Secrets and the Supreme Court: The Strange Case of Justice Hugo Black

Will Fassuliotis ‘19
Guest Columnist

            There are many reasons one may keep a secret. A secret may be innocuous, but rather embarrassing––no need to share it. You may need to keep a secret for the safety of friends or family. A friend may come to you in confidence, seeking advice on a sensitive mater.

Hugo Black in 1937. Photo courtesy Library of Congress

Hugo Black in 1937. Photo courtesy Library of Congress

            All of these sorts of secrets are understandable and often even defensible. Some secrets are understandable, but morally less defensible. You might hold a secret for base reasons, that were your secret public, others would fundamentally change their view of you. And with that fundamentally different view, an objective you have long sought (perhaps a job or award) would no longer be obtainable, or, having reached that objective, it is taken from you. As if to demonstrate that these are universal concerns, this series, which began as an allusion to the Ford/Kavanaugh accusations, applies equally well to contemporary events in our Commonwealth. The Governor, Lieutenant Governor, and Attorney General are all under the cloud of past actions––some pictured, some alleged, and some admitted––which had they been known, would have altered the course of their political trajectories.

            When Justice Hugo Black retired on September 17, 1971, few were likely thinking of Black’s old secret. Black served thirty-four years on the bench (longer than all but four other justices), so how bad could it have been? Between 1923 and 1925, Hugo Black was a card-carrying member of the Ku Klux Klan.

            That bad.

            When Franklin Roosevelt nominated then-Senator Black (D-Ala.) to the Supreme Court in 1937, his membership was unknown. There had been some rumors, but at the time nothing substantiated. Roosevelt supported Black because Black supported him in the Senate: on the New Deal, on the court-packing scheme, and various other aims, Black was a rare non-conservative Southern Democrat. When Justice Willis Van Devanter, one of the “Four Horsemen” who frustrated Roosevelt, stepped down, the Senator from Alabama seemed an obvious choice. After some discussion of technical constitutional issues surrounding Black’s appointment,[1] Black was easily confirmed, 63–16. With his commission in hand, Black left for vacation in Europe.

            While overseas, the Pittsburgh Post-Gazette confirmed his membership in the KKK, including getting hold of Black’s 1925 resignation letter. Even more damning were the reports of speeches thanking the support of the Klan for their support in his first run for the Senate, as well as accepting a “grand passport” from the KKK, both after he resigned from the group. The author of the Post-Gazette’s reports opined that “the note of resignation was a deliberate ruse, designed to protect the Klan’s political candidate.” Many senators said had they known of his membership in the Klan, they would not have voted for him. Calls for Black’s resignation grew louder. Many wondered what Roosevelt thought. In this era, the Klan was not only anti-Black, but vehemently anti-Catholic and anti-Jewish as well. FDR was no friend of the KKK; he supported Al Smith, a Catholic hated by the Klan for his Catholicism, for President in 1928. But when the news came out, Roosevelt remained silent, waiting to see how Black would defend himself.

            When Black returned from Europe, he decided to address the nation over the radio, “in a way that cannot be misquoted and so the nation can hear it.” On October 1, 1937, he admitted the truth, “I did join the Klan.”[2] But, he continued, “I later resigned. I never rejoined. I completely discontinued any association with the organization…Before becoming a Senator I dropped the Klan. I have had nothing to do with it since that time.” Black emphasized his views, that “I have no sympathy with any group which, anywhere or at any time, arrogates to itself the un-American power to interfere in the slightest with complete religious freedom.”

            After a terrible secret is revealed, the next question is often one of forgiveness. What can a person in a place of public trust do to earn forgiveness? Should forgiveness even be allowed? The people of 1937 forgave Black: prior to his speech, a poll showed 59 percent of Americans believed Black should resign, after his speech, only 44 percent thought he should. In retrospect, we can see his Klan ties did not prejudice him. In his obituary, The New York Times wrote that Black “[made] his mark as a champion of civil rights and liberties,” [3] joining Brown v. Board of Education, and authoring Griffin v. School Board, which effectively ended “Massive Resistance” in Virginia. If the Ku Klux Klan was hoping Black was one of them, they were sorely mistaken. Of course, it is much easier to forgive looking back than it is at the time. 

            At least one more secret would surround Justice Black’s vacated seat. Most accounts say President Nixon wanted to ask Representative Richard H. Poff (R-Va.) to fill Black’s seat. Poff’s son was adopted, and the son did not yet know that. Poff was not yet ready to tell his son and was concerned that reporters would find out about the adoption and publicize the fact. In order to protect his son, Poff preemptively declined any nomination. Instead, Lewis F. Powell, Jr. was nominated and confirmed to Black’s seat. The benefits of Poff’s sacrifice were short-lived, however, when a reporter publicly revealed the adoption anyway.[4]

            While not quite on par with Aesop’s Fables, a story like this must have a moral. This author suggests: “Do nothing secretly; for Time sees and hears all things, and discloses all.”[5] But if this is too abstract, remember, “Three may keep a Secret, if two of them are dead.”[6]

[1] For the story of why Black was nominated to the Supreme Court, as well as a discussion of the constitutional issues, see American Heritage’s “Hugo Black and the K.K.K.,” available at <>.

[2] The speech is available on YouTube, entitled “Supreme Court Clips: Hugo Black's 1937 radio address about KKK membership,” at <>.

[3] “Justice Black Dies at 85; Served on Court 34 Years,” September 25, 1971. The obituary includes Black’s reason for joining the Klan, as explained decades after the fact. At the time, Black was a trial lawyer. Opposing counsels as well as jurors were all members of the Klan, so, ostensibly, joining was a way to even the odds at trial.

[4] Poff was a graduate of the University of Virginia School of Law; thus, this sequence of events robbed this Law School of a second justice to sit upon the Supreme Court.

[5] Sophocles, Hipponous, fragment 280.

[6] Benjamin Franklin, Poor Richard's Almanack.