Though my latest book is about Robert Jackson, my teaching this semester caused me to reflect on how much Justice Black shapes our constitutional world. Here are some examples:
- Incorporation of the Bill of the Rights. We basically take this for granted now, but he was a leading voice on that issue.
- Robust protection for free speech. Ditto.
- Skepticism about unwritten rights. While Black’s Griswold dissent is not the law, the underlying rationale largely is.
- Originalism. Black was one of the Court’s early great originalists.
I could go on. The caveat is that there is not a canonical Black opinion for the Court. There are terrific separate opinions, but none that you see in a casebook. Likewise, his important majority opinions (say, Gideon v. Wainwright) are not on the subjects that I just listed. Black was a good writer, thus I’m not sure why his influence isn’t matched by more visible indications today