Justice George Sutherland (1862-1942) – Guest Essayist: Daniel A. Cotter

Justice George Sutherland: One of the Four Horsemen              

Introduction 

In the Supreme Court’s history, six justices were born outside of the United States.  The fifth of those born on foreign soil was George Sutherland (second born in England).  After a career in private practice and public office, Sutherland became an Associate Justice of the Supreme Court in 1923, and would figure prominently in the New Deal jurisprudence as one of the “Four Horsemen” of the Supreme Court.

Early Life and Career

George Sutherland was born on March 25, 1862, in Buckinghamshire, England, to Alexander George Sutherland and Frances Sutherland (nee Slater).  His father, a convert to The Church of Jesus Christ Latter Day Saints, moved his family to the Utah Territory in 1863 and pursued prospecting, as well as other occupations, including practicing law, there.  His father later renounced his Mormon faith.  At the age of seventeen, Sutherland enrolled in Brigham Young Academy (now Brigham Young University) and, upon graduation, attended the University of Michigan Law School. 

Sutherland did not graduate from law school, but was admitted to the bar in Michigan, and returned to Utah to join his father’s law practice.  Sutherland practiced law in Utah for almost a decade.  During that time, he also served as a State Senator in the first Utah Senate.  In 1900, he ran for and was elected to the United States House of Representatives, defeating his former law partner.  After one term, Sutherland returned to Utah and private practice, preparing for a run for a United States Senate seat. 

In 1905, he became a U.S. Senator and served two terms, establishing a strong reputation for his mastery of the Constitution.  Sutherland also advocated for women’s rights, sponsoring the Nineteenth Amendment in the Senate and working hard for its passage and ratification.  Sutherland is also considered one of the main proponents behind the passage of the Federal Employer Liability Act, which established a worker’s compensation system.  In his last year as Senator, Sutherland served as President of the American Bar Association. 

Upon leaving the Senate, he remained in Washington, D.C., where he practiced law and was a close advisor to President Warren Harding.  On September 5, 1922, Harding nominated Sutherland to the vacancy created by Justice John Clarke’s retirement.  Sutherland was confirmed by voice vote the same day and took his oath on October 21, 1922.  Along with fellow Justices James McReynolds, Pierce Butler and Willis Van Devanter, Sutherland became part of a conservative bloc on the Supreme Court that became known as the “Four Horsemen.”  During his sixteen years on the Court, Sutherland voted with the majority to invalidate seventeen acts of Congress, including several of the “New Deal” initiatives advanced by President Franklin Roosevelt’s administration.  

The Four Horsemen

When Van Devanter and McReynolds were joined by Sutherland and then Butler in early 1923, they formed a powerful conservative faction on the Court, first under Chief Justice William Howard Taft and then under Chief Justice Charles Evans Hughes.  In the 1932 Term, their cohesiveness on Court decisions resulted in the nickname “The Four Horsemen” from the national press (a reference to the “Four Horsemen of the Apocalypse”).  From 1932 to 1937, the Four Horsemen (together with Chief Justice Hughes and Justice Owen Roberts) issued opinions invalidating much of President Roosevelt’s New Deal legislation, including the Agricultural Adjustment Act, the Federal Farm Bankruptcy Act, the Railroad Act, and the Coal Mining Act.  The Four Horsemen also ruled with Justices Roberts and Hughes that the National Industrial Act and minimum wage laws for women and children were unconstitutional.  One of the last opinions joined by the four justices was a dissent in Associated Press v. National Labor Relations Board (1937), a case in which the majority held that the Wagner Act’s prohibition of unfair labor practices applied to the Associated Press and the First Amendment did not shield the AP from the Act.  Sutherland, writing for the Four Horsemen, dissented:

No one can read the long history which records the stern and often bloody struggles by which these cardinal rights [in the First Amendment] were secured, without realizing how necessary it is to preserve them against any infringement, however slight….For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.

The Four Horsemen rode to the Supreme Court in one car every day to discuss strategy and positions, and were opposed to laws regulating labor as well as state economic regulation.  The Supreme Court’s invalidation of much of the New Deal led to a potential constitutional crisis when President Roosevelt proposed a court-packing plan that would have added a new justice for each sitting justice over the age of 70.  (The Constitution does not specify the number of justices who sit on the Supreme Court, and the current composition of nine justices, which was also in effect at the time of  Roosevelt’s proposal, is set by the Judiciary Act of 1869.)  The crisis was averted when Justice Roberts voted to uphold a Washington minimum wage law in West Coast Hotel v. Parrish (1937).  Known as the “switch in time that saved nine,” recent scholars have concluded that Roberts actually cast his vote in this case before the court-packing legislation was introduced, rather than as a result of political pressure stemming from Roosevelt’s effort to reconstitute the Court.  Sutherland considered retirement from the Court several times, but was determined to remain on the bench so long as President Roosevelt continued his efforts to pack the Court.  Once that plan was defeated, Sutherland gave notice of his plans to retire and did so on January 17, 1938, at the age of 75.

Sutherland’s Other Work on the Court

In his more than fifteen years on the Court, Sutherland wrote a number of other important decisions, including Powell v. Alabama, a 1932 case that overturned a conviction in the Scottsboro Boys Case because the defendant was deprived of counsel.  He also wrote the majority opinion in U.S. v. Curtiss-Wright Export Corp., a case that established the president’s strong powers in foreign affairs. 

Conclusion

Upon his retirement, Sutherland was replaced by Stanley Reed.  Combined with the retirement of Van Devanter the previous year, The Four Horsemen were no more and Roosevelt saw a number of New Deal victories from the Supreme Court.  The Supreme Court has not seen such a consistent voting bloc since the Four Horsemen and one wonders if we will see its equal in the future.  To date, Sutherland is the only Utahan to sit on the Supreme Court.

Dan Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else.

One Response to “Justice George Sutherland (1862-1942) – Guest Essayist: Daniel A. Cotter”

  1. Publius Senex Dassault says:

    Very interesting essay.

    I did know and had never considered that foreign born citizens could serve as SCOTUS justices.

    Roosevelt’s threat an attempt seems to validate many founding fathers concerns that the temptation to rule edict or fiat is always a threat to freedom and rule of law. Or as Daniel Webster so eloquently said:

    “God grants liberty only to those who love it and are always ready to guard and defend it.”

    “There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters”

    “The Constitution was made to guard the people against the dangers of good intentions”

    PSD

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