Sutherland, George

Sutherland, George (b. Buckinghamshire, England, 15 March 1862; d. Stockbridge, Mass., 18 July 1942; interred Cedar Hill Cemetery, Washington, D.C.), associate justice, 1922–1938. George Sutherland's appointment to the Supreme Court by President Warren G. Harding on 5 September 1922 was expected, since his name had been mentioned for the position as early as 1910. A strong conservative, he remained on the Court long enough to witness the demise of substantive due process, a doctrine that had become almost synonymous with his name. In his last years on the Court, his detractors castigated him as one of the Four Horsemen who repeatedly struck down New Deal social legislation. After the defeat of President Franklin Roosevelt's “court‐packing scheme,” Sutherland resigned from the Court, where his beliefs had become unfashionable (see Court‐Packing Plan).

Sutherland's values were forged in the Utah frontier where his Scottish father, Alexander, and his English mother, Frances, brought him as a toddler from England. The Mormon church, which had attracted Alexander to Utah, soon proved uncongenial, and the elder Sutherland went on to pursue a variety of careers, including the law. His son George at the age of twelve entered Brigham Young Academy (later University), where he studied under the Mormon scholar Karl G. Maeser. Maeser impressed on him that the framers of the Constitution had been divinely inspired. Both Maeser and Judge Thomas M. Cooley, who instructed Sutherland at the University of Michigan Law School, passed along to the young man such notions as the existence of individual rights antecedent to the state, limited government dedicated to protecting these rights, and evolution toward social betterment.

After admission to the bars of Michigan and Utah in 1883, Sutherland briefly joined his father's law firm in Provo, and after another partnership there, moved to a prestigious firm in Salt Lake City. Active in Utah politics, first in the Liberal party (or Gentile party, opposed to Mormon polygamy) and after statehood in the newly founded Republican party, Sutherland served in the territorial legislature and as a state senator (1896–1900). In the latter capacity, he sponsored legislation extending eminent domain powers to mining and irrigation industries and advocated a bill for an eight‐hour day for miners. As a member of the United States House of Representatives (1901–1903), he championed protective tariffs for Utah's sugar crop, a commitment to protectionism that he maintained throughout his subsequent career in the United States Senate (1905–1917).

His two terms in the Senate were marked by the advocacy of many positions that defy the conventional image of him as a staunch conservative. He supported the Postal Savings Banks bill (1910), arguing that government had a duty to provide banking where none was available; the Nineteenth Amendment for women's suffrage; workmen's compensation legislation for the railroads, arguing that the Due Process Clause did not stand in the way of what the “enlightened minds of mankind” now regard as just; and legislation to improve the working condition of seamen.

Justice Sutherland's record on the Court likewise defies facile ideological categorization. His name is most often associated with liberty of contract cases such as Adkins v. Children's Hospital (1923). (See Contract, Freedom of.) He wrote the majority opinion holding unconstitutional minimum wage legislation for women as an interference with a woman's right to contract and a step backward from the movement toward equality between the sexes. His laissez‐faire faith also surfaced in Home Building & Loan Association v. Blaisdell (1934), where he invoked the Contracts Clause in dissent against the Court's affirmation of a Minnesota debt moratorium plan.

Yet, Sutherland was as zealous in defense of liberty rights as property rights. In Powell v. Alabama (1932), the famous case of the Scottsboro black youths condemned to death for an assault on a white girl, he wrote the Court's opinion overturning their conviction on the grounds that a criminal defendant has a right to counsel, including a reasonable opportunity for consultation. Grosjean v. American Press Co. (1936) was the occasion for his majority opinion declaring unconstitutional, as a prior restraint of the press, a state license tax on newspaper advertising. Even in property rights cases, Sutherland was not opposed to reasonable and necessary regulation. Thus, he upheld as constitutional: zoning, a ban on women working in restaurants after 10 p.m., the Illinois Fair Trade Act, and a statute regulating motor carriers' use of the streets and highways, among other regulatory acts.

The meaning of constitutional guarantees never varies, Sutherland argued in Euclid v. Ambler Realty Co. (1926), but “the scope of their application must expand or contract to meet the new and different conditions” (p. 387). This elasticity of application of constitutional principles gave him sufficient leeway to view as unconstitutional minimum wage legislation but as permissible regulation of the hours of work, especially in dangerous occupations. This distinction the Court would ultimately find untenable as it abandoned strict oversight of government economic regulations and embraced the New Deal.

See also History of the Court: The Depression and the Rise of Legal Liberalism.

Ellen Frankel Paul