more than you want to know about Rutledge
Mary L. Dudziak
mdudziak at law.usc.edu
Mon May 3 16:21:16 PDT 2004
For anyone looking for more on this, here's a short essay I wrote on
Rutledge for American National Biography. I was especially interested to
learn about his role supporting FDR during the court-packing
controversy. Perhaps of most use will be the list of readings at the end.
In response to Scot Powe's original question, I teach Goesart v. Cleary, so
I teach Rutledge's dissent in that case, although that's for a 20th century
constitutional history course. But even for a regular con law class, I
think it's useful to discuss Goesart, or perhaps Hoyt v. Florida, prior to
Reed v. Reed & Craig v. Boren.
Rutledge, Wiley Blount, Jr. (20 July 1894_10 Sept. 1949), associate justice
of the U.S. Supreme Court, was born in Cloverport, Kentucky, the son of
Wiley B. Rutledge, Sr., a Baptist minister, and Mary Louise Wigginton. As a
young man, he survived a prolonged battle with tuberculosis, a disease that
had killed his mother when he was nine years of age. He attended the
preparatory department of Marysville College before transferring to the
University of Wisconsin, from which he received a B.A. in 1914. He then
taught high school in Indiana while attending the Indiana University Law
School. Trying to do both broke his health, and in 1915 he entered a
tuberculosis sanitarium in Asheville, North Carolina. In 1917 he married
Annabel Person, his teacher of Greek from Marysville College. They had
three children. He and Annabel moved to Albuquerque, New Mexico, where they
hoped the air would cure his lungs. Rutledge taught high school in
Albuquerque, and in 1920 he enrolled at the University of Colorado Law
School. Working his way through by teaching school, he received his degree
in 1922. He joined the University of Colorado Law School faculty in 1924.
He later served as law school dean at Washington University in St. Louis,
Missouri, and then at the State University of Iowa.
Rutledge was a staunch supporter of President Franklin D. Roosevelt's New
Deal policies and thought that Supreme Court decisions striking them down
were wrongly decided. When Roosevelt proposed his Court_packing plan in
1937, Rutledge supported it. Opposition to the bill in Iowa, where Rutledge
was dean of the university's law school, was strong. When asked by
Roosevelt's aides if he would testify in favor of the bill, Rutledge
assented. He called the university president to offer his resignation,
since it was rumored that Rutledge's testimony would lead the Republican
state legislature to defeat a bill restoring faculty salaries that had been
cut during the depression. The university president encouraged him not to
resign and to speak his mind. While the administration ultimately called no
witnesses, Rutledge's willingness to support Roosevelt had made an impression.
Rutledge was first seriously considered for a U.S. Supreme Court
appointment in 1938, when he lost out to Felix Frankfurter. Rutledge
instead received the consolation prize of a seat on the prestigious U.S.
Court of Appeals for the District of Columbia. His position as a circuit
judge in Washington, D.C., did not deprive him of his geographic status as
a "westerner," and he continued to appear on short lists for Supreme Court
appointments. President Roosevelt's desire to appoint someone from west of
the Mississippi came behind other considerations until finally, in 1943,
Rutledge was named as the last of Roosevelt's eight Court appointments.
On the Court, Justice Rutledge favored an expansive reading of individual
constitutional rights. He was the only other member of the Court to join
Justice Frank Murphy's dissenting opinion in Adamson v. California (1947),
arguing that due process rights enforceable against the states under the
Fourteenth Amendment not only included the protections under the first
eight amendments of the Bill of Rights but also encompassed other
violations of "fundamental standards" of criminal procedure. In the area of
the commerce power, Rutledge wrote majority opinions for the Court eleven
times, upholding the federal government's expansive post_New Deal
Rutledge's own favorites of his Supreme Court opinions were his dissents in
Everson v. Board of Education (1947) and In re Yamashita (1946). In
Everson, the majority upheld a New Jersey school district's policy of
providing transportation to students who attended both public
and parochial schools. Rutledge found the statute to be a dangerous breach
in the wall separating church and state. Joined by three of his colleagues,
Rutledge argued that the history of the framing of the First Amendment
supported the idea that the Constitution forbade any state appropriations
to aid or support religion. He was an advocate of the "preferred positions"
doctrine, arguing in Everson and in his majority opinion in Thomas v.
Collins (1945) that "the preferred place given in our scheme to the great
democratic freedoms secured by the First Amendment gives them 'a sanctity
and a sanction not permitting dubious intrusions.' "
Rutledge was a voice ahead of his time on the issue of gender_based
equality. His dissent in Goesart v. Cleary (1948) argued that a state law
that prohibited women from working as barmaids unless the bar was owned by
the woman's father or husband was unconstitutional. The majority saw no
constitutional infirmity in banning women from barroom employment in
order to protect their moral character. The Supreme Court would not
reverse this line of analysis until the 1970s.
In Korematsu v. United States (1944), Rutledge joined the Court's majority
opinion upholding the exclusion of Japanese Americans from the West
Coast. Although the decision was a great blow to civil liberties,
Rutledge's position in Korematsu was consistent with his view that the
nation faced Armageddon during World War II and that unqualified support of
the war effort was needed.
In spite of his devotion to the war effort, Rutledge's tolerance of
government action had limits. In In re Yamashita (1946), the Court majority
dismissed the constitutional challenge of a Japanese general prosecuted by
the United States for violations of the law of war due to the acts of his
soldiers. Rutledge, in dissent, argued that Fifth Amendment protections
applied. Quoting Thomas Paine, Rutledge admonished the Court, stating, "He
that would make his own liberty secure must guard even his enemy from
oppression; for if he violates this duty he establishes a precedent that
will reach himself."
Although Rutledge had an impact on the Court, that impact was limited by
the shortness of his tenure. After six years of service, Rutledge suffered
a cerebral hemorrhage and died in York, Maine. His death followed by less
than two months the death of Justice Murphy, with whom Rutledge had often
dissented. Rutledge was replaced by Sherman Minton. As these liberal voices
were replaced by more conservative Harry S. Truman appointees, the Court
took a more conservative turn.
In addition to his judicial opinions, Rutledge published a short book, A
Declaration of Legal Faith (1946), and various articles and essays.
Bibliographies of his judicial opinions and other writings are in Iowa Law
Review 50 (1950): 693, and Indiana Law Journal 25 (1950): 560. Fowler V.
Harper, Justice Rutledge and the Bright Constellation (1965), focuses
principally on Rutledge's years on the U.S. Supreme Court. A biographical
essay on Rutledge is in Leon Friedman and Fred L. Israel, eds., The
Justices of the United States Supreme Court, 1789_1969: Their Lives and
Major Opinions, vol. 4 (1969). The most insightful writing on Rutledge is
published in law reviews. His impact on civil liberties is effectively
analyzed in Landon G. Rockwell, "Justice Rutledge on Civil Liberties," Yale
Law Journal 59 (1949). Helpful on Rutledge's commerce power opinions is
Lester E. Mosher, "Mr. Justice Rutledge's Philosophy of the Commerce
Clause," New York University Law Review 27 (1952). A useful work on
the Court during Rutledge's tenure is C. Herman Pritchett, The Roosevelt
Court: A Study in Judicial Politics and Values, 1937_1947 (1948). Many
articles and tributes were written in honor of Rutledge following his
death. Of particular interest is Irving Brandt, "Mr. Justice
Rutledge__The Man," Iowa Law Review 35 (1950).
Mary L. Dudziak
Mary L. Dudziak. "Rutledge, Wiley Blount, Jr.";
American National Biography Online Feb. 2000.
Access Date: Mon May 3 14:04:32 PDT 2004
Copyright © 2000 American Council of Learned Societies. Published by
Oxford University Press. All rights reserved.
Mary L. Dudziak
Judge Edward J. and Ruey L. Guirado Professor of Law and History
University of Southern California Law School
Los Angeles, CA 90089-0071
mdudziak at law.usc.edu
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