasn't clear what the answer was going to be.
34:43There was very little integration and a lot of massive resistance.
34:48And the court had to think that our most important pronouncement may be one that the country simply ignores.
34:55Segregation won't end, but the court's authority will.
34:59The NAACP's litigation strategy has flopped.
35:03The Supreme Court is missing in action.
35:06Nothing that the NAACP wins gets any results.
35:11And as a result, you get the youthful activists that start the freedom rides in the spring of 1961,
35:18that began the sit-in movement in the spring of 1960.
35:24And I say segregation now, segregation tomorrow, and segregation forever.
35:37Brown radicalizes Southern politics.
35:39It produces politicians who are more extreme in their commitment to white supremacy.
35:53When Bull Connor, the police commissioner of Birmingham, unleashes the police dogs,
36:01the high-pressure fire hydrants, and the cattle prods on peaceful, young African-American dissenters.
36:15All of this is beamed to nationwide television, and it takes up all the nightly news.
36:27The effect of the pictures on TV was electric.
36:30Civil rights became the nation's agenda.
36:33Still, the battle between the new civil rights activists and the white segregationists might have stayed a standoff.
36:40Integration might have stalled for another ten years, except for a third force that was also becoming more hard-line.
36:51I regret to announce that Associate Justice Frankfurter has retired from regular active service on the Supreme Court.
37:01Hugo Black's old adversary was gone, and with him, his ideas of judicial restraint.
37:08Over the next five years, Justice Black would lead the Warren Court to an expansive vision of individual rights.
37:15This was his time.
37:18With five votes, the new liberal majority could do anything it chose.
37:22And one thing it chose was to revisit the schools in Prince Edward County, Virginia, one of the five original
37:29cases in Brown.
37:32This is a profound embarrassment.
37:34Thirteen years after the litigation's begun, the schools are still closed in Prince Edward County, Virginia.
37:41Attorney General Robert Kennedy gives a speech in which he says,
37:44Isn't it a shame that the only places in the world where you can't get a free education are in
37:49North Vietnam, Cuba, Communist China, and Prince Edward County, Virginia.
37:56Hugo Black wrote the opinion for the court.
37:59There were no dissents.
38:01A time for mere deliberate speed has run out, he wrote.
38:04And that phrase can no longer justify denying these children their constitutional rights.
38:12Black's take on all deliberate speed is angry.
38:15He is mad that the South hasn't made a good faith effort.
38:20They order that the schools be reopened, and indeed, they order a tax increase to fund public education, which is
38:26something they'd never done before.
38:27But they're so fed up by 1964 that the justices now feel liberated to adopt some unusual methods in responding
38:35to Southern recalcitrance.
38:40It didn't end overnight, but as you moved on through the later 60s, the court began to step in more
38:46frequently, and integration actually began to take place.
38:52The court is back in the game and is not going to abandon the game.
38:57Then, with the landslide election in 1964, you've got President Johnson enthusiastically backing civil rights, and two-thirds majorities in
39:09both the House of Representatives and the Senate of the Democratic Party, this is the era of validation of civil
39:17rights.
39:17It's the 1964 election functionally told the Supreme Court, you were right in Brown.
39:24Good job.
39:36Good job.
39:38When he arrived in Washington as a U.S. Senator, he started acquiring and reading the kinds of books that
39:43all of us say we're going to read, and you typically don't get around to it.
39:48Books like Thucydides, Gibbon, or Carlisle, really the great books, he would write in the margin and argue with the
39:56author.
39:57There'd be these marginal notations like rubbish or nonsense or no, underscored.
40:03You could see this conversation going on between Hugo Black and the long-dead Greek or Roman author of that
40:11particular book.
40:12But what I came to appreciate, the insight that came to me was that surely Hugo Black read the same
40:20kind of books that the founding generation read.
40:24That the world view he had of the Constitution was framed by books that would have been on the shelves
40:31of an educated 18th century person, like the ones who went to Philadelphia in 1787.
40:39Hugo Black's story didn't start in a library, but a courtroom in the Old South.
40:45He'd seen justice dispensed, and injustice too, that stemmed from poverty, bigotry, or simple ignorance, especially where the states would
40:55not bow to the Bill of Rights.
40:57Hugo Black worked in courthouses as a trial lawyer in Alabama.
41:04He was a police court superintendent at one point. He was aware of police brutality.
41:10Confessions were being extracted from innocent people by third-degree techniques.
41:15There was no right to a lawyer. You could be held incommunicado by the police.
41:22And he thought that the Bill of Rights ought to protect citizens against abuse by local police, by state governments,
41:29by state legislatures.
41:32Before the war in court, states had a great deal of latitude in terms of how they would conduct their
41:37criminal justice system.
41:41So, unless there was some gross abuse of police authority, states could largely do what they wanted to do.
41:50Since the 1940s, Hugo Black had been arguing that the Civil War had changed all that.
41:57That if the 14th Amendment meant anything, it was that the Bill of Rights must protect people not only against
42:03the federal government,
42:04but against the actions of any government, in every state.
42:09He says, quote,
42:12Its provisions may be thought outdated abstractions by some.
42:17And it is true that they were designed to meet ancient evils.
42:21But they are the same kind of human evils that have emerged from century to century,
42:27whenever excessive power is sought by the few, at the expense of the many.
42:33In my judgment, Hugo Black goes on,
42:36the people of no nation can lose their liberty so long as a Bill of Rights like ours survives.
42:43I would follow what I believe was the original purpose of the 14th Amendment,
42:49to extend to all the people of the nation the complete protection of the Bill of Rights.
43:01Clarence Earl Gideon had broken into a pool hall in Florida and had been convicted of breaking and entering,
43:07but he didn't have a lawyer.
43:08He was too poor to afford one.
43:10And when the case got to the Supreme Court, the argument on behalf of Gideon was,
43:15it's simply a violation of due process of law for a person to be tried and convicted in a criminal
43:23court without a lawyer.
43:25People that can afford one have those protections, but poor people don't.
43:28It was something that every American could understand was wrong.
43:33If the prosecutor's a lawyer and you are an indigent defendant,
43:38which probably means you're really down on your luck, how are you going to win?
43:43Gideon was the one that somehow went to the heart of the whole criminal trial process.
43:49Gideon was the embodiment of Hugo Black's argument that Bill of Rights guarantees ought to apply to the states.
43:58And knew as we worked on that opinion, here was one that was going to be in the case books
44:03as long as people study American constitutional law.
44:06This would be one of the big ones.
44:10For Black, the restrictions on state power were in the words of the Constitution.
44:15There it was, in black and white.
44:19But if the text was his mandate, it was also his limit.
44:24By 1965, he had to split with his long-time colleague and ally, William O. Douglas.
44:30Black and Douglas, the New Dealers, now old men, had voted together for a quarter century.
44:37But not in Griswold v. Connecticut.
44:43The case was about an old state law that made it a crime to give contraceptives,
44:49even advice about preventing pregnancies, even to married couples.
44:56For Douglas, this looked like his last best chance to enshrine a right to privacy into constitutional case law.
45:05To Douglas, there was nothing more sacred than the right to be left alone.
45:10And the way he went out asserting that right was also characteristic Douglas.
45:15He simply declared it.
45:17Anyone who didn't like it could go to hell.
45:21Justice Douglas' opinion was quite radical,
45:23in that it didn't ground this right of privacy in a single place in the Constitution.
45:30He didn't find explicitly a right to privacy.
45:33But he says if you look to the First Amendment, the right to association and the right to believe what
45:38you will,
45:39and you look to the Fourth Amendment, the right to be free of unreasonable searches and seizures,
45:44and you look at the Fifth Amendment, the right to be protected against self-incrimination,
45:48that if you put all these various, the emanations and penumbras from those explicit rights together,
45:56you surely have a constitutional right to privacy.
46:00And that was his opinion.
46:04Douglas' assertion wasn't good enough for Hugo Black.
46:08It was as if he'd pulled his rumpled old copy of the Constitution out of his pocket just to check,
46:13and he couldn't find the word privacy in there anywhere.
46:17I like my privacy as well as the next one, he wrote in his dissent.
46:21But I am nevertheless compelled to admit that the government has a right to invade it,
46:27unless prohibited by some specific constitutional provision.
46:33More and more through the 1960s, Black's liberal colleagues pushed into territory where he wouldn't follow.
46:40The leadership of the liberal wing was passing to younger colleagues, like William Brennan from New Jersey.
46:47Nevertheless, where Black saw his way clear, say, on issues of a fair trial, he was still in the vanguard.
46:55In 1966, the court put an end to a practice that Hugo Black had seen and decried as a young
47:01prosecutor, back in Birmingham in the 1920s.
47:09In Miranda against Arizona, the court finally came to the last stage of its concern with police brutality and interrogation
47:19techniques, which they thought were unfair.
47:22And they did it in a fairly dramatic fashion.
47:26If you're going to admit a confession against the defendant at trial, you've got to show that he was warned
47:33that he had a right to remain silent.
47:35And more importantly, that he had a right to a lawyer, if he wished one.
47:40And finally, that if he couldn't afford a lawyer, the state would pay for one.
47:45After the war on court, you cannot introduce illegally seized evidence into a trial.
47:52States can't do that. Previously, they couldn't.
47:55After Gideon v. Wainwright, you have to have an attorney represent you in a trial.
48:01After Miranda, you cannot use a coerced confession in a trial to demonstrate guilt.
48:08That has to be excluded from the trial.
48:09So what you do is you move from a state-based criminal justice system to a criminal justice system that
48:18has to conform with nationally imposed rules.
48:22Thirty years had passed since Black joined the court.
48:26He had little left to prove now.
48:29When LBJ appointed Thurgood Marshall, the man who'd led the legal assault on segregation,
48:35Marshall asked that old clansman, Hugo Black, to give him the oath of office.
48:41But just as Black's great arch of rights was receiving its capstone,
48:45people started saying it should be torn down.
48:49As Marshall took his seat, cities were going up in flames.
48:53There was a crime wave in the country.
48:55Public attitudes about the court were changing, and not for the better.
49:00Was the court protecting liberties or criminals?
49:05Mr. Justice, do you think that those decisions have made it more difficult for the police to combat crime?
49:11Certainly. Why shouldn't they?
49:13What were they written for?
49:14Why did they write the Bill of Rights?
49:17They practically all relate to the way cases shall be tried.
49:22And practically all of them make it more difficult to convict people of crime.
49:27What about guaranteeing a man a right to a lawyer?
49:30Of course that makes it more difficult to convict him.
49:33What about saying he shall not be compelled to be a witness against himself?
49:38That makes it more difficult to convict him?
49:41What about no such unreasonable search as Caesar shall be made?
49:45That makes it more difficult.
49:47They were written to make it more difficult.
49:51Black could protest in his time-honored way.
49:54There are the words in black and white.
49:57But the country around him was changing.
50:04No one saw the change more clearly than the GOP nominee for president in 1968.
50:15Some of our courts, in their decisions, have gone too far in weakening the peace forces as against the criminal
50:22forces in this country.
50:27Crimes of violence in the United States have almost doubled in recent years.
50:32Today, a violent crime is committed every 60 seconds.
50:36Richard Nixon has a way to win.
50:38Richard Nixon has a heyday with these rulings, particularly Miranda.
50:41He says that the Warren Court has been coddling criminals.
50:44And he sets out to win the White House in part based on the idea that he will appoint new
50:50justices to the Supreme Court.
50:51And it will get worse unless we take the offensive.
50:56Freedom from fear is a basic right of every American.
50:59We must restore it.
51:03Some of our courts and their decisions have gone too far.
51:06Nixon may not have known what to do about the riots in the cities, or about Vietnam.
51:11But he knew who he wanted to run against.
51:14If he could put together fear of crime in the big northern cities with the South's resentment of the Warren
51:19Court,
51:20that combination would be a winner.
51:24Nixon would try to turn the court away from its agenda of civil rights and personal rights.
51:30To take the restraints off of government power.
51:32To usher in the counter-revolution.
51:36I, Richard Billhouse Nixon, do solemnly swear.
51:40That you will faithfully execute the office.
51:43That I will faithfully execute the office.
51:45The irony is palpable.
51:47Warren administers the oath of office to a man who, when he ran for president,
51:52ran for president to change in part the court that Warren had created,
51:57the constitutional vision that Warren had created,
51:59Warren's notion of what is just and right.
52:02And what really is, in Warren's sense, America.
52:05So help you God.
52:06So help me God.
52:19Hugo Black was approaching his 83rd birthday.
52:22The end of the long game.
52:25But he was still playing.
52:27Maybe he thought he could outlast Nixon.
52:29More important, after 32 years on the court, he knew what he'd done.
52:40I think he let January 20th, 1969, pass without being very upset about it.
52:48I think he thinks the election of a mere president is not likely to change what has been put in
52:55place by the court.
52:57The court had accomplished so much.
52:59I mean, no one would have thought, from the vantage point of the late 1930s,
53:04that the court would be able to take on racial segregation, eliminate all the Jim Crow laws,
53:10protect rights of citizens against state government in the police stations and in searches and in seizures.
53:15No one would have thought all that could have been accomplished.
53:24For more on landmark cases, the personalities behind the robes, and significant moments in Supreme Court history, visit pbs.org.
53:39The Supreme Court series is available on DVD for $79.99.
53:44A companion book is available for $25 plus shipping.
53:48To order, call 1-800-336-1917 or write to the address on your screen.
53:55The Supreme Court series is available on anywhere in 2015.
54:04www.haskarwamy.com
54:10To order, call 2-800-336-1917, report nosso LC made credit for $80.99.
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