Today in Supreme Court History: July 18, 1942

7/18/1942: Justice George Sutherland dies.

Justice George Sutherland

Comments

[Dan Schiavetta]

Hamblen v. Dugger, 492 U.S. 929 (decided July 18, 1989): staying execution pending decision on certiorari, with the stay to dissolve if cert was denied. Cert was denied on 6/28/90, 497 U.S. 1031, with Brennan and Marshall as usual dissenting, "adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendmentes". For some reason execution did not happen then; it happened the day after another application for a stay was denied on 9/21/90, 497 U.S. 1054, with only Marshall dissenting (Brennan had retired by then). According to the AP report of Hamblen's electrocution, "During his last minutes, he smiled, winked and stuck his tongue out at witnesses in the death chamber. In his final statement, Hamblen made a play on President Bush’s campaign promise not to raise taxes. 'You know that I had trouble with that four-letter L-word, so like George, read my lips,' Hamblen said to Judith Dougherty, one of his state-funded attorneys. He then mouthed the words, 'I love you.'" He had at one point asked his appeals to be dropped and said he was depressed that his execution had been postponed so long. His crime: in the process of robbing a lingerie store, shooting the owner in the back of the head when she pressed a silent alarm button.

[John F. Carr]

April 24, 1984 to September 21, 1990. Only six years from crime to execution, quite speedy in post-1970s America. More effective than post-Antiterrorism and Effective Death Penalty Act capital punishment. It took 16 years to execute Timothy McVeigh.

[Frank Drackman]

actually 6, but probably felt like 16

[John F. Carr]

You are correct. My math is wrong.

[F.D. Wolf]

On the Court, Sutherland was the leader of "the Four Horsemen", the conservative bloc of justices (Sutherland, McReynolds, Van Devanter, and Butler) that led the way in striking down some New Deal policies and other progressive economic legislation. But not always. Some were surprised when he authored the opinion in Village of Euclid v. Ambler Realty Co. (1926), in which the Court upheld the constitutionality of the relatively new practice of municipal zoning. (The other three Horsemen dissented in the 6-3 ruling). Sutherland authored many of the opinions asserting economic substantive due process rights that were swept away by West Coast Hotel Co. v. Parrish (1937) (Sutherland, J., dissenting, joined by Van Devanter, McReynolds, and Butler, JJ.).

During the recent controversy over the eviction moratorium, I thought of Sutherland's dissent in Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934). In the depths of the Depression, the Minnesota legislature had suspended several creditors' remedies, including foreclosure on unpaid mortgages. Creditors argued that this was in contravention of the Contracts Clause of the Constitution that provides that, "No state shall... [make any] Law impairing the Obligation of Contracts."

The Court, in a 5-4 (guess which 4) decision, held that the Minnesota laws were justified by the state's inherent "police power" and the exigent circumstances.

The present exigency is nothing new. From the beginning of our existence as a nation, periods of depression, of industrial failure, of financial distress, of unpaid and unpayable indebtedness, have alternated with years of plenty. The vital lesson that expenditure beyond income begets poverty, that public or private extravagance, financed by promises to pay, either must end in complete or partial repudiation or the promises be fulfilled by self-denial and painful effort, though constantly taught by bitter experience, seems never to be learned, and the attempt by legislative devices to shift the misfortune of the debtor to the shoulders of the creditor without coming into conflict with the contract impairment clause has been persistent and oft-repeated.

The defense of the Minnesota law is made upon grounds which were discountenanced by the makers of the Constitution and have many times been rejected by this court. That defense should not now succeed, because it constitutes an effort to overthrow the constitutional provision by an appeal to facts and circumstances identical with those which brought it into existence. With due regard for the processes of logical thinking, it legitimately cannot be urged that conditions which produced the rule may now be invoked to destroy it. Id. at 471-72 (Sutherland, J., dissenting).

The Contract Clause, of course, doesn't have an "emergency" exception, but, as is so often the case, "emergency" powers eventually become general powers, and today the Contract Clause is virtually a dead letter, subservient to state "police power".