Today in Supreme Court History: September 5, 1922

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

Justice George Sutherland

Comments

[F.D. Wolf]

On (or around) this date, September 5, 1698, Tsar Peter I of Russia (Peter the Great) imposed a beard tax. The amount of the tax varied depending on one's status, ranging from as little as one kopek for peasants to as high as 100 rubles annually for nobility and wealthy merchants. Police were empowered to forcibly shave anyone who refused to pay. The tax was part of a package of reforms by Peter to modernize Russia and bring it more in line with the mores of Western democracies. Originally a complete ban, Peter softened and settled on a mere tax.

In Kelley v. Johnson, 425 U.S. 238 (1976), the Supreme Court considered the constitutionality of a police department's restrictions on hair length. Plaintiffs claimed it was an infringement of their "liberty interests" under the Fourteenth Amendment. The Court, in a 6-2 decision per Justice Rehnquist, upheld the policy. Justice Marshall, joined by Justice Brennan, dissented. In his dissent, Marshall referenced Peter the Great's beard tax:

History is dotted with instances of governments regulating the personal appearance of their citizens. For instance, in an effort to stimulate his countrymen to adopt a modern lifestyle, Peter the Great issued an edict in 1698 regulating the wearing of beards throughout Russia. Anyone who wanted to grow a beard had to pay an annual tax of from one kopek for a peasant to one hundred rubles for a rich merchant. Of those who could not afford the "beard tax," there were many "who, after having their bears shaved off, saved them preciously, in order to have them placed in their coffins, fearing that they would not be allowed to enter heaven without them." J. Robinson, Readings in European History 390 (1906).

There are more recent instances, too, of governments regulating the personal appearance of their citizens. See, E. g., N. Y. Times, Feb. 18, 1974, (Czech police stop long-haired young men, telling them to get haircuts); Id., July 23, 1972, (Libyan Government tells youths to trim hair and wear more sober clothes or submit themselves for training in the army); Id., July 7, 1971 (over 1,000 young men rounded up and given haircuts by South Korean police in what was described by government officials as a "social purification" campaign); Id., Oct. 13, 1970, (police force more than 1,400 South Vietnamese youths to cut their hair). It is inconceivable to me that the Constitution would offer no protection whatsoever against the carrying out of similar actions by either our Federal or State Governments.

Id. at 253 n.4 (Marshall, J., dissenting) (some citations omitted).

[JoeFromtheBronx]

Regarding the opening comment, hair length was often an issue in the lower federal courts in the late 1960s and early 1970s.

https://firstamendment.mtsu.edu/article/hair-length-and-style/

Hair length, including beard length, has various constitutional implications. It can be cited as a "liberty" or a matter of personal privacy, perhaps with implications under the Ninth Amendment. Sometimes, beards can be worn for health reasons.

It also has many First Amendment implications as seen in Holt v. Hobbs (statutory case) involving beard length as a religious matter. Hair length is often a matter of self-expression. The musical Hair indicates the symbolism involved.

Hair is also an expression of culture, which often has ethnic and racial implications. I recall that mustaches were a big thing in certain Middle Eastern cultures. Melissa Harris-Perry had a good segment years ago on her show about black women's hair. Certain anti-discrimination laws address hair-based discrimination.

Forcing Native American students to cut their hair in Indian boarding schools is a way these things come together.

One lower court case in the late 19th Century involved cutting the queue off of the Chinese, which was deemed discriminatory and cruel and unusual punishment.

https://supreme.justia.com/cases/federal/us/404/1042/

A past SCOTUS entry focused on justices with facial hair, which contains a picture of "Grandpa" Alito with a beard.

https://reason.com/volokh/2022/07/28/justices-with-facial-hair/

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Note: During Justice Barrett's interview regarding her new book, she was asked to use one word to describe her colleagues. For Justice Alito, she used the word "grandfather."

I have visions of Alito as a grumpy but kindly grandfather with his grandchildren, maybe watching a Phillie game.

[not guilty]

Was the first President with a beard James Buchanan?