Vol. 2 No. 5 (May, 1992) pp. 72-74
OF POWER AND RIGHT: HUGO BLACK, WILLIAM O. DOUGLAS, AND AMERICA'S
CONSTITUTIONAL REVOLUTION by Howard Ball and Phillip J. Cooper.
New York: Oxford University Press, 1992. 390 pp. Cloth $29.95
Reviewed by John E. Finn, Department of Government, Wesleyan
University.
OF POWER AND RIGHT is a "dual biography" of Justices
Hugo Black and William O. Douglas. One might wonder whether such
a book is necessary. After all, we hardly lack material on Black.
In addition to Black's own works, we possess studies by Tinsley
Yarbrough (1988), Mark Silverstein (1984), James Magee (1980),
and Gerald Dunne (1977). The literature on Douglas is no less
voluminous. Douglas wrote three autobiographies, and there are,
among others, fine studies by James Simon (1980) and Vern Coun-
tryman (1974). Nor do we lack histories of the Courts on which
they served.
So why read OF POWER AND RIGHT? Ball and Cooper tell us how two
markedly different men came to "share a partnership and a
contest." In recounting the story, they promise us a unique
perspective on the Supreme Court as an institution. OF POWER AND
RIGHT also promises us an education in the fundamental conflict
of American constitutional life, the tension between a democratic
conception of political power and the protection of individual
liberty.
In many ways, OF POWER AND RIGHT is a success. Its discus- sion
of the relationship between Black and Douglas is discerning. Ball
and Cooper capture the essential differences between the two men,
differences that traced their origins, as Ball and Cooper so
vividly demonstrate, to their personal and professional lives
before they were appointed to the Court. The authors deserve
special praise for their decision to include a chapter on the New
Deal backgrounds of Black and Douglas, in which they detail Hugo-
to-Hell Black's stormy career in the Senate and Douglas's contro-
versial years at the Securities and Exchange Commission. Their
political backgrounds, the authors argue, contributed to Black
and Douglas's harsh criticism of the Court before Roosevelt put
their names in nomination.
The book also realizes its attempt to tell us something of the
Court as institution. Drawing extensively on the private papers
of several justices, Ball and Cooper chronicle the inter- nal
dynamics of the post-New Deal Court as it struggled to find its
place in America's constitutional revolution. Ball and Cooper
picture a Court sensitive to law, politics, and sometimes
personality. Their treatment of the very public dispute between
Justices Black and Jackson, for example, is measured and fair, as
is their discussion of the antagonism between Justices Douglas
and Frankfurter. The book is especially moving when it chroni-
cles Black's departure from the Court and Douglas's reaction to
the loss of his colleague and friend.
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Unfortunately, the book is less successful in its other purpose:
to tell us something about the constitutional tension between
democratic power and individual right. Scattered summa- ries of
Black's and Douglas's constitutional philosophies appear
throughout the book; they feature most prominently in the chap-
ters that address specific areas of constitutional law. In
general, however, these treatments are far too brief and mislead-
ingly simple. The problem is partly reflected in Ball and
Cooper's decision to associate Black with power, and Douglas with
right.
Unadorned, constitutional positivism is, as Ball and Cooper
suggest, a theory of the constitutional order that emphasizes the
power of the people to govern. Similarly, a commitment to the
priority of individual liberty, is, in its simplest forms, a
theory of the constitutional order that emphasizes not power but
right. As held by Black and Douglas, however, these philosophies
are profoundly complex. Theories of constitutional interpreta-
tion premised upon power or right, for example, necessarily imply
somewhat different attitudes toward the proper use of judicial
power and somewhat different approaches to constitutional inter-
pretation.
Throughout much of their career together, Black and Douglas could
work together despite differences in their understanding of
constitutional government, for only occasionally did they lead to
disparate decisions. In the last decade of their time together,
however, the Court began to address issues, notably concerning
privacy and equality, in which implicit differences became
manifest. Black and Douglas increasingly found themselves on
separate sides in important cases, such as Griswold v. Connecti-
cut (1965).
Ball and Cooper tell us about the parting and that it sprang,
ultimately, from differences in constitutional philoso- phy. But
because their discussions of constitutional philosophy largely
proceed piecemeal, only readers already familiar with the
intricacies of constitutional interpretation are likely to
appreciate fully how theories of power and right figured both in
contests over constitutional interpretation and over the proper
extent of federal judicial power. The complexities of their
constitutional theories, then, no less than Black and Douglas's
political experiences in the Senate and the SEC, warrant a
separate chapter early in the book.
Notwithstanding this omission, OF POWER AND RIGHT is an
impressive study of a friendship that endured three decades and
conquered formidable differences in style, temperament, and,
finally, constitutional philosophy. Comprehensive, engaging, and
sometimes moving, this is a book all students of the Court should
read.
References:
Countryman, Vern. THE JUDICIAL RECORD OF JUSTICE WILLIAM O.
DOUGLAS. Cambridge, Mass.: Harvard University Press, 1974.
Page 74 follows:
Dunne, Gerald T. HUGO BLACK AND THE JUDICIAL REVOLUTION. New
York: Simon and Schuster, 1977.
Magee, James. MR. JUSTICE BLACK: ABSOLUTISM ON THE COURT. Char-
lottesville, Va.: University Press of Virginia, 1980.
Silverstein, Mark. CONSTITUTIONAL FAITHS: FELIX FRANKFURTER, HUGO
BLACK, AND THE PROCESS OF JUDICIAL DECISION MAKING. New York:
Cornell University Press, 1984.
Simon, James. INDEPENDENT JOURNEY: THE LIFE OF WILLIAM O. DOUG-
LAS. New York: Harper and Row, 1980.
Yarbrough, Tinsley. MR. JUSTICE BLACK AND HIS CRITICS. Durham,
N.C.: Duke University Press, 1988.