Butler, Pierce
Pierce Butler. Wikimedia Commons (Public Domain)

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Butler, Pierce

BUTLER, PIERCE

Pierce Butler served as associate justice of the Supreme Court from 1923 to 1939. Known for his conservative views, Butler advocated a laissezfaire (French for "let [people] do [as they choose])" philosophy that sought to minimize government interference in the economy. In the 1930s, when franklin d. roosevelt's new deal policies sought to increase the power of government in U.S. life, Butler voted against the constitutionality of every New Deal measure that came before the Court. By the end of his tenure, Butler was one of the few conservatives on an increasingly liberal Supreme Court, and he became distraught by changes in the Court's interpretation of the Constitution. "This is not government by law, but by caprice," he wrote in a 1939 dissent. "Whimseys may displace deliberate action by chosen representatives and become rules of conduct. To us the outcome seems wholly incompatible with the system under which we are supposed to live" (United States v. Rock Royal Co-op, 307 U.S. 533, 59 S. Ct. 993, 83 L. Ed. 1446). Butler dissented in several Supreme Court decisions that overturned laws discriminating against African Americans, and he rarely supported the rights of those with dissenting or radical opinions in society. He did, however, argue consistently for the rights of those accused of crimes.

Those who knew him commented on Butler's stubbornness and occasional bullying, traits that often made his relations with others on the Court less than amicable. Once, after persuading all on the Court but Justice oliver wendell holmes jr., of the rightness of his opinion on a particular matter, Butler said to Holmes, "I am glad we have finally arrived at a just decision." "Hell is paved with just decisions," Holmes responded. Commenting on Butler's conservatism, Holmes characterized Butler as a "monolith" with "no seams the frost can get through." Butler resolutely stuck to his conservative principles even in the depths of the Depression. Something of those views is found in remarks he made in 1916: "Too much paternalism, too much wet-nursing by the state, is destructive of individual initiative and development. An Athlete should not be fed on predigested food nor should the citizens of tomorrow be so trained that they will expect sustenance from the public 'pap.' "

Many of Butler's later views were shaped by his frontier childhood. Butler was born on St.

Patrick's Day, March 17, 1866, in a log cabin in Dakota County, Minnesota. His parents had emigrated from County Wicklow, Ireland, to escape the potato famine of 1848, and eventually established their farm only a few miles from Carleton College, in Northfield, Minnesota, where Butler was admitted in 1883. To help pay his college expenses, he worked in a local dairy. He graduated from Carleton in 1887 with both a bachelor of arts degree and a bachelor of science degree.

After college, Butler moved to St. Paul and studied law at the firm of Pinch and Twohy. He passed the Minnesota bar in 1888 and established a law practice with an associate, Stan Donnelly. In 1891, Butler became assistant to the county attorney for Ramsey County, and in 1893 and 1895 he was elected, as a Democrat, to the office of county attorney, the only elective public office he ever held. While in office, he secured more criminal convictions than any county attorney had done before. Butler ran for the state senate in 1906 but was narrowly defeated. In 1908, he was elected president of the Minnesota State Bar Association. In St. Paul, Butler also met his future wife, Annie Cronin, whom he married in 1891. The couple had eight children.

"Abhorrence, however great, of persistent and menacing crime will not excuse transgression in the courts of the legal rights of the worst offenders."
—Pierce Butler

In 1893, Butler helped establish a St. Paul law firm that evolved into Butler, Mitchell, and Doherty, one of the most successful corporate law firms of its time in what was then called the Northwest. The firm had several railroads as its major clients, including those of James J. Hill, one of the great rail barons. During his career, Butler earned a reputation as the foremost railroad lawyer in the Northwest. His work in railroad litigation eventually brought him to national attention, and allowed him to become friendly with President william howard taft, who served on the Supreme Court as chief justice from 1921 to 1930 and was later instrumental in securing Butler's nomination to the Court.

On November 23, 1922, President warren g. harding nominated Butler to succeed retiring justice william r. day on the Supreme Court. Although Butler was a Democrat, the Republican Harding approved of his laissez-faire economic philosophy and conservative social views. Harding also believed that it would be politically astute to nominate the Roman Catholic Butler to the Court. The last Roman Catholic to serve on the Court had been replaced by Taft in 1921.

Butler's nomination caused a great outcry in liberal circles, particularly from Senators george w. norris and robert m. la follette, and senator-elect Henrik Shipstead, of Minnesota. They pointed to Butler's ties to big business during his legal career, claiming that these would bias his decisions on the bench. They also objected to Butler's actions as a regent of the University of Minnesota, a position he held from 1907 to 1924. Butler, they argued, had used his influence to have several faculty members dismissed. Despite the objections of La Follette and others, the senate judiciary committee unanimously confirmed Butler's nomination on December 13, 1922. On January 2, 1923, the Senate appointed Butler to the Court by a vote of 61–8.

While serving on the Court, Butler fulfilled predictions that he would become a pillar of conservatism. Butler often voted with three other conservatives, Justices james c. mcreynolds, george sutherland, and willis van devanter, himself a former railroad lawyer. Because they consistently voted as a conservative bloc, observers nicknamed this group the Four Horsemen.

Butler's conservatism manifested itself particularly in his emphasis on limiting the power of government. For example, he voted whenever possible against state and federal taxes. In Coolidge v. Long, 282 U.S. 582, 51 S. Ct. 306, 75 L. Ed. 562 (1931), writing the Court's opinion, Butler argued that a state inheritance tax was unconstitutional because it violated the Due Process Clause of the fourteenth amendment, which proclaims that the state shall not deprive a person of liberty without due process of law.

Butler also consistently argued against the rights of government to regulate prices, particularly through his narrow interpretation of the phrase "business affected with a public interest." At the time, it was common for governments, when they sought to regulate prices charged by businesses, to argue that certain industries had more of the public interest involved in their affairs than others; businesses that were affected with a public interest could therefore be regulated by the government. In Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 43 S. Ct. 630, 67 L. Ed. 1103 (1923), Butler voted with the Court in deciding that the packing industry was not affected with a public interest and therefore could not be made subject to price-control legislation. Butler and the Court made the same decision with regard to employment agencies in Ribnik v. McBride, 277 U.S. 350, 48 S. Ct. 545, 72 L. Ed. 913 (1928). In both Wolff and Ribnik, the Court found that the laws under consideration violated the Due Process Clause of the Fourteenth Amendment. In Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940 (1934), when an increasingly liberal Court decided to do without the phrase "affected with a public interest" in making its decision and ruled that the state may regulate milk prices, Butler, along with the rest of the Four Horsemen, dissented. This was just one of many dissents Butler and his conservative colleagues would make during the 1930s.

Butler's opinions in the area of civil liberties are less easy to categorize. He argued persuasively for the rights of those accused of crimes, arguing in one opinion, "Abhorrence, however great, of persistent and menacing crime will not excuse transgression in the courts of the legal rights of the worst offenders." He opposed national prohibition and criticized federal agents several times for violating the fourth amendment in their searches and seizures. In a case involving wire tapping by Prohibition agents, olmstead v. united states, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), Butler found himself in the unusual company of the more liberal justices louis d. brandeis, harlan f. stone, and Holmes. In his dissenting opinion, Butler argued that during the transmission of messages, the exclusive use of any wire belonged to the persons served by it. Law enforcement wiretapping therefore constituted an illegal search for evidence. In Aldridge v. United States, 283 U.S. 308, 51 S. Ct. 470, 75 L. Ed. 1054 (1931), Butler voted with the majority in holding that an African American being tried for the murder of a white man was entitled to have the prospective jurors asked whether they had a racial prejudice that would prevent a fair trial. Butler also supported the rights of disabled persons, casting a lone dissenting vote, without opinion, in buck v. bell, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000 (1927), which upheld a 1924 Virginia law allowing for the sterilization of mentally handicapped individuals.

When it came to the civil liberties and freedom of speech of those in society with radical or dissenting opinions, Butler was less understanding. Ironically, Butler's dissenting opinions in many of these matters undermined the rights for dissent in the larger society. In his dissent against the majority opinion in Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931), Butler considered lawful the conviction of a young woman found guilty of displaying a red flag in public. The California law under consideration, Cal. Penal Code § 403a, made it a felony to display a red flag as "an emblem of opposition to organized government" or "an invitation … to anarchistic action." In United States v. Schwimmer, 279 U.S. 644, 49 S. Ct. 448, 73 L. Ed. 889 (1929), Butler wrote the opinion for a majority of six upholding the denial of citizenship to the sixty-year-old Rosika Schwimmer. In her petition for citizenship, Schwimmer had specifically stated that she would refuse to take up arms for the state in any possible circumstances. Writing the Court's opinion, Butler interpreted her statement as opposition to the entire Constitution and therefore the laws of the country: "Taken as a whole it shows that her objection to military service rests on reasons other than mere inability because of her sex and age personally to bear arms … [S]he may be opposed to the use of military force as contemplated by our Constitution and laws." Butler dissented from the Court's decision again in Hague v. Committee of Industrial Organizations, 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939), where he argued for the legality of a city ordinance regulating labor meetings in city parks.

In civil rights and racial issues, Butler resisted changes in established interpretations of the Constitution. In the 1930s, when the Court became more liberal and more actively sought to strike down state laws—particularly racially discriminatory laws—it considered unconstitutional, Butler argued that the Court had overstepped its bounds and that state legislatures were the best judges of what was best for their citizens. In the 1932 decision powell v. alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, the High Court dealt with the Scottsboro case, involving African American men who had been convicted in 1931 in Scottsboro, Alabama, of raping two white women. The Court held that the accused men had been deprived of the right of counsel and had therefore been denied due process as guaranteed by the Fourteenth Amendment. Butler's dissenting opinion argued that no denial of due process had occurred and that the Court's decision was an unwarranted "extension of federal authority in a field hitherto occupied exclusively by the several states." In a 1938 case involving an African American denied access to law school by the state of Missouri, Butler's dissented opinion argued for the constitutionality of the state's action (Missouri ex rel. Gaines v. Canada, 205 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208).

Butler also dissented in several decisions in the 1930s in which the Court struck down jim crow laws that kept African Americans from voting. In Breedlove v. Suttles, 302 U.S. 277, 58 S. Ct. 205, 82 L. Ed. 252 (1937), Butler argued that a poll tax (a tax charged to voters at the time they cast their votes) did not violate the Fourteenth Amendment, and in Lane v. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281 (1939), Butler disagreed with the majority's decision to strike down an Oklahoma law that made it difficult for African Americans to register to vote.

Butler and his conservative colleagues also opposed Franklin D. Roosevelt's New Deal social welfare legislation. In his last three terms in office, Butler dissented in seventy-three cases—constituting more than half of the total dissents in his seventeen-year career on the Supreme Court. He dissented in Helvering v. Davis, 301 U.S. 619, 57 S. Ct. 904, 81 L. Ed. 1307 (1937), in which the Court upheld the government's right to tax employers and employees to create pensions through the social security act of 1935, 42 U.S.C.A. § 401 et seq. "The Constitution," Butler wrote in his dissent, "grants to the United States no power to pay unemployed persons or to require the states to enact laws … for that purpose." Butler wrote the Court's opinion in Morehead v. New York ex rel. Tipaldo, 299 U.S. 619, 57 S. Ct. 4, 81 L. Ed. 456 (1936), which supported an earlier decision to strike down a minimum wage law for women.

Butler died of a bladder ailment on November 16, 1939, in Washington, D.C., at age seventy-three. During his tenure, he wrote 323 majority opinions, forty-four dissenting opinions, and three concurring opinions. Butler clung to his dated ideals, even in a world that was fast finding fault with them. As one observer wrote after Butler's death, "he did not change as the frontiers changed; and perhaps this quality of steadfast resistance to a different world was what Justice Holmes had in mind when he spoke of him as a 'monolith.' "

further readings

Brown, Francis J. 1945. "The Social and Economic Philosophy of Pierce Butler." In Catholic University of America Studies in Sociology. Vol. 8. Washington, D.C.: Catholic Univ. of America Press. Dissertation, Catholic University.

Burner, David. 1969. "Pierce Butler." In The Justices of the United States Supreme Court, 1789–1969: Their Lives and Major Opinions, ed. Leon Friedman and Fred L. Israel. New York: Chelsea House.

Christianson, Theodore. 1935. Minnesota: A History. Chicago: American Historical Society.

Congressional Quarterly. 1989. Guide to the U.S. Supreme Court. Washington, D.C.: Congressional Quarterly.

Danielski, David J. 1964. A Supreme Court Justice Is Appointed. New York: Random House.

Frank, John P. 1940. The Confirmation of Pierce Butler. M.A. thesis, University of Wisconsin.

Reilly, William. 1993. "Pierce Butler." In The Supreme Court Justices: Illustrated Biographies, 1789–1993; ed. Claire Cushman. Washington, D.C.: Congressional Quarterly.

U.S. Supreme Court. 1940. Proceedings of the Bar and Officers of the Supreme Court of the United States in Memory of Pierce Butler (January 27).

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Butler, Pierce

Pierce Butler, 1866–1939, associate justice of the U.S. Supreme Court (1923–39), b. Dakota co., Minn. Admitted (1888) to the bar, he practiced in St. Paul, specialized in railroad law, and became an expert in railroad-valuation cases, serving (1913–22) both the U.S. and Canadian governments. On the Supreme Court, to which he was appointed by President Harding, he was generally considered a conservative.

See D. J. Danelski, A Supreme Court Justice Is Appointed (1964).

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