BURTON, HAROLD (1888–1964)

Probably no member of the United States Supreme Court enjoyed greater affection from his colleagues on the bench than Justice Harold Burton, whom felix frankfurter once described as having "a kind of a boy scout temperament," and whom others praised for his kindness, reasonableness, and unfailing integrity. "There is no man on the bench now who has less pride of opinion," Frankfurter noted, "… or is more ready to change positions, if his mind can be convinced. And no vanity guards admission to his mind." Burton, a former mayor of Cleveland and United States senator from Ohio, enjoyed several other distinctions as well. Named to the Court in 1945, he was the only Republican appointed between 1933 and 1953; he also proved to be the most liberal of harry s. truman's four appointees, which, considering the nature of the competition, did not demand much liberalism.

Although dubbed by the press as one member of Truman's law firm, which also included fred m. vinson, tom c. clark, and sherman minton, Burton broke ranks with the President on the most crucial test of executive power during his tenure, when he joined Justice hugo l. black's opinion in youngstown sheet & tube co. v. sawyer (1952), which declared Truman's seizure of the nation's steel mills illegal in the absence of congressional legislation.

With the notable exception of joint anti-fascist refugee committee v. mcgrath (1951), however, Burton routinely upheld the Truman administration's efforts to destroy the American Communist party and to purge from the federal government suspected subversives during the high tide of the post-1945 Red Scare. He voted with the majority, for instance, in american communications association v. douds (1950), in dennis v. united states (1951), and in Bailey v. Richardson (1951), in which the vinson court sustained the noncommunist oath provisions of the taft-hartley act, the conviction of eleven top Communist party leaders under the Smith Act, and the federal government's loyalty and security program.

Apart from Minton and stanley f. reed, Burton became the most virulent antiradical on the bench during the 1950s. In Slochower v. Board of Education (1956) he dissented against Clark's opinion voiding the dismissal of a professor who had invoked his right against self-incrimination during an investigation into his official conduct. He also dissented in sweezy v. new hampshire (1957), when the Court reversed the conviction of another professor for refusing to answer questions about his classes posed by the state's attorney general. And he, Minton, and Reed were the only dissenters in pennsylvania v. nelson (1956), when the Court invalidated the sedition law of that state and, by implication, similar statutes in other states.

Generally, Burton followed an equally conservative standard with respect to criminal justice issues. Here, too, he usually endorsed the claims of government rather than those of the individual. In Bute v. Illinois (1948) he wrote for a majority of five that reaffirmed the rule of betts v. brady (1942), which permitted the states to prosecute noncapital felonies without appointing counsel for indigent defendants. He also tolerated forms of police conduct that offended even Frankfurter's conception of due process. (See right to counsel.)

Moments of compassion and insight redeemed Burton's otherwise lackluster record in civil liberties cases. In Louisiana ex rel. Francis v. Resweber (1947), perhaps his most famous opinion, he rebelled against Louisiana's efforts to execute a convicted murderer after the first grisly attempt failed because of low voltage in the electric chair. He also joined Black and Frankfurter in their futile efforts to secure a full hearing before the Supreme Court for Julius and Ethel Rosenberg, who were convicted of espionage at the depths of the cold war with the Soviet Union.

By the conclusion of his judicial career in 1956, moreover, he had emerged as one of the Court's most outspoken foes of racial segregation, despite an unpromising beginning in morgan v. virginia (1946), where he had been the lone dissenter against Black's opinion invalidating the application of that state's Jim Crow law to interstate buses. Four years before brown v. board of education, Burton had been prepared to overrule the separate but equal doctrine in Henderson v. United States (1950). Reluctantly, he bowed to the preference of several colleagues for invoking the commerce clause to topple segregation on southern railroads in that case, but he joined Chief Justice earl warren's opinion eagerly in Brown. Suffering from a debilitating illness that later claimed his life, Burton retired from the Court in 1958.

Michael E. Parrish
(1986)

Bibliography

Berry, Mary F. 1978 Stability, Security, and Continuity: Mr. Justice Burton and Decision-Making in the Supreme Court, 1945–1958. Westport, Conn.: Greenwood Press.