Butler, Pierce (1866–1939)

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BUTLER, PIERCE (1866–1939)

President warren g. harding appointed Pierce Butler to the Supreme Court in 1922 in part because Harding wanted to name a conservative Democrat. He also preferred a Roman Catholic. As with other Harding judicial appointments, Chief Justice william howard taft had an influential role. Before his appointment, Butler had gained some fame as a railroad attorney, particularly for his defense of the carriers in the minnesota rate cases (1913) and for his actions as a regent of the University of Minnesota, which led to the dismissal of faculty members who opposed world war i or who were socialists.

Progressive senators opposed Butler's confirmation, but marshaled only eight votes against him. The New York Times said that Butler's antagonists favored only judges who supported labor unions and opposed corporations; the St. Louis Post-Dispatch countered that Butler's chief qualities were "bigotry, intolerance, narrowness, and partisanism." Taft predictably praised the appointment as "a most fortunate one." Until his death in 1939, Butler consistently followed the ideological direction friends and foes had anticipated.

Butler maintained his hostility to political dissenters while on the bench. He supported the majority in upholding a New York criminal anarchy law in gitlow v. new york (1925). In united states v. schwimmer (1929) he sustained the government's denial of citizenship to a sixty-year-old pacifist woman. In 1931 he broke with the majority in stromberg v. california and in near v. minnesota to favor a state conviction of a woman who had displayed a red flag and a state court injunction against a newspaper editor who had harshly criticized public officials. In the Near case, Butler contended that freedom of the press should not protect an "insolent publisher who may have purpose and sufficient capacity to contrive and put into effect a scheme or program for oppression, blackmail, or extortion." Six years later Butler joined three others to protest the Court's revival of Justice oliver wendell holmes ' s clear and present danger doctrine in herndon v. lowry (1937). In one of his final statements, in Kessler v. Strecker (1939), he approved the deportation of an alien who had once joined the Communist party but had never paid dues and long since had left the organization.

A Justice's views rarely are monolithic. In the area of civil rights, for example, Butler stood alone in opposing state sterilization of mental "defectives" in buck v. bell (1927). Perhaps Butler's Catholicism motivated his vote; in any event, a half century later it was discovered that the sterilized woman had never been an imbecile, as Justice Holmes had callously characterized her. Butler also had strong views on the sanctity of the fourth amendment. In olmstead v. united states (1928) he dissented from Taft's opinion upholding the use of wiretapping for gaining evidence, and in another prohibition case Butler insisted that the Fourth Amendment's prohibition of unreasonable searches should be construed liberally. "Security against unlawful searches is more likely to be attained by resort to search warrants than by reliance upon the caution and sagacity of petty officers," he wrote in United States v. Lefkowitz (1932).

His concern for the criminally accused, however, was not reflected in powell v. alabama (1932), as he dissented with Justice james c. mcreynolds when the Court held that the "Scottsboro Boys" had been denied their right to counsel. He consistently opposed black claimants. For example, he dissented when the Court invalidated the Texas all-white primary election in nixon v. condon (1932); he asserted in breedlove v. suttles (1937) that payment of a poll tax as a condition to exercise voting rights did not violate the fourteenth amendment; and he dissented when the Court first successfully attacked the separate but equal doctrine in missouri ex rel. gaines v. canada (1938). He also sustained state laws that prevented aliens from owning farm land in Porterfield v. Webb (1923).

Throughout the 1920s, Butler found the Court receptive to his conservative economic views. He was an aggressive spokesman for the claims of utilities, particularly in rate and valuation cases. He insisted on judicial prerogatives in such cases, relying on due process of law to justify a court's determination of both law and facts. In general, Butler favored valuing utility property at reproduction costs in order to determine rate structures. He led the Court in striking down a state statute forbidding use of unsterilized material in the manufacture of mattresses in Weaver v. Palmer Bros. Co. (1924); and, in euclid v. ambler realty company (1926), he dissented when the Court, led by his fellow conservative, Justice george h. sutherland, sustained local zoning laws.

In the tumultuous new deal years, Butler was one of the conservative "Four Horsemen," along with McReynolds, Sutherland, and willis van devanter. He opposed every New Deal measure that came before the Court. Butler rarely spoke in these cases, but before the Court reorganization battle he wrote the majority opinion narrowly invalidating a New York minimum wage law. Echoing lochner v. new york (1905) and invoking adkins v. children ' s hospital (1923), Butler declared in morehead v. new york ex rel. tipaldo (1936) that the state act violated the fourteenth amendment's due process clause. Less than a year later, the Tipaldo decision was overturned. Thereafter, Butler and his fellow conservatives found themselves at odds with the new majority. To the end, however, they all resolutely kept the faith.

Stanley I. Kutler
(1986)