more than you want to know about Rutledge

Mary L. Dudziak mdudziak at
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.

Mary Dudziak

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 
regulatory power.

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
University Park
Los Angeles, CA   90089-0071
phone:  213.740.4789
fax:  213.740.5502
mdudziak at
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