More Thoughts on Justice Sutherland
posted by Gerard Magliocca
1. He spent much of his life in Utah. Sutherland was not a Mormon (though his father was for a period of time), but his political career was closely tied to the Church (with respect to the statehood debate in the 1890s, his election to the House of Representatives in 1900, and the attempt to expel Senator Smoot for being Mormon.) This was an unusual background, and may explain his depth of feeling for states’-rights.
2. He was the leading Republican advocate for women’s suffrage in the Senate. In this sense, I wonder why Adkins isn’t taught as a sex discrimination case rather than as a liberty of contract case. Sutherland was the only justice before the 1970s who had anything positive to say about gender equality, and his opinions in Adkins and West Coast Hotel both make that point in strong language.
3. He was a close advisor to Warren Harding, though wisely declined an offer of a Cabinet post in that [ahem] corrupt Administration.
4. His judicial output was stellar. Curtis-Wright established the President’s plenary power over diplomatic relations. Powell was one of the Court’s first great cases on racial justice. Grosjean was one of the Court’s finest statements on the freedom of the press. Euclid established the constitutionality of zoning. Humprhrey’s Executor carved out space for independent agencies. And the dissent in Blaisdell is one of the great statements of originalism.
Anyway, I don’t know if I want a write a book about him, but I may pay a visit to the Library of Congress and look at his papers the next time that I’m in DC.