Sutherland, George (1862–1942)

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George Sutherland, Supreme Court Justice from 1922 to 1938, was born in England in 1862. A year thereafter, he was brought by his parents to Brigham Young's Utah. Although he himself was never a Mormon, Sutherland attended a Mormon academy; in 1882–1883, he studied at the law school at the University of Michigan. On leaving the university, Sutherland was admitted to the Utah bar. He attained immediate prominence, both professionally and politically. He was elected to the house of representatives as a Republican in 1900 and to the senate in 1905, where he remained until 1917.

Sutherland's tenure in Congress forced him to confront issues in a political context that he would later deal with as a Supreme Court Justice. Generally he supported a conservative position. Yet his most enduring legislative achievements centered on improving conditions for seamen; advancing a federal worker ' s compensation program; and promoting woman suffrage. Sutherland's congressional tenure enabled him as early as 1910 to establish his credentials for appointment to the Supreme Court. The 1920 election of Warren Harding, attributed in considerable part to Sutherland in his role of principal confidential adviser to the candidate, virtually assured him the nomination. The nomination was sent to an approving Senate on September 5, 1922.

Anyone interested in the new Justice's approach to legal and political problems had not far to look. In the five years since his retirement from the Senate, Sutherland had delivered major addresses setting forth his conservative philosophy. In his presidential address to the American Bar Association in 1917, he chose to speak on "Private Rights and Government Control." The message was clear. "Prying Commissions" and "governmental intermeddling" were unnecessary and at war with the "fundamental principle upon which our form of government depends, namely, that it is an empire of laws and not of men." Four years later Sutherland was telling the New York State Bar Association "that government should confine its activities, as a general rule, to preserving a free market and preventing fraud." He further explained that "fundamental social and economic laws" were beyond the "power of official control."

Once on the Court, Sutherland readily joined his conservative colleagues invoking substantive due process to strike down exertions of governmental power. His first major opinion, in adkins v. children ' shospital (1923), was directed at the minimum wage. Here, in the area of freedom of contract, no presumptive validity could be accorded to the exercise of legislative power. Rather, its legitimacy could be established only by "exceptional circumstances" and certainly not by considerations of a worker's needs or bargaining power. In short order, state attempts to regulate prices of gasoline, theater tickets, and employment agency services were similarly condemned. Other forms of state regulation fared no better. Nor was substantive due process the sole doctrinal reliance. In the Court's continuing battle with state legislatures, Sutherland led his colleagues in discovering hitherto unrealized prohibitions in the equal protection, commerce, and contract clauses. And, under his hand, the privileges and immunities clause of the fourteenth amendment, neglected and forgotten for decades, sprang to life as a restraint on state power in colgate v. harvey (1935).

Eventually, of course, the Court repudiated the Sutherland approach to state legislative power and little of it remains. Yet, in at least two respects, his contribution in this area is of continuing significance. The first has to do with his seminal opinion in Frost and Frost Trucking v. Railroad Commission (1926) where he elaborated the theory of unconstitutional conditions. This theory destroyed the notion that a state's power to withhold a privilege somehow gives it authority to discriminate without check in granting the privilege. The second is his opinion for a divided court in euclid v. ambler realty (1926) which furnishes the constitutional foundation for the modern law of zoning.

When Sutherland came to deal with the actions of Congress and the President, he exhibited the same jealousy of authority that characterized his response to state legislatures. Accordingly, he remained to the end unconvinced of the constitutionality of many of the New Deal enactments and in time was overwhelmed by the arrival of our modern-day Constitution of "powers." Even so, Sutherland's lasting impact will be found on close examination to have been highly significant. Particularly, he made highly personalized contributions to our structural Constitution; he had a distinctive role in shaping the Constitution as a guarantor of civil rights; and he, more than anyone else, supplied the intellectual underpinnings for the foreign affairs power.

As for the structural Constitution, Sutherland's opinion in Massachusetts v. Mellon (1923), and its companion case of frothingham v. mellon (1923), is still, despite scores of intervening qualifying decisions, the basic starting point in determining when a federal "taxpayer" has standing to raise a constitutional question in actions in the federal courts. Here plainly is one of the most telling limitations on federal judicial power. In a number of cases, Sutherland wrote opinions enforcing restraint on Supreme Court review of state decisions that were found to rest on independent and adequate state grounds. In still others, he resisted effectively the pleas of reformers to whittle down guarantees of the right to trial by jury, in civil as well as criminal cases. And in the highly technical matter of the relationship between state and federal courts, Sutherland's influence continues. Finally, Sutherland's views have been decisive in regard to the President's power to remove federal office holders. Early in his judicial career he concurred in Chief Justice william howard taft's unnecessarily wide-ranging opinion in myers v. united states (1926), sanctioning a presidential power to remove without restraint. In humphrey ' sexecutorv. united states (1935) he started the Court on the way to new doctrine. The removal power must take account of the nature of the office involved.

Sutherland's tenure on the Court spanned the years in which the Court began to take the bill of rights seriously as a check on state action. His role in this development was not all of one piece. But he did write a leading opinion, in grosjean v. american press company (1936), condemning a state tax on the press because of the levy's impermissible motive to make costly the criticism of public officials. And in powell v. alabama (1932), he charted for the Court the first steps a state must take to assure counsel in legal proceedings. His problem there was counsel in a capital case. But Sutherland's opinion was not so confined in its implications and has proved influential even beyond the bounds of the criminal law.

Long before he went on the Court, Sutherland was given to speculation about the foreign relations powers, producing in 1919 a book on the subject, Constitutional Power and World Affairs. In his book and elsewhere, Sutherland developed the theory that the powers of the United States in respect to foreign affairs were largely unrelated to any grant from the states and existed as an incident of sovereignty devolved directly on the United States from Great Britain. Their employment and their distribution were to be governed by rules not applicable to the specific delegations of the Constitution. In 1936, in curtisswright export corp. v. united states, Sutherland was able to incorporate these views in an opinion for a unanimous Court.

Sutherland retired from the Court in 1938. He died in 1942.

J. Francis Paschal


Paschal, Joel Francis 1951 Mr. Justice Sutherland: A Man against the State. Princeton, N.J.: Princeton University Press.

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Sutherland, George (1862–1942)

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