Justice Eugene F. Black: The Dissing Dissenter (Black)

Justice Eugene F. Black

Former Michigan Supreme Court Justice Eugene F. Black

Thanks to Graham Bateman for turning Lawhaha.com on to a real character: Justice Eugene F. Black, a judge whose inflammatory dissent-writing makes caustic U.S. Supreme Court Justice Antonin Scalia’s dissents read like love letters in comparison.

Black regularly lashed out at his colleagues on the Michigan Supreme Court, on which he served from 1956-72, holding their feet to the fire when he saw their actions as reckless, destructive, deceptive, partisan, or willful.

For being so outrageous in his outrage, and for having such a sharp, articulate poison pen, Justice Black lands in the Strange Judicial Opinions Hall of Fame.

Black was a judge who took to heart the words of Benjamin Cardozo’s famous ode to dissent-writing, which Black quoted in Guilmet v. Campbell, 188 N.W.2d 601, 611 (Mich. 1971):

Comparatively speaking at least, the dissenter is irresponsible. The spokesman of the court is cautious, timid, fearful of the vivid word, the heightened phrase … Not so, however, the dissenter. He has laid aside the role of the hierophant, which he will be only too glad to resume when the chances of war make him the spokesman of the majority. For the moment, he is the gladiator making a last stand among the lions. (From Selected Writings of Benjamin Nathan Cardozo 353 (Fallon Publications 1947))

Justice Black may have been a gladiator, but I suspect his colleagues had a few other names for him. He wasn’t satisfied to simply disagree in his dissents. He liked to rip his colleagues to shreds in the process. Guilmet provides a good example. The majority held in favor of the plaintiff in a breach of contract action against a surgeon. Black’s dissent began like this:

In these early weeks of 1971 an exuberant new majority of a once great appellate court prepares to launch an unwarned, unprecedented, wholly gratuitous and destructively witless war of “contract liability” upon a brother profession ….

He was just getting warmed up. A little later, he said:

As against this there is no pretense of proffered authority or precedent. My Brothers five just say “This is the law.” That they do with an arrantly dixitized vengeance, for all of the skilled research clerks of Lansing, working with no surcease and without food or drink, never could come up with any kind of respectable or even plausible authority [for the court’s holding].

And then later:

Thus far there appears to the writer still another like bushment the Court should see but does not see, or perhaps is too absorbed to see, dead ahead.

Other examples of Justice Black’s unique style of brethrenly love include:

In re Apportionment of State Legislature, 197 N.W.2d 249, 262 (Mich. 1972) (Black, J., dissenting) (“[T]oo much of that heady stuff known as partisan politics has been steamed into the present proceeding and … this partisan-nominated Court should disqualify itself ….”)

Plumley v. Klein, 199 N.W.2d 169, 173 (Mich. 1972) (Black, J., dissenting) (“The Court has chosen the sleaziest of pleaded causes as opportune for the nullification of [a prior case.] … I cannot hold still before this latest judicial monster.”)

Jones v. Bloom, 200 N.W.2d 196, 207–08 (Mich. 1971) (“[O]ur majority must have labored, conferred, caucused and searched … to find some or any colorable way to overrule [jury’s verdict] … Our reports … are on the shelves of thousands of lawyers and judges. They bear now undeniable witness of both a profaning and deplorable fact; that this temporally seated and largely fledgling Court is bent purposefully upon progressive destruction of all or near all of the great canons and precedential precept which the nationally revered Cooley Court, and the succeeding Fellows Court, have bequeathed to Michigan.”)

Don’t know the merits of any of these cases, but in a day of cautious and tepid judges, you gotta love a judge who was willing to tell it like is (at least as he saw it).

— Citations included in text above. Thanks to Graham Bateman.

8 comments to Justice Eugene F. Black: The Dissing Dissenter (Black)

  • Eugene Black

    This is awesome. I am in law school now and to see my great-grandfather’s writings and toughness come through his writings is incredible to read.

  • Mary Black

    That was Grandpa Black!!! A maverick in his profession.

  • Andrew J. McClurg

    Wish I could have met him!

  • I served with Gene Black on the Michigan Supreme Court from 1967 through 1972. He was a curmudgeon all right, but curiously vulnerable. He spent one day at the Detroit College of Law, decided it was a waste of time and went home to Port Huron to clerk in a law office until he could take the Bar Exam. I don’t think he ever went to college. He had an encyclopedic vocabulary, which he used to pummel his highly educated colleagues. He was elected Attorney General of Michigan on the Republican ticket in 1946, later nominated for the Supreme Court by the Democrats in 1956. He had no office in Lansing and never stayed overnight, commuting about 140 miles on two-lane roads every day. His office was the converted back porch of his home on the Black River. Even into his seventies, he mowed a two acre lawn with an old fashioned hand pushed lawn mower. No saint, but quite a guy. They don’t make ’em like him any more.

  • Elizabeth Black Kellogg

    My Grandpa was a truly amazing man! He lived his life with true integrity and honesty unlike so many others. So proud to be a true Black. My Grandpas legacy will always be remembered.

  • Jeffrey Eugene Land

    Grandpa Black was a great man. There was never any grey area with him. There was “right” and there was “wrong”. I miss the days of making sled runs down the hill to his home on Black river. Great memories.

  • STEVE LAND SR

    THIS IS MY GRANDPA. HE IS THE GREATEST MAN I HAVE EVER KNOWN AND PROBABLY WILL EVER KNOW MAY GOD BLESS HIM

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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