• Professor Christopher Schmidt

    Christopher W. Schmidt

    Assistant Professor of Law

    – Go to his faculty biography

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    Schmidt — What I’m Looking Forward To: A Companion to American Legal History

    by  • March 1, 2013 • Faculty Commentary, Scholarship • 0 Comments

    Originally posted Feb. 28 at the Legal History Blog, to which Professor Schmidt guest-contributes regularly. In this post, Professor Schmidt discusses an essay he contributed to a forthcoming book titled A Companion to American Legal History.

    By Christopher Schmidt


    On April 15, A Companion to American Legal History, edited by Sally Hadden and Al Brophy, will be published. The volume, part of the remarkably useful Blackwell Companions to American History series, includes twenty-eight essays, organized into four sections: (1) Chronological Overviews; (2) Individuals and Groups; (3) Subject Areas; and (4) Legal Thought. Sally and Al lined up a terrific group of contributors to tackle the wide-ranging topics included in the volume. (Among the contributors are the Legal History Blog’s own Karen Tani, who co-authored, with Felicia Kornbluh, an essay on “Siting the Legal History of Poverty: Below, Above, and Amidst,” and Clara Altman, who wrote an essay on “The International Context: An Imperial Perspective on American Legal History.”)

    This is such an impressively ambitious project and is sure to provide an indispensible resource for legal historians. I had a chance to read a number of the essays in draft, and they were all excellent: filled with information and citations yet also readable and engaging. They offer an easy way to get up to date on various areas of legal history. I am really looking forward to having the final product on my desk.

    You can get a preview of the book now on Amazon. The preview includes the table of contents and excerpts from many of the entries. You can also read Sally and Al’s lovely brief introduction to the volume. The publisher’s site also has some preview material, including the full text of Elizabeth Dale’s opening essay, “Reconsidering the Seventeenth Century: Legal History in the Americas.”

    As to my own contribution to the Companion, I was invited to write an essay on the legal history of the period between 1920 and 1970. In 8000 words. Including references. It was by far the hardest 8000 words I ever
    produced. My job was made somewhat easier by the fact that many issues were already well covered in the topical essays. But still, this was an intimidating—and often deeply frustrating—assignment. I felt like I spent as much time struggling over what not to talk about as I did over what I actually did cover. In the end, I just had to make the hard choices, explain why I think they make sense, and hope the essay coheres in a way that is both useful and insightful.

    For an overriding theme, I focused on the decline of the grand narrative of liberalism’s ascent and entrenchment, and its replacement with scholarship that is more attentive to liberalism’s alternatives and more eclectic (less top-down) in its orientation. Here are the opening two paragraphs of the essay:

    Historical scholarship on the United States between 1920 and 1970 has traditionally centered on the rise and dominance of liberal thought and policy. The liberal project in twentieth-century America was dedicated to the application of governmental power and expertise to address society’s most glaring vulnerabilities and inequities. Between 1920 and 1970 the nation faced a series of fundamental challenges – the Great Depression, World War II and then the Cold War, a succession of social movements by African Americans, women, and other disempowered groups demanding full benefits of citizenship. Each destabilized traditional (often localized or non-governmental) bases of authority; each made new demands on government. The result was an “age of reform” (Hofstadter, 1955), characterized by a steady, seemingly ineluctable expansion of the reach of the formal legal authority, particularly at the federal level. Coming to terms with what appeared to be a durable consensus around modern liberalism as political ideology and practice was the central goal of historical scholarship from the 1940s through at least the 1980s. As law was the primary tool of liberal reform, and lawyers and judges leading figures, the work of legal historians generally fit comfortably within this story (e.g., Murphy, 1972).

    Over the past twenty years or so historians have challenged this story of liberalism’s ascent and entrenchment. With the emergence of a powerful conservative social, political, and legal movement in the post-1970 period, liberalism’s triumph in the middle decades of the twentieth century appears more qualified, more tenuous. Legal historians have highlighted forgotten or under-appreciated voices of dissent to liberalism – those on the political left as well as the right (and those who resist easy ideological categorization) who questioned the drive toward top-down, centralized approaches to social regulation, the commitment to litigation and rights as tools of social reform. They have given more attention to legal work (broadly defined) taking place outside the courts – in legislatures, administrative agencies, and various informal settings far from the world of elite lawyers and constitutional doctrine. While the Supreme Court still looms large, the best legal history situates the Court within its social, political, and legal context, generally locating the wellsprings of social change in these extrajudicial settings.

    And here is another excerpt, taken from my conclusion:

    The general trend of the law in the middle decades of the twentieth century was unmistakable. Government was doing more – regulating more, taxing more, providing more. This was a period of particularly explosive growth of federal authority, with the national government assuming unprecedented levels of responsibility over the lives of the American people. After largely abandoning oversight of economic regulation, judges located new grounds from which to assert their authority, transforming the courts into a critical player in protecting individual rights.

    Yet beneath this apparent institutionalization and entrenchment of a liberal consensus, there were also crosscurrents and resilient counter-narratives. Antistatism and localism remained potent factors in American legal culture. So did skepticism toward the courts, led by those who were critical not only of the substance of judicial reforms but also of the idea that courts should try to resolve contentious social issues. By the late 1960s liberalism’s critics, from the left as well as the right, were proving persuasive to growing numbers of Americans.

    If one were to identify a single overarching trend in how a recent generation of legal historians has written about the 1920–1970 period, it would be the increased recognition of the significance of these crosscurrents and counter-narratives. Historians today see the liberalism’s supposed triumph as, at best, a qualified victory. It was qualified in that liberalism’s professed goals – reducing racial inequality, making a fairer criminal justice system, creating a social safety net – remained far from realized. It was qualified in that liberalism’s dominance marginalized potentially valuable alternative voices. And it was qualified in that one of its most lasting legacies was the resurgence of a conservatism that was dedicated to undoing much of what liberals had accomplished.

    The revised portrait of the legal history of the twentieth century lacks some of the dramatic narrative arc of the liberalism triumphant storyline. The turning points are no longer so sharp, the antagonists no longer so clearly defined. The current generation of scholarship has more centrifugal tendencies than its predecessor. It has traded a measure of coherence and clarity for a somewhat messier, pluralist reality, in which the project of legal development is diversified, bringing in more actors – elite and non-elite, formally trained in the law and lay persons – acting in more variegated settings. The challenge going forward will be for legal historians to locate analytical frameworks and narratives that are sufficiently robust to draw together disparate scholarly projects, while minimizing the constraints that invariably accompany these
    frameworks and narratives.

    Schmidt — Gay Marriage and the Supreme Court: Using the Past to Predict the Future

    by  • February 28, 2013 • Faculty Commentary • 0 Comments

    Originally posted Feb. 26 at the Legal History Blog, to which Professor Schmidt guest-contributes regularly. This is the second post in which Professor Schmidt discusses From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage, a new book by legal historian Michael Klarman.

    By Christopher Schmidt


    In my last post I discussed Michael Klarman’s recently published book, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford, 2012). I described Klarman’s history of the gay rights movement and his consideration of what this history may tell us about the phenomenon of political backlash to court decisions. In this post I turn to the last chapter of From the Closet to the Altar, in which Klarman offers some predictions about what we might expect with regard to gay marriage debate, including the possibility of the Supreme Court attempting to resolve the issue.

    Klarman’s one big prediction is hard to argue with: “If any social change seems inevitable, it is the growing acceptance of gay equality generally and gay marriage specifically.” This is a trend driven both by
    demographics (support for gay rights is strongest among youth) and by cultural changes. The trend is also driven by the self-reinforcing nature of gay rights advances. As Klarman observes, “the greatest increases in support for gay marriage in the last fifteen years have come in the states that already were the most supportive of gay rights.” Societal acceptance of homosexuality, once it begins to take hold, has a tendency to gain momentum.

    What role is the Supreme Court likely to play in this story? Klarman’s book went to press before the Supreme Court agreed to hear the cases involving the federal Defense of Marriage Act and California’s Proposition 8,
    the state referendum banning same sex-marriage that both a federal district court and the Ninth Circuit have ruled unconstitutional. (The justices will hear oral arguments next month.) But Klarman does offer some “informed speculation” on how the Court might deal with the issue.

    On DOMA, he writes: “One can easily imagine a Court composed of liberal justices who probably sympathize with gay marriage and conservative justices who believe in states’ rights agreeing to invalidate DOMA on the
    ground that the federal government should not be involved in defining marriage.”

    What about a Supreme Court ruling striking down, on constitutional grounds, state laws limiting marriage to the union of a man and a woman? Viewed in the long term, this, according to Klarman, is an easy issue to predict. “Once public opinion has shifted overwhelmingly in favor and many more states have enacted gay marriage, the Court will constitutionalize the emerging consensus and suppress resisting outliers. That is simply how constitutional law works in the United States.”

    But even if we assume that the Court will be responsive to a durable cultural and political transformation, critical questions about the timing and scope of this response remain. This is where the prediction game becomes far trickier.

    On the Supreme Court today, there are no sure-fire votes in favor of a sweeping ruling finding a constitutional right to gay marriage. The liberal justices who are most likely to sympathize with the cause of marriage
    equality will surely be concerned about the risk of having the Court push too far ahead of society. (This was the reason, for example, the Court delayed striking down prohibitions on interracial marriages for so long—Loving v. Virginia (1967) came thirteen years after Brown.) Klarman notes that Justice Ginsburg has criticized Roe v. Wade for doing just this. But with public opinion moving so clearly in one direction, and with a steady stream of new legislative and judicial victories for gay marriage, it is simply hard to predict when the liberal justices will feel the conditions are right for the Court to intervene.

    Then we have the enigma of Justice Kennedy. Assuming the liberal wing of the Court lines up in favor of a broad pro-gay marriage ruling, then, in all likelihood, Kennedy (yet again) will become the swing vote.
    What might he do in such a situation? Kennedy “has often taken dominant national norms, converted them into constitutional mandates, and then suppressed outlier state practices,” Klarman writes. His major death penalty decisions and Lawrence v. Texas (2003) fit in this category. This approach would indicate that a ruling locating a right to gay marriage in the Constitution is still some ways off. Although opinion polls recently crossed the fifty-percent threshold in favor of gay marriage, the dominant legal rule in the nation still prohibits gay marriage. Yet Kennedy has also distinguished himself as particularly willing to lead the Court when it comes to issues of gay rights. He was, after all, the author of the pro-gay rights decisions in Romer v. Evans (1996) and Lawrence.

    Although at this point the smart money surely is still on the Court refusing to recognize gay marriage as constitutionally required, Klarman offers a particular thought-provoking suggestion about the role that history—and a justice’s sense of historical legacy—might play in pressing the Court to take the step that in the long run seems so inevitable. “What justice,” he asks, “would not be tempted to author the opinion that within a few short years likely would become known as the Brown v. Board of the gay rights movement? Justice Kennedy would have the option of writing that opinion if he wished to do so.”

    And so we wait and see.

    Schmidt — Gay Marriage, the Courts, and the Lessons of History

    by  • February 28, 2013 • Faculty Commentary • 0 Comments

    Originally posted Feb. 24 at the Legal History Blog, to which Professor Schmidt guest-contributes regularly. In this post, Professor Schmidt discusses From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage, a new book by legal historian Michael Klarman.

    By Christopher Schmidt


    The cause of gay marriage has made remarkable breakthroughs recently. There were the November victories at the polls: Maryland and Washington voters ratified legislation allowing same-sex marriage, Maine approved a ballot initiative allowing same-sex marriage, and Minnesota became the first state to reject a ballot initiative to constitutionally prohibit same-sex marriage. There was President Obama’s embrace of the cause in his inaugural address, where, with his memorable reference to “Seneca Falls, and Selma, and Stonewall,” he framed gay rights as the necessary next step of the struggle for equality. And now we are looking at a Supreme Court poised to consider the issue in a pair of cases scheduled for argument in March.

    Of course these historic developments are still unfolding, and they are sure to occupy historians for generations to come. While we wait to see how all this will play out and look forward to the historical assessments still to be written, what insights might legal historians have to offer about the struggle for gay rights thus far? How has this struggle fit into existing models of law, the courts, and social change, which have generally relied upon the struggles for racial and gender equality as their touchstones?Fortunately, Michael Klarman, one of the leading legal historians of our day, has written a fantastic new book that gives us much information and many provocative insights on the battle for marriage equality, the courts, and possible lessons of history.

    The contributions of From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage
    (Oxford, 2012), can be broken down (with some simplification) into three categories: history, theory, and prediction. In this post I will explore the first two; in my next post I will discuss Klarman’s thoughts about how the Supreme Court will likely deal with gay marriage.

    Most of From the Closet to the Altar is comprised of a history of the gay rights movement, from the 1950s to today, with a focus on the courts and the struggle for marriage rights. Klarman charts how the issue of gay marriage, which was far down the priority list for most gay activists in the early stages of the movement, eventually emerged as a viable issue—today even an inevitable one. He gives particular attention to the effects of judicial interventions, and the counter-mobilization responses of opponents of gay rights. Klarman’s engaging, fast-paced survey of the gay rights movement is filled with insights and information. It is an invaluable resource for anyone looking for historical material to place current events into proper context.

    A second contribution of the book is more theoretical. Following the eight-chapter history of the struggle for gay rights, Klarman takes two chapters to present observations about the interplay between the courts and social change, using the history of gay rights and same-sex marriage as his primary case study. The still unfolding history of the gay rights movement generally confirms for Klarman the conclusions of his previous historical scholarship. The two overriding themes of his scholarship feature prominently in this new book: an assumption of judicial majoritarianism (courts rarely stray far from dominant public opinion); and an emphasis on what he describes in From the Closet to the Altar as the “unexpected, wide-ranging, and conflicting” consequences of court decisions.

    The consequence of court rulings that is of central concern for Klarman is the phenomenon of political backlash. He is well known for his argument that the most significant effect of Brown v. Board of Education was not in inspiring civil rights activists or in desegregating schools, but the newly energized white segregationist movement. This white segregationist backlash created its own backlash, however, as their hardline tactics (fire hoses, police dogs, standing in the schoolhouse door) ultimately moved white northern opinion toward more aggressive civil rights policy. Politically significant backlash effects, Klarman notes, can also be found in response to the Supreme Court’s rulings in Miranda v. Arizona (1966), Furman v. Georgia (1972), and Roe v. Wade (1973).

    The problem of political backlash to contentious court decisions is a central theme in From the Closet to the Altar. Reading through the history of the gay rights movement, Klarman identifies a recurrent two-steps-forward, one-step-back dynamic. Every victory for the movement seems to spur a resurgence of its opponents. After the Hawaii supreme court ruled in Baehr v. Lewin (1993) that a law limiting marriage to heterosexual unions constituted sex discrimination, the Hawaii legislature promptly and overwhelmingly passed a law defining marriage as the union of a man and a woman, numerous states easily passed laws refusing to recognize gay marriages from other states, and eventually Congress weighed in with the Defense of Marriage Act in 1996. After the Massachusetts supreme court found a right to same-sex marriage in its state constitution in the Goodridge decision (2003), conservatives latched onto the issue for political gain in the 2004 elections and a slew of states passed constitutional amendments limiting marriage to unions between a man and a woman. The general trend, Klarman emphasizes, is clearly in the direction of increased recognition of gay rights, but the path has been anything but steady.

    The history of the struggle for gay rights offers Klarman an opportunity to further explore, refine, and defend his backlash thesis (i.e., the argument that court decisions intended to advance a cause often spark political opposition that create new obstacles to that cause). In particular, Klarman considers the tension between backlash and his general observation that courts rarely step outside the confines of mainstream public opinion. Why is backlash such a recurrent phenomenon if the courts are basically majoritarian institutions? To this important question, Klarman offers several responses. He notes that while judges are responsive to the dominant norms of society, they are more insulated from public opinion than legislators, which means that judges may have more leeway to go against mainstream opinion and also that they are more likely to misread public opinion. Judges are more susceptible to elitist skews (they tend to be more responsive to those issues—including gay rights—that poll well among the better educated and wealthier). The law, in the form of judicial and constitutional norms, can, at times, increase the likelihood of politically unpopular rulings. Furthermore, even if public opinion supports a ruling, opponents of that ruling may be more intensely committed than its supporters and more able to exploit the ruling for political gain—key ingredients for effective oppositional mobilization. There is also the role of regional differences in support for an issue, which can concentrate and amplify both perceived support for an issue and oppositional efforts. All of these factors help to explain how the courts can be basically majoritarian institutions while also, with some regularity, issue rulings that inspire political backlash. In the struggle for gay marriage, all these factors are on display.

    In my next post, I will turn to the provocative last chapter of From the Closet to the Altar, entitled “Looking to the Future: The Inevitability of Gay Marriage.” Klarman here offers some predictions about what the Supreme Court is likely to do with a constitutional claim for marriage equality.

    Schmidt — Robert Bork and the Right to Discriminate

    by  • December 21, 2012 • Faculty Commentary, Scholarship • 0 Comments

    Originally posted Dec. 20th at the Legal History Blog, to which Professor Schmidt contributed several posts in November and December. In this post, Professor Schmidt mentions a forthcoming essay, “Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement,” set to be published in a collection of legal history essays this spring.

    By Christopher Schmidt


    Robert Bork, who died yesterday [Dec. 19, 2012], left a legacy that includes leading roles in several major events in American legal history—among them, his failed nomination to the Supreme Court in 1987 and his role in Nixon’s “Saturday Night Massacre” as the Watergate scandal unfolded in 1973. But Bork’s first turn in the national spotlight came in 1963, when he became a uniquely influential critic of what would become Civil Rights Act of 1964. Bork, an expert in antitrust law, had only recently left private practice to teach at Yale Law School when he published an article in The New Republic attacking advocates of national public accommodations legislation for failing to appreciate its costs for individual freedom. It was to this article that Senator Ted Kennedy referred when he announced, during Bork’s confirmation hearing, that “in Robert Bork’s America, there is no room at the inn for blacks.”

    Kennedy was wrong to smear Bork as a segregationist. Bork’s point was not to defend racial segregation. Indeed, in the article he explicitly denounced the practice. But Kennedy was not wrong to draw attention to Bork’s deeply problematic argument against the Civil Rights Act. The kind of liberty-based critique of antidiscrimination policy that Bork was articulating is a topic I explore in a forthcoming essay titled “Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement.” It will be included in Signposts: New Directions in Southern Legal History, a collection of seventeen essays, expertly edited by Sally Hadden and Patti Minter, which the University of Georgia Press will publish this spring.

    Bork’s New Republic article about the pending federal public accommodations bill has become probably the most famous defense of the “right to discriminate.” Bork began by separating himself from segregationist opponents of civil rights policy. He described the proposed legislation as based in “justifiable abhorrence of racial discrimination,” and he lamented that most critics of the law were “southern politicians who only a short while ago were defending laws that enforced racial segregation” and hence only opportunistic libertarians. Yet, Bork insisted, one may stand opposed to racial discrimination and still see something amiss in a national public accommodations law. “It is not whether racial prejudice or preference is a good thing but whether individual men ought to be free to deal and associate with whom they please for whatever reasons appeal to them…. The trouble with freedom is that it will be used in ways we abhor.” State enforced segregation was wrong, but so was state enforced integration in certain spheres of private relations. The principle behind the proposed law, Bork explained in the most widely quoted lines of the article, “is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. This is itself a principle of unsurpassed ugliness.”

    Predictably, the article became a favorite reference point for segregationists desperately looking for footholds from which to make their stand. Bork’s argument also found fertile ground in the new wave of libertarianism spearheaded by Barry Goldwater and his 1964 presidential campaign. Bork wrote a seventy-five page brief for Goldwater outlining the constitutional infirmities of the civil rights bill. It likely was influential with Goldwater, who ultimately voted against the Civil Rights Act.

    It is worth stopping for a moment to consider exactly why Bork’s argument has rightly earned the condemnation of history. (When, in 2010, Rand Paul, the newly elected U.S. Senator from Kentucky, attempted to revive some version of Bork’s argument, even his conservative allies told him to find a new issue to talk about.) It cannot be simply because judges have basically laughed such claims out of court whenever they appeared. In upholding the public accommodations provision of the Civil Rights Act in Heart of Atlanta Motel v. U.S. (1964), the Supreme Court summarily slapped down an array of long-shot “right to discriminate” claims. But just because a constitutional claim is not judicially cognizable does not mean that it is necessarily illegitimate in other institutional contexts. Furthermore, Bork was not wrong to insist that there are certain realms of private life in which government should not tell individuals with whom they can associate—who one invites to a dinner party, for instance, or to a book group or perhaps even to join a private club. Where Bork was wrong—where he was deeply, dangerously wrong—was in thinking that the operator of a restaurant or hotel or other privately owned public accommodations had some sort of liberty interest that outweighed the government interest in extinguishing the shameful practice of racial segregation from American society. While the general principle was not wrong, the application surely was.

    Thankfully, Bork lost this particular battle. It is important to recognize, however, that the more general argument in favor of a right to discriminate survived the civil rights movement. When employed in opposition to the desegregation of public accommodations, the argument failed to gain much adherence outside the Deep South. Its logic was too tangled, its implications too sweeping, its assumptions about the line between personal associations and public life too implausible in modern American life. Yet, by the late 1960s, when housing discrimination became a leading issue on the civil rights agenda, this rights claim, so improbable in its other applications, quickly became the argument of choice for open housing opponents throughout the nation.

    It was at least partly by design that claims of a right to discriminate were eventually picked up outside the South. Segregationists embraced the language of individual liberties because it provided a more politically acceptable way in which to resist civil rights, shifting the discussion of civil rights from a question of white supremacy versus equality toward a question of liberty versus equality. To recognize this turn to the language of freedom and rights was often flagrantly opportunistic and disingenuous does not take away from its effectiveness. For all the conspicuous failures of the libertarian challenge to civil rights it provided another way in which opponents of civil rights could effectively operate in a post-civil rights movement society. It provided a language through which conservatives could accept much of what the civil rights movement had accomplished, but also to insist that there should be limits to antidiscrimination policy. And these limits could be defended using the same tools that conservatives had been cultivating in other contexts: a commitment to limited government and a suspicion that excessive government regulation would lead the nation down a slippery slope to socialism, and a belief that the expansion of government power necessarily diminishes personal liberties. The argument that basic constitutional rights were at stake, that liberty must be championed alongside (or above) equality, opened the possibilities of creating alliances between defenders of segregation in the South and conservatives outside the South. Although Bork and other proponents of the right to discriminate failed in their effort to block the Civil Rights Act, their libertarian critique provided a potent common ground that helped unite the segregationist cause with conservatives around the country.

    Schmidt — Justice Black, Media Celebrity

    by  • December 13, 2012 • Faculty Commentary, Faculty Workshops/ Conferences • 0 Comments

    The following post originally appeared on the Legal History Blog, to which Professor Schmidt contributed several posts in November and December.

    By Christopher Schmidt


    Previously I wrote about Judge Posner’s recent lecture at Chicago-Kent’s Symposium on the Supreme Court and the American Public.  The judge took members of the Supreme Court to task for what he sees as their excessive and occasionally undignified roles as public intellectuals.  Although Judge Posner is certainly right that the frequency of justices participating in public intellectual activities has increased, there is a long and colorful history of members of the Supreme Court inserting themselves, for one reason or another, into public debate.

    At the same symposium, I gave a paper entitled “Beyond the Opinion: Why Do Supreme Court Justices Talk to the Public?”  My presentation revolved around a case study of Justice Hugo L. Black and his late-career experience as a reluctant but ultimately quite effective public figure.

    Justice Black spent most of his career on the High Court conscientiously avoiding making news for his off-the-bench activities.  His time on the Court had gotten off to an epically bad start when, just a month after being confirmed by his colleagues in the Senate, a journalist broke the story that the newest justice had been a member of the Ku Klux Klan in Alabama early in his political life.  Black, who was in Europe at the time, cut short his vacation and returned home to defend himself in a nationally broadcast radio address.  He basically said that he had been a member of the KKK but was no longer, and that his record in the Senate and his personal relationships with blacks, Catholics, and Jews showed that he was not a bigot.  (Newsweek’s headline following the speech: “I Did Join, I Resigned; The Case Is Closed.”)  The speech turned out to be remarkably successful in deflating the controversy.

    For at least two decades following this embarrassing episode, Black retreated from the public spotlight.  He would, as justices like to say, let his written opinions speak for themselves.  Through the 1940s and 1950s, as Black defined for himself in his judicial writings a distinctive approach to constitutional interpretation, as well as a notably accessible language of expression, he was regularly urged to present his views in a more public setting.  He refused.  “Should I conclude to deliver lectures anywhere,” he wrote to a friend in 1959, “it will be over the protests of certain inner voices that keep telling me that the best thing I can do is tend to my knittin’ here at home.”

    Eventually he did begin to accept a few of these invitations, however, and during the 1960s he delivered several much-discussed lectures and public interviews in which he laid out his views on the Constitution and the work of the Supreme Court.

    The highlight of Black’s late-life career as a public intellectual came in 1968 when the 82-year-old justice became the first justice to sit for a feature-length television interview.  CBS broadcast the interview on primetime on December 3, 1968.  His wide-ranging remarks made for surprisingly powerful television.

    Early in the interview, Black pulled a well-worn copy of the Constitution from his suit pocket.  “I don’t know it by heart,” he confessed.  “[M]y memory is not that good.  When I say something about it, I want to quote it precisely.”  When questioned about the attacks on the Court for its decisions protecting the rights of criminal defendants, Black went on the offensive.  “Well, the Court didn’t do it…. The Constitution-makers did it…. They were the ones that put in every one of these amendments…. And so, when they say the Court did it, that’s just a little wrong.  The Constitution did it.” He suggested that the Court’s implementation ruling in Brown v. Board of Education (1955), with its “all deliberate speed” formula, was ill-advised. (This was the page-one headline story in newspapers the following day.)  At one point, the 82-year-old justice picked up a volume of the U.S. Reports to read the concluding lines of his opinion in Chambers v. Florida (1940) in which he wrote that “courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.”  It left him wiping away tears. The interview was awarded an Emmy for the year’s best cultural documentary.

    (Full length audio of the interview is available through Oyez; the transcript of the interview was eventually published in Southwestern University Law Review 9 (1977): 937-951.)

    Justice Black could put on quite a show in these off-the-bench settings.  In terms of communicating with a general audience, in serving as a spokesperson for the Court, in expressing his deepest commitments about the law and the Constitution and the Court, in putting on display a sense of passionate commitment as well as gravitas, he might very well be unequaled among the Justices who have served on the Court.