Today in Supreme Court History: September 5, 1922

9/5/1922: Justice George Sutherland takes the oath.

Justice George Sutherland

Comments

[Dan Schiavetta]

Moore v. Brown 448 U.S. 1335 (decided September 5, 1980): Rehnquist refuses to stay injunction requiring Mobile, Alabama school board to be elected by district (instead of traditional at-large); at-large system was not facially discriminatory because it was instituted in 1826, and District Court erroneously pointed to the effect of excluding blacks, as opposed to the intent, but the parties had agreed to hold district election for now and can return to at-large later if appeal succeeds (the Court ended up agreeing with Rehnquist via a companion case, 446 U.S. 55, 1980)

[F.D. Wolf]

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But, in the exercise of this high power, we must be ever on our guard lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.

New State Ice Co. v. Liebmann, 285 U.S. 262, 310-11 (1932) (Brandeis, J., dissenting)

The above passage by Justice Brandeis is so often quoted, that its context tends to be forgotten. What was this bold social experiment that Brandeis was defending with such lofty rhetoric? An Oklahoma statute that required a license to sell ice. Justice Sutherland had written the majority opinion striking down the statute in the 7-2 decision.

Sutherland was the leader of the Court faction known as the "Four Horsemen". Along with Justices McReynolds, Van Devanter, and Butler, they were hostile to the new, progressive economic regulations, finding them violative of (substantive) due process rights. Opposite the Horsemen were the "Three Musketeers" (Brandeis, Cardozo, and Stone), who deferred to the legislature on economic regulations. This left the balance of power on the Court with Chief Justice Hughes, who would often side with the liberals, and Justice Roberts who often provided the fifth vote with the Horsemen.

It was the frequent striking-down of New Deal legislation that led a frustrated President Roosevelt to propose his 1937 court-packing scheme, which in turn, led to the "switch in time that saved nine", the most important case of the last 100 years, West Coast Hotel v. Parrish, 300 U.S. 379 (1937). In that case, Hughes writing for a 5-4 Court, upheld a Washington state minimum wage law. (Roberts provided the "switch" for the fifth vote). Sutherland, joined by Mcreynolds, Van Devanter, and Butler, dissented. The case expressly overruled Adkins v. Children's Hospital (1923), a 5-3 decision in which Sutherland had authored the majority opinion.

[Dan Schiavetta]

Thanks!

P.S. I prefer Hughes's jurisprudence to Sutherland's, but Sutherland had the better beard.