The Senior Justice Retires

After 34 years on the nation's highest bench--the third longest tenure of any Justice--Hugo Lafayette Black, 85, last week informed the President that he was resigning immediately because of failing health. Thus facing with characteristic directness what his mind and conscience commanded, Black ended a career that, by virtue of its length and intellectual power, has placed him among the handful of the nation's very greatest jurists.

Since last month Black has been in Bethesda Naval Hospital, where doctors say he has a potentially serious inflammation of the blood vessels. President Nixon is known to be considering seven possible successors for the position. One leading contender is said to be Republican Representative Richard Poff of Virginia, a constitutional law specialist, a friend of Attorney General John Mitchell and a Southerner, apparently in the strict constructionist mold Nixon has frequently endorsed.

Dissents into Law. His appointment would mean a further step in Nixon's effort to move the high bench away from the judicial activism of the Warren Court.* Since many feel that the era should more properly be labeled the "Black Court," it is fitting that its end may be marked by the senior Justice's retirement. Born in a tiny cabin in Harlan, Ala., Black made his way to the U.S. Senate in 1927 on a platform of populism. As a loyal New Dealer, he was Franklin Roosevelt's first appointment after the F.D.R. court-packing plan had failed. Black's entry to the court was stormy, as newspaper stories revealed he had once been a Ku Klux Klan member. He conceded the affiliation but said it was in the past.

By turns tart or tomelike, Black's opinions initially were mostly dissents, but in the '50s his spare, step-by-step reasoning began attracting a majority. His reasoning served as backbone to such breakthrough decisions as those enforcing Southern school desegregation, expanding the rights of criminal defendants, and requiring state legislatures to be apportioned on a one-man, one-vote basis. His longest fight was a largely successful effort to expand application of the Bill of Rights beyond the federal structure to state courts and agents as well. Despite his acknowledged eminence among colleagues, he remained an unprepossessing figure, standing daily in a Government cafeteria line for lunch. His one nonjudicial passion: tennis, which he played for up to four hours at a stretch.

Black's bible was the Constitution, a well-riffled pocket copy of which he always carried. He believed in enforcing it whatever the consequences and he refused to substitute his judgment, no matter how worthy he thought the cause.

No Surrender, Nowhere was that view clearer than in Black's absolutist interpretation of the First Amendment as protecting all speech, yet he found that the amendment's wording could not be extended to protect such actions as flag or draft-card burning. Last year Black wrote: "I believe the court has no power to add to or subtract from the procedures set forth by the Founders. I shall not at any time surrender my belief that that document itself should be our guide, not our own concept of what is fair, decent and right."

* Justice John Harlan, 72, a very distant cousin of Black's, is also hospitalized. Should he resign, too, Nixon would have his fourth vacancy to fill.

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