Sutherland, George Summary

  • Last updated on November 11, 2022

Sutherland was the most intellectually able of a conservative bloc of justices who reaffirmed earlier tenets of individualism and limited government during the 1920’s and 1930’s.

Born in England, Sutherland immigrated with his parents to Utah before his second birthday. His parents came as Mormon converts; however, his father, Alexander variously a miner, storekeeper, and justice of the peace renounced Mormonism shortly after arriving in the United States. In his teens, Sutherland worked as a clothing store clerk, a mining recorder, and a Wells Fargo agent. In 1879 he entered Brigham Young Academy (later, Brigham Young University), where he was greatly influenced by the school’s president, Karl G. Maeser, a thoroughgoing believer in nineteenth century individualist philosophy. After graduation in 1881, Sutherland attended one term at the University of Michigan law school, where he absorbed the natural rights philosophy of Thomas McIntyre Cooley.Harding, Warren G.;nominations to the Court

Political Career

After returning to Utah, Sutherland quickly acquired a large legal practice and proved so politically adept that his earlier opposition to the Church of Jesus Christ of Latter-day Saints (Mormon) did not hinder his election as a Republican state senator in 1896. (Sutherland’s own religion seems to have been a vague, if optimistic, theism.) By 1901 Sutherland had been elected to the U.S. House of Representatives, and in 1905 he became a U.S. senator from Utah. In Congress, Sutherland was noted for his interest in labor legislation (especially seamen’s rights) and for his support of women’s suffrage and the federal judiciary.

George Sutherland

(Library of Congress)

Defeated for reelection in 1916, Sutherland practiced law in Washington, D.C., was elected president of the American Bar Association, and became an adviser to Republican presidential candidate Warren G. Harding. In 1922 President Harding named Sutherland to the Supreme Court; the Senate confirmed him by acclamation and without discussion on the day of his appointment. Sutherland found the Court under William H. Taft both personally and philosophically congenial. He sympathized with the judicial conservatism of the majority, and his amiable personality quickly won the friendship even of ideological opponents.

Restriction of Government Power

Sutherland’s first major decision, Adkins v. Children’s Hospital[case]Adkins v. Children’s Hospital[Adkins v. Children’s Hospital] (1923), struck down a District of Columbia law establishing a board to set minimum wages for women sufficient to “maintain them in good health and to protect their morals.” Ruling in favor of a woman whose job had been lost to a man, Sutherland argued that no board could determine the wage necessary to preserve health and morals and that forcing employers to pay wages without regard to the value of their employees’ work was a “naked, arbitrary exercise of power.” Predictably, the opinion aroused the ire of Progressives and organized labor, but it revealed Sutherland as a formidable exponent of economic conservatism, individual liberty, and the restriction of governmental power.

Sutherland’s decisions continued to champion the individual against governmental regulation. In Tyson v. Banton[case]Tyson v. Banton[Tyson v. Banton] (1927), he wrote for a majority who voided a New York law against ticket scalping. Fearing that such laws might lead to governmental price fixing “as a mere matter of course,” Sutherland maintained that theaters were not affected with a public interest and that therefore, sale of their tickets was outside regulatory purview. Likewise, in Liggett v. Baldridge[case]Liggett v. Baldridge[Liggett v. Baldridge](1928), the Court, through Sutherland, ruled unconstitutional a Pennsylvania law intended to shelter old businesses from competition by prohibiting anyone who was not a pharmacist from owning a drugstore.

In perhaps his most widely applauded decision, Powell v. Alabama[case]Powell v. Alabama[Powell v. Alabama] (1932) the first Scottsboro case, a contemporary cause c l bre Sutherland set aside the conviction of a young black defendant accused of raping a white girl. His decision declared the Sixth Amendment’s guarantee of counsel to those accused of a capital crime to be an “inherent right” and combined a historical survey of due process with long passages from the trial transcript, which revealed (at best) an inappropriate casualness in providing legal representation for unsophisticated teenagers in an intensely hostile environment.

On the other hand, Sutherland voted against individual rights in cases in which he believed they were outweighed by the national interest. Thus, in United States v. Macintosh[case]Macintosh, United States v.[Macintosh, United States v.] (1931), his opinion denied citizenship to a conscientious objector. Likewise, in United States v. Curtiss-Wright Export Corp.[case]Curtiss-Wright Export Corp., United States v.[Curtiss-Wright Export Corp., United States v.] (1936), he granted the president broad, extraconstitutional powers to regulate foreign affairs against the interest of private corporations.

The Court vs. the New Deal

The ruling in the Curtiss-Wright case was especially surprising in the light of the hostility accorded to the domestic innovations of the Depression era by the majority of the Court. Liberals soon dubbed Sutherland and three fellow conservative justices Pierce Butler, James C. McReynolds, and Willis Van Devanter the Four HorsemenFour Horsemen (an allusion to biblical agents of destruction) because of their firm opposition to the New DealNew Deal. In Home Building and Loan Association v. Blaisdell[case]Home Building and Loan Association v. Blaisdell[Home Building and Loan Association v. Blaisdell] (1934), Sutherland ruled that Minnesota’s emergency postponement of mortgage payments violated the obligation of contract and in Carter v. Carter Coal Co.[case]Carter v. Carter Coal Co.[Carter v. Carter Coal Co.] (1936), he declared that an attempt by Congress to institute wage and price controls in the coal industry was unconstitutional because production of coal remained outside its power to regulate under the commerce clause.

Emboldened by the margin of his reelection victory in 1936, President Franklin D. Roosevelt struck at the Court for having gutted major New Deal legislation. In 1937 he proposed to tip the ideological balance of the Court by adding an additional justice for every member over the age of seventy who refused to retire. Sutherland, who was nearing seventy-five and was ready to step down, decided to retain his seat until the Court seemed out of danger. The Court-packing plan proved unpopular and was defeated by Congress. However, Sutherland’s decision in Adkins was overturned in West Coast Hotel Co. v. Parrish[case]West Coast Hotel Co. v. Parrish[West Coast Hotel Co. v. Parrish] (1937) the famous “switch in time that saved nine.” Sutherland wrote a vigorous dissent. Then, in January, 1938, he submitted his resignation.

Sutherland’s constitutional jurisprudence, with its emphasis on restricting governmental power, was at least as compatible with the intent of the Framers as that of his successors, but it quickly fell out of favor in the mid-twentieth century. Despite (or perhaps because of) his thoughtful, philosophical justification for economic conservatism and individual liberty, Sutherland eventually became the most overruled justice in the history of the Court.

Further Reading
  • Arkes, Hadley. The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights. Princeton, N.J.: Princeton University Press, 1994.
  • Bader, William H., and Roy M. Mersky, eds. The First One Hundred Eight Justices. Buffalo, N.Y.: William S. Hein, 2004.
  • Burner, David. “George Sutherland.” In The Justices of the United States Supreme Court, 1789-1978: Their Lives and Major Opinions, edited by Leon Friedman and Fred L. Israel. Vol. 3. New York: Chelsea House, 1980.
  • Murphy, Paul. The Constitution in Crisis Times, 1918-1969. New York: Harper & Row, 1972.
  • Parrish, Michael E. The Hughes Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2002.
  • Paschal, Joel Francis. Mr. Justice Sutherland: A Man Against the State. Princeton, N.J.: Princeton University Press, 1951.
  • Renstrom, Peter G. The Taft Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2003.

Adkins v. Children’s Hospital

Butler, Pierce

Carter v. Carter Coal Co.

Contract, freedom of

Court-packing plan

Home Building and Loan Association v. Blaisdell

McReynolds, James C.

New Deal

Powell v. Alabama

Van Devanter, Willis

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