Justice Oliver Wendell Holmes described his colleague Justice Pierce Butler as a “monolith, there are no seems that the frost can get through. He is of one piece.” Justice Louis Brandeis regarded him as “one of the most powerful on [the] bench.” William D. Mitchell, who served as Butler’s law partner and later Attorney General in President Herbert Hoover’s administration, described him as a “dominating figure.”
Justice Pierce Butler was often described by his contemporaries by both his physical size and his intellect. Justice Holmes reference to Butler as monolithic is appropriate for the Justice’s size, but more importantly for his unwavering commitment to principle or constitutional conservatism.
“Mr. Justice Butler was conservative in his viewpoint on legal and political questions. He had intense respect for the law, and believed in the duty of the Court to interpret the laws and the Constitution strictly in accordance with their terms,” stated Senator Robert A. Taft in remembrance of Associate Justice of the United States Supreme Court Pierce Butler.
Justice Butler, if remembered, is known for being a member of what President Franklin D. Roosevelt called the “Four Horsemen of the Apocalypse.” Butler, along with Associate Justices James McReynolds, Willis Van Devanter, and George Sutherland were the four archconservative jurists who helped to declare several New Deal programs unconstitutional.
Butler, and his conservative Brethren, are viewed as judicial activists and obstructionists, who were rigid reactionaries beholden to an obsolete constitutional philosophy. Further, they are considered failed justices, with the exception of Justice Sutherland, because they supposedly did not have the intellect of Justices Louis Brandeis, Oliver Wendell Holmes, or Benjamin Cardozo. It was these progressive jurists who evolved with the changing society and were “enlightened” enough to understand that the Constitution had to evolve with society.
This is an unfortunate and biased characterization of Justice Butler and his conservative colleagues. Judge David Stras, who currently serves as on the United States Court of Appeals for the Eighth Circuit and formerly served as an Associate Justice of the Minnesota Supreme Court, described Justice Butler as a “supreme technician” and a jurist who deserves further reconsideration. “Butler was not one of the great Justices in the Court’s history, but he is deeply understudied, likely underestimated, and regrettably misunderstood,” wrote Judge Stras.
Pierce Butler also shares a truly American story, that is, similar to Presidents Abraham Lincoln and Herbert Hoover. Butler was born in humble circumstances, and just as with Lincoln and Hoover, through hard work and initiative achieved success as a lawyer and judge. “Pierce Butler was not born into a family of great wealth or political power, as were many of his contemporaries on the Supreme Court,” wrote Judge Stras.
“It is interesting and significant that a conservative viewpoint should develop in a man whose beginnings were so humble as those of Pierce Butler,” stated Senator Taft.
“Born and reared on a farm in a rural western state, by his own efforts he reached the heights,” wrote Wilfrid E. Rumble, who practiced law with Butler. Rumble went on to state that “it was not strange that he [Butler] passionately believed in the right of individuals to forge their own careers…” As evidence, Rumble cited Butler’s opinion in the Senn case in reference to the Fourteenth Amendment and economic liberty:
Our decisions have made it known everywhere that these provisions forbid state action which would take from the individual the right to engage in common occupations of life, and that they assure equality of opportunity to all under like circumstances. Lest the importance or wisdom of these great declarations be forgotten or neglected, there should be frequent recurrence to decisions of this court that expound and apply them.
“Pierce Butler’s life story is an epic of America. From his birth on a small Minnesota farm to the day of his death while a Justice of the Supreme Court of the United States his record was one of obstacles surmounted, of professional distinction achieved, and of merit appropriately rewarded,” stated a resolution passed by the Bar of the Supreme Court of the United States in honor of the Justice Butler.
Butler was born on March 17, 1866 (St. Patrick’s Day) in Northfield, Minnesota. His parents, Patrick and Mary Butler were immigrants from Ireland who had fled the devastating potato famine and eventually settled in Minnesota. The Butler’s had eight children, including Pierce.
Judge Stras wrote that “Butler’s childhood was characterized by hard work and a simple home life.” In addition, to working the family farm and tending to the animals, Butler’s parents also understood the importance of education. “A robust education was also an important part of Butler’s childhood; indeed his father supplemented his education by teaching him Latin and German at the dinner table,” wrote Judge Stras.
Butler was gifted academically and at age 15 he served as a teacher at a country school. James F. Simon wrote that Bulter was athletic and “at 15 he was already over six feet tall and an accomplished wrestler.” Judge Stras also noted that Butler “was a large, imposing man who excelled in such sports as wrestling and boxing, and he was ‘popular among his fellow students and the people of Northfield’ because he ‘made friends easily and held them well.’” Even on the Supreme Court, Butler would develop friendships with his fellow justices even those he philosophically disagreed with.
It was at Carleton College where Butler “first encountered the type of laissez-faire economic philosophy that would later characterize his jurisprudence on the Supreme Court.” Judge Stras wrote that it was the political economy textbook authored by economist and Congressman Amasa Walker, “which argued against government intervention in economic affairs and espoused a distinct laissez-faire philosophy.”
Walker’s The Science of Wealth: A Manual of Political Economy, provided a philosophical foundation for a classical liberal view of the economy, legal, and political system. Judge Stras notes that Walker even argued that “social welfare programs should not shelter the ‘indolent and wasteful’ and that the ‘taint of beggary’ would attach to those accepting government assistance.”
“Of particular significance to his later jurisprudence, the text also took a firm stand on the freedom to contract in an employment relationship, stating that ‘the law cannot say how much [the laborer] shall accept for wages, how many hours shall constitute a day’s work, nor how much the employer shall give him,’” wrote Judge Stras in foreshadowing the influence economic liberty upon Bulter.
In addition to studying political economy at Carleton, Butler also studied constitutional law, and just as with Walker, he would be influenced by Judge Thomas Cooley’s Constitutional Limitations, which reinforced his classical liberal view of constitutional principles.
Butler’s philosophy and values were shaped by his Catholic faith, which “took on an increasingly important role while he was attending Carleton.” Part of his course work included courses on “Moral Philosophy” and “Evidences of Christianity,” which Judge Stras noted “emphasized a belief in God and Christianity.” “By the time Butler graduated from college, religion was a central aspect of his life,” wrote Judge Stras.
Butler’s time at Carleton College was not only important for shaping him intellectually, but it also sharpened his public speaking and debating skills. “While at Carleton, Butler also cemented his debating and speaking skills through activities that he would later characterize as among the most significant aspects of his education,” wrote Judge Stras. It was these speaking and debating skills, which would earn Butler a reputation as a fierce litigator in the courtroom.
After his graduation from Carleton, Butler began to “read” the law at a firm in St. Paul. “Reading” the law meant that Butler did not attend or graduate from law school but rather studied the law himself by reading law books, which was a more “practical” approach to legal education. In 1888 he was admitted to the Bar. Bulter would serve as Assistant County and then County Attorney for Ramsey County. In his service for Ramsey County, Bulter developed a reputation for not only a skilled practitioner, but “the Minnesota Law Journal stated at the time that he had ‘no equal for his age as a criminal lawyer in the state,’ and his ‘integrity, ability, and fearlessness’ made him one of the most popular young lawyers in the county.”
A colleague of Bulter’s described him as having “a remarkable memory, and this, with his impressive appearance, quick wit, mental alertness, and complete mastery of facts, made him a formidable and effective cross-examiner.”
“His ability to analyze and master intricate facts and complicated legal problems, coupled with a genius for figures, made him especially capable in rate litigation…,” stated Rumble. Judge Stras noted that “Butler wrote in highly technical areas of the law, such as public utilities regulation and tax law…” Butler was “a technician content to decide technical matters using a mechanical approach,” argues Judge Stras.
It was not at the Ramsey County Attorney’s office that would bring national attention to Butler’s intellect and abilities as a lawyer. Butler became known as one of the leading corporate attorneys in the Midwest and Norwest. He often represented railroads. As an example, he represented the Chicago, St. Paul, Minneapolis, and Omaha Railroad for six years.
Butler developed a reputation for not just his practical abilities, but also for his technical abilities in understanding issues relating to railroads such as rates and regulations. “In fact, colleagues called him ‘the foremost corporate lawyer of the Northwest,’ and opined that his courtroom skills made him a fierce adversary—so much so it earned him the nickname ‘Fierce Butler,’” wrote Judge Stras.
It was during this time that he developed friendships with William Mitchell, who served as Solicitor General of the United States in President Calvin Coolidge’s administration and also Attorney General in President Herbert Hoover’s administration. Both would serve together in the same law firm.
Mitchell, just as with so many others, referenced Butler’s gift for retaining knowledge, his understanding of the law, and his ability to argue. “He was always a dreaded antagonist at the bar. His preparation of cases was unfailingly thorough. His personal magnetism helped him. He understood human nature…As a cross-examiner he ranked with the greatest advocates of our times,” stated Mitchell.
Butler also won the admiration and friendship of Justice Willis Van Devanter, who at the time was serving as a judge on the Eighth Circuit, and was impressed by his intellect and ability to argue a case. In 1921, Bulter found himself squaring off against former President and future Chief Justice William Howard Taft. Both Taft and Van Devanter would be instrumental in helping to secure Butler’s nomination for the Supreme Court.
Taft had been selected to represent the Grand Trunk Railroad, which was in arbitration with the Canadian government, who selected Butler as their counsel. Just as with Van Devanter, Taft admired Butler’s skills as a lawyer and the two became friends.
“During the proceedings, each man sized up the other professionally, an each was favorably impressed; the men developed a cordial personal relationship, staying at the same hotel and dining together several nights a week,” wrote David Schroeder. Butler was one of Taft’s closest friends. Senator Robert A. Taft recalled that Butler was “one of my father’s dearest friends.”
Simon also notes that Butler also won the respect of Justice Charles Evans Hughes. “Hughes had observed Bulter firsthand as a courtroom advocate when he argued the Minnesota Rate Cases before the Court in 1912,” wrote Simon. Later, when he was serving on the Court, Justice Butler and Justice Van Devanter “dined in Hugh’s New York apartment, where the two conservative members of the Court gauged Hugh’s willingness to accept the chief justiceship.”
Judge Stras wrote that “in light of his previous public service and growing national reputation, Bulter was asked by then Attorney General George Wickersham in 1909 to serve as a Special Assistant Attorney General in the prosecution of Midwestern meatpackers and millers for their suspected violation of federal law” under the Sherman Anti-Trust Act and the Pure Food and Drug Act.
Butler’s experience as a corporate attorney, and the friendships he developed, would be influential in opening the door to his selection as a Court nominee by President Warren G. Harding. However, Butler was practicing law in an era that was already in a philosophical battle over how the Constitution would be interpreted, and how much power state and federal government would be permitted under the Constitution.
Butler would become a crucial participant in this great debate, but his philosophy of constitutional conservatism would end up being defeated as a result of the turmoil of the Great Depression and the political popularity of President Franklin D. Roosevelt. Nevertheless, Butler would be a prime participant in a great constitutional debate between conservatives and progressives during the 1920s and 1930s.
The rise of the Populist and Progressive political movements in the late 19th and early 20th century concerned more than just political, economic, and social reforms. It was a larger debate over how the United States Constitution would be interpreted. Both Populists and Progressives pushed for greater involvement in both the state and federal governments in terms of regulating the economy and reforming society.
This was even a factor in Minnesota. The Farmer-Labor Party and the Non-Partisan League advocated for populist and even socialist policies. These polices ran counter to the philosophy of Bulter and other conservatives, who were quite concerned with the growing influence of both the Populists and the Progressives.
The United States Supreme Court during the late 19th century often struct down legislation that was directed toward economic regulation or social reform. Richard W. Ely, Jr., argues that the Court during this time was dominated by “economic conservatives,” and they “sought to vindicate time-honored principles of limited government and economic freedom in a society undergoing rapid change.” This constitutional philosophy reflected the Court under the leadership of Chief Justice Melville W. Fuller and Chief Justice Edward D. White.
Further, the Court during this era “assigned a high value to property rights, private economic ordering, and limited government.” Although, the Court during this era is often described and labeled as being activist and promoting the cause of laissez-faire and big business, the constitutional philosophy and doctrines did not represent “a sharp break with the past but a flowering of time-honored themes of constitutionalism.” “The classical liberal tradition of the founding generation prized the protection of liberty and private property under a system of limited government,” argues constitutional scholar Richard Epstein.
“Drawing upon Jacksonian principles, they looked with disfavor upon laws favoring any class or group of citizens,” wrote Ely. This era is also referred to as the “Lochner era’ in reference to the infamous Lochner v. New York decision. In 1905, the Supreme Court struct down New York’s Bake Shop Act, which regulated the number of hours a baker could work. Associate Justice Rufus Peckham, writing for the majority of the Court, declared the Bake Shop Act unconstitutional because it violated an individuals “liberty of contract” as protected under the Due Process Clause of the Fourteenth Amendment.
Associate Justice Oliver Wendell Holmes, in his dissenting opinion, wrote that the Court was biased in its reasoning by reading laissez-faire doctrine into the Constitution. Justice Holmes argued, in referring to laissez-faire economics, that not only do “a large part of the country does not entertain,” but the “Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”
Justice Holmes’s famous dissent is often cited by Progressives to demonstrate that the jurists who agreed with the constitutional philosophy behind Lochner were either only trying to defend Laissez-faire or libertarian economics, defend big business, or both. Progressives in both political parties used Lochner as a messaging board for why judicial reform was needed, and evidence for why Big Business had too much political power.
Samuel R. Olken argues that “neither Spencer, nor his American disciple, William Graham Sumner, exerted much influence on American jurisprudence during the Lochner era.” Olken notes that jurists such as the “Michigan law professor Thomas Cooley considered Social Darwinism too abstract for problems of constitutional law and expressed doubts about its harsh assumptions.”
It is also important to note that laissez-faire constitutionalism did not refer to laissez-faire economics. “Laissez-faire constitutionalism refers to a broad construction of constitutional limits of governmental authority in order to facilitate personal liberty and does not necessarily require judicial application of socioeconomic principles to the meaning of constitutional text,” argues Olken.
The opposite, “laissez-faire economics is a socioeconomic theory that posits the primacy of unimpeded market forces in economic affairs and discourages governmental intervention in a presumably self-correcting market,” wrote Olken.
The Court did not always uphold the doctrine of liberty of contract. In Muller v. Oregon, the Court upheld an Oregon law regulating the number of hours women could work in laundries. The Court viewed the law as a constitutional use of Oregon’s police powers under the Tenth Amendment in the protection of women.
Ely argues that Muller “is noteworthy because the Court relied in part on social-science data contained in the brief of Louis D. Brandeis as a factual basis for justifying different legal treatment of women.”
The “Brandeis brief” was an example of sociological jurisprudence, which was a progressive legal philosophy that argued that the “law was not a body of immutable principles and rules, but rather an institution shaped by social pressures that were constantly changing.” In other words, changing societal conditions should influence how a judge rules on a particular case, and the Constitution is not a “fixture,” but it is organic and evolves.
Sociological jurisprudence was the direct opposite of declaratory jurisprudence, which was a philosophy that believed that the “Constitution was fundamental, fixed, and absolute.”
“Scholars see the 1920s as a battleground between traditionalists fearful of the new ways and modernists eager to shed the shackles of older ideas and practices,” wrote Melvin I. Urofsky. As Urofsky noted this “played out in the battle within the Court over those struggling to maintain the older jurisprudence and those wanting the Court to promote a law reflective of newer ideas and conditions.”
The Progressive Movement had adherents within both the Republican and Democratic parties. President Theodore Roosevelt championed a progressive legislative agenda and Democrats ranging from the failed multi-presidential candidate William Jennings Bryan to President Woodrow Wilson.
Progressives argued that the Constitution was not only flawed, but that limited government principles could not adequately govern a modern industrial society. Limited government may have worked for Jefferson and Jackson, but the nation had evolved and the Constitution had to change to meet the needs of society. Progressives argued that only the federal government could provide the ability to check the excess of big business and provide economic security.
Progressives would look to the federal government through the administrative state or bureaucracy to provide the necessary regulation and “administration” for society. However, even though not all Progressives always agreed on policy, they understood that the Constitution was an obstacle to their reform agenda.
As Ronald J. Pestritto describes:
The Progressives understood the intention and structure of the Constitution very well; they knew that it established a framework for limiting the national government, and that these limits were to be upheld by a variety of institutional restraints and checks. They also knew that the limits placed on the national government by the Constitution represented major obstacles to implementing the progressive policy agenda. Progressives had in mind a variety of legislative programs aimed at regulating significant portions of the American economy and society, and at redistributing private property in the name of social justice. The Constitution, if interpreted and applied faithfully, stood in the way of this agenda.
“Roosevelt, like Wilson, understood that the newly empowered federal bureaucracy could not coexist with the original constitutional vision of federalism or of separation of power,” argues Pestritto.
Conservatives in both the Republican and Democratic parties, while having political differences on policy issues such as tariffs, were the first and last line of defense of traditional constitutionalism against Progressivism. For conservatives within the Republican Party during the 1920s, the Constitution was the foundation of the American system.
The adherence to the Constitution during this era was even described a “cult of Constitution worship” among conservatives. However, it was not just conservative Republicans that embraced a strong faithfulness to the Constitution, but also some Democrats.
Conservative Democrats or sometimes described as “Cleveland Democrats,” after President Grover Cleveland tended to support limited government, free enterprise, private property rights, federalism, among others that would position them closely with the conservative Republicans.
Several of the Gilded Age Justices on the Court who adhered to the “Lochner” philosophy had been Democrats. Justice James McReynolds, a Southern Democrat and who served in President Woodrow Wilson’s administration and was nominated by Wilson to the Court, was another conservative. In 1924, the Democratic Party would nominate John W. Davis, a constitutional lawyer and conservative, as their presidential candidate. Finally, Pierce Butler was a Democrat who shared the conservative philosophy of the “Cleveland Democrats.”
With the election of President Warren G. Harding in 1920, the nation rejected the progressivism of President Wilson. President Harding outlined a conservative policy agenda for his administration. This included appointing conservatives to the Supreme Court and the lower federal courts.
During the 1920 campaign this was a concern for former President William Howard Taft, who also had a strong interest on being nominated to the Court. The former President argued that “there is no greater domestic issue in this election than the maintenance of the Supreme Court as the bulwark to enforce the guaranty that no man shall be deprived of his property without due process of law.”
President Harding would appoint four Justices to the Supreme Court, and Taft would serve as an adviser making recommendations. This included his own nomination as Chief Justice. Taft was concerned about preventing the Progressives from obtaining further strength on the Court. Specifically, he was concerned about Justices Oliver Wendell Holmes and Louis Brandeis obtaining greater influence.
Henry J. Abraham describes that once a vacancy on the Court occurred Taft “literally bombarded the president with firm recommendations and casual suggestions.” Taft’s goal was to “block the nomination of anyone who might side with that ‘dangerous twosome,’ Holmes and Brandeis.”
President Harding’s Court appointees included former President William Howard Taft as Chief Justice, George Sutherland, Pierce Butler, and Edward Sanford as Associate Justices.
With the death of Chief Justice Edward White, Harding would nominate Taft as the new Chief Justice. Following Taft, Harding nominated former Utah Senator George Sutherland, and Bulter and Sanford would follow.
When Taft was nominated for Chief, he received a letter of good wishes from his friend Pierce Butler congratulating the former President. “I felicitate you because it is an honor to any man to be chosen to that, the most exalted position in the world, and because no one who is qualified to discharge the duties of the office can fail to rejoice in attaining it. But the country is to be congratulated much more than you are,” wrote Bulter.
All four of Harding’s appointees were considered conservative in their judicial philosophy. In addition to being conservative, they also shared a similar philosophy of supporting property rights and being “business-oriented attorneys.” Taft also strongly supported all three, especially Sutherland and Butler.
When it came to President Harding’s Court nominees Chief Justice Taft and Justice Sutherland also usually viewed as successful jurists even though they were conservative because of their intellectual and administrative capabilities, while Bulter and Sanford do not receive high rankings for their service.
Erving Beauregrard, in an article for The Supreme Court Historical Society Quarterly, argued that President Harding’s appointments to the Court “have not received the credit they deserve.” Beauregard argues that Harding, along with his four Court appointees deserve better treatment and reconsideration:
President Harding’s appointments to the Supreme Court produced profound impacts. Objective review and assessment of the opinions of these four Justices reveal their decision-making to be of far more varied nature than that with which they are usually credited. When their total performance is considered, their service and contributions to the law add luster to their own reputations, as well as Harding’s unfortunately short term of service.
Harding nominated Bulter to the Court in November 1922 and he would be confirmed by the Senate by a vote of 61-8 by the end of December. Butler’s nomination was unique because Harding wanted to nominate a Democrat, and Taft’s first preference was John W. Davis. Davis was a conservative lawyer, and he was a “Cleveland Democrat.” Davis, however, signaled his disinterest in the position, and Taft’s next choice was Butler.
Taft viewed Butler as a “broad-minded, courageous, hard-hitting, upstanding man.” Butler, Taft believed would be a “fierce defender of ‘sound constitutional views.’” As noted previously, Taft had befriended Bulter and he was impressed with his abilities as a litigator. This also included Justice Van Devanter who shared Taft’s support of Butler. Van Devanter even rallied support for Butler’s nomination. He requested the opinion of Eighth Circuit Judge Walter H. Sanborn in regard to Butler’s qualifications.
“I have to say that I cannot think of anyone better qualified for such a place by character, ability, learning, judgement, and temperament, then he,” stated Judge Sanborn. Judge Sanborn further described Butler as “above reproach” and “one of the few great men of my acquaintance.”
Mitchell also argued that Butler’s experience as a lawyer more than qualified him for the nomination. “I doubt if any man ever took a seat on this bench with a broader, more varied experience at the bar, or after more of those contacts with human nature which develop practical judgment in dealing with human affairs,” noted Mitchell.
Butler’s nomination also fit President Harding’s criteria and his preference for a constitutional conservative. “Butler allowed Harding to represent several constituencies—Butler was a Democrat, from the Midwest, and he was a Roman Catholic,” wrote Peter G. Renstrom. Justice James McReynolds, who had been nominated to the Court by President Woodrow Wilson, was also a conservative Democrat. Both Butler and McReynolds are considered the two most conservative members of the Court during the 1920s and 1930s.
Both Taft and Van Devanter were enthusiastic about Butler joining the Court. “It is a long time since anything has been so gratifying to me as was your nomination by the President today. For several weeks, I have been striving and hoping for this result in a very modest way—not as a matter of friendship for you, but to promote the public good and maintain the high reputation and traditions of the greatest institution established by the Constitution,” stated Justice Van DeVanter.
However, not everyone was supportive of Butler’s nomination. Although Butler’s nomination was not as fiercely contested as some modern nominations such as when President Ronald Reagan nominated Judge Robert H. Bork or when President Donald Trump nominated Judge Brent Kavanaugh.
Progressives opposed Bulter’s nomination. For some time, Progressives advocated various judicial reforms in an effort to curb what they considered to be the judicial activism of the courts that tended to favor big business and strike down economic and political reforms.
Justice Brandeis believed that Taft’s litmus test for judicial nominees would be based “on their views about property rights.” It was over Butler’s nomination that Justice Brandeis would recall resulted in the “only near heated argument” he had with the Chief Justice on the Court.
In terms of opposing judicial nominees, Paul D. Moreno wrote that “Progressive resistance began in earnest with the appointment of Butler in 1922.” “They feared that his background as a corporate lawyer would make him another voice for Big Business on the Court.” David Schroeder noted that the “Minneapolis Star ran a blistering, page-one attack against Bulter and his nomination.” The Minneapolis Star featured “an assortment of progressives, liberal lawyers, progressive Republicans, Farmer-Labor party leaders, and independent Democrats” who were opposed to Butler.
Butler was also opposed by labor unions, and many of these interest groups believed that he was “a pugnacious and aggressive defender of the so-called vested interests against human rights.” Samuel Gompers, the head of the American Federation of Labor, described Butler as a “Impossible reactionary.” Minnesota’s Farmer-Labor Party was also optimistic about defeating Butler’s nomination because they had been successful in defeating Senator Frank Kellogg.
Minnesota’s newly elected Senator Henrik Shipstead sounded the alarm that it was “very bad public policy to select our Supreme Court justices from that group of lawyers in this country who are in the employ of the big corporations and are usually found defending those corporations against the public interest.”
Perhaps the biggest charge thrown against Butler came from some of the controversies surrounding his time as a member of the Minnesota Board of Regents. Butler had served as a member of the Board of Regents, and as Rumble noted he “was instrumental in securing the affiliation of the University Medical School with the Mayo Foundation…” Butler also ran into controversy with faculty members during World War I.
Butler was a fierce patriot, and he took loyalty to the United States seriously. Academics accused Butler of being a bully and “distinguished himself for suppression of academic freedom.” William A. Schaper, a professor at the University of Minnesota, had been dismissed from his faculty position by the Regents during World War I for making sympathetic statements toward Germany.
Robert C. Post wrote that Butler believed that “a citizen owes allegiance in full measure to the government,” which includes “full and faithful loyalty” and “submission to the will of…lawful authority.” In regard to the termination of Schaper, Post wrote that Butler argued that his “removal ‘is in harmony with the present tendency to silence disloyal communities, institutions, publications, officials, and individuals. We must see that sincere loyal Americans are made the instructors of our youth, and not blatherskites such as this man.’” Also, Post stated that not only was Butler patriotic, but five of his children were serving in the military.
Schaper blamed Bulter for his termination and he would travel to Washington, D.C, to lobby against his nomination. Progressive Senators such as Shipstead already supported his cause, but he also found allies in progressive Senators Robert LaFollette, George W. Norris, Smith W. Brookhart, and Edwin F. Ladd.
“Fighting Bob” LaFollette was especially sympathetic, because he was not only a leader of the progressive cause, but his “own opposition to World War I policies had nearly resulted in his removal from the Senate.” LaFollette was described as “fighting mad” in his opposition to Butler. Henry J. Abraham noted that Senator LaFollette was able to establish enough opposition to block Butler’s nomination during a special session of Congress, but “after a month’s delay, finally approved Butler by a vote of 61 to 8, with the unusually large number of 27 abstentions.”
The Supreme Court under the leadership of Chief Justice William Howard Taft reflected the conservatism of the Republican presidential administrations of Harding and Coolidge. “The Taft Court’s principal legacy was its continuation and revitalization of the laissez-faire jurisprudence of the Fuller and White Courts that preceded it,” wrote Peter G. Renstrom. Further, Renstrom argues that for Chief Justice Taft “it was time to move away from progressive expansionism and restore the country to its traditional constitutional bases.”
Chief Justice Taft found philosophical allies in all of President Harding’s Court appointments. They helped shape the conservatism of the Taft Court. The Chief Justice was joined by Justices George Sutherland, Pierce Butler, Edward Sanford, Willis Van Devanter, and James McReynolds who all made up the conservative wing of the Court. The conservative block helped to deter the progressivism of Justices Oliver Wendell Holmes, Louis Brandeis, and Harlan Fisk Stone.
The conservatism of the Taft Court reflected the conservatism of the Harding, Coolidge, and Hoover administrations. It is also assumed that the Taft Court obliterated progressive legislation, but this is untrue. “The Supreme Court under William Howard Taft sometimes curtailed progressivism, but also preserved and extended progressive reforms,” wrote Moreno.
“Moreover, between 1870 and 1937 the Supreme Court actually upheld most of the industrial regulations before it, which belies the commonly held inaccurate perception that the Justices primarily interpreted the Constitution through the lens of laissez-faire economics,” noted Olken.
Justice Butler’s judicial philosophy reflected laissez-faire constitutionalism, and at times he would be even more conservative than Taft. Butler would find agreement with Justices Van DeVanter, McReynolds, and Sutherland. However, to suggest that Buttler wholeheartedly endorsed laissez-faire jurisprudence is not an accurate assessment.
Judge Stras argues that scholars “fail to give him credit for the intricacy and sophistication with which he approached constitutional questions.” It is accurate, noted Judge Stras, to state that “Butler often took positions that were favorable toward constitutional protection of economic liberties through judicial restriction of government action,” but just applying the label of reactionary or “ultraconservative” does not consider his entire record.
Butler’s judicial philosophy was conservative, that is, he believed that the Constitution served as the foundation for the law. “he believed that great judges of the past had lighted a path which led straight to the proper construction and decision of constitutional questions,” stated Rumble. Thomas D. Thatcher reflected that Justice Butler not only “felt the responsibility of judicial power,” but that the Court had a responsibility in preserving the Constitution.
Justice Butler had an “unwavering loyalty to the traditions of the Court and to his lofty conceptions of its function in preserving our constitutional heritage,” stated Thatcher in referencing Chief Justice Charles Evans Hughes description of Butler’s philosophy.
The way Butler wrote his opinions also reflected his judicial philosophy, and it is also an unfortunate reason why he is rated poorly as a Justice. “In writing he was not a stylist and had no flair for an unusual turn of a phrase or for the use of uncommon language, but he did have the ability to express himself clearly,” stated Rumble.
Justice Butler also disagreed with the notion of expanding his opinions beyond the scope of the constitutional questions involved in a specific case. He also disagreed with the sociological jurisprudence approach, which was favored by Justice Brandeis. As Rumble explained:
His decisions evidence a searching knowledge of the facts involved and a logical, concise treatment of them. No lawyer can complain of any decision of his that it was based on only part of the established facts or that he made the facts fit his views of the law. He was careful to limit his opinions to the questions actually presented, and in writing them his sole effort was to lay a factual foundation for the opinion he intended to express and then state it clearly and concisely.
George I. Haight described Butler’s writing as having “the craftsmanship of a lawyer, the keenness of observation, the power of analysis, the clarity of reasoning, the understanding of principles, and the virtue of lucid statement.” Thatcher reflected that in “reading his opinions one is constantly impressed with the strengthen of his determination that the individual should have a fair deal under the law.”
Judge Stras argues that many of Butler’s opinion “were written in highly technical areas, such as in the fields of public utilities regulations and taxation,” which “to date no scholar has systematically analyzed these areas…” Also, Judge Stras notes that Justice Butler “was a deeply private man and employed a minimalist approach to crafting judicial opinions even in high-profile cases.”
Thatcher stated that his “opinions will not be read as legal essays.” Judge Stras argues that Justice Butler is also being compared to those he served with, especially Justices Holmes and Brandeis, who are rated not only more highly as jurists, but also for their writing.
With Butler joining the Court, Chief Justice Taft found a trusted ally to counter the progressive jurisprudence of Holmes and Brandeis. Even though there could be sharp philosophical disagreements on the Court, Butler had the ability to befriend his fellow Brethren on the Court. Prior to joining the Court, Butler was known for his many friends and his generosity toward them and others. As Rumble reflected:
Despite a somewhat austere appearance he was in fact a simple, modest man, without pretense or sham and with a genuine love of people. He had innumerable friends and was never too busy to advise and aid them in their personal troubles or to stop for a friendly chat.
William Mitchell noted that “despite his force and power, he was no grim person. He liked people. He was companionable, with a delightful sense of humor, and an inexhaustible fund of anecdote.”
One area of law that the Taft Court continued or at least did not repudiate was the defense of economic liberty and the protection of property rights through the Due Process Clause of the Fifth and Fourteenth Amendments. Justice Butler, along with Justices Sutherland, Van DeVanter, and McReynolds, and sometimes joined by Chief Justice Taft and Justice Sanford were the strongest proponents of this philosophy. “If I were to name any one thing as most influencing his judicial philosophy and expression, it would be his love of liberty,” stated Mitchell.
Justice Butler “believed that ‘the highest function of the state is to see to it that while none shall be wronged, all shall ever be free in the pursuit of happiness and the highest good.’” Robert C. Post wrote that for Butler “the contemporary ‘passion for new enactments,’ the tendency to ‘dwell too much upon the inadequacy of present law and seek to remedy existing evils by a multitude of legislative experiments,’ exemplified ‘a kind of state socialism’ that posed the ‘danger of grave error.’”
“Too much paternalism, too much wet-nursing by the state, is destructive of individual initiative and development. An athlete should not be fed on pre-digested food, nor should the citizens of tomorrow be so trained that they will expect sustenance from the public ‘pap,’” stated Butler. “Self-government by self-control” was a principle for Butler and it was reflected in his belief in a Constitution, which limited the powers of government and protected liberties.
Thatcher argued that Butler “gave broad scope under the due process clause to the right of an individual to engage in a lawful calling.” In addition, “he believed that there were definite limitations upon the powers of government to regulate any business,” stated Thatcher. As Justice Butler argued in O’Gorman & Young v. Hartford Ins. Co:
Also, it must be accepted as settled that the right to regulate a business does not necessarily imply power to fix the scale for services therein or to trespass on the duties of private management…In order to justify the denial of the right to make private contracts, some special circumstances sufficient to indicate the necessity therefor must be shown by the party relying upon the denial.
Thatcher noted that in Sinclair v. United States, Butler “emphasized the right of the citizen to be protected against the excess of government.” As Justice Butler wrote:
It has always been recognized in this country, and it is well to remember, that few if any of the rights of the people guarded by fundamental law are of greater importance to their happiness and safety than the right to be exempt from all unauthorized, arbitrary or unreasonable inquiries and disclosures of their personal and private affairs.
However, as Senator Taft stated, Justice Butler was not an ideologue, that is, he did not believe that “liberty of contract” was absolute or universal. “He recognized, as in the case of Highland v. Russell Car and Snow Plow Company that liberty of contract ‘is not absolute or universal, and that Congress may regulate the making and performance of such contracts whenever reasonably necessary to effect any of the great purposes for which the national government was created,’” stated Senator Taft.
The constitutional questions relating to economic liberty versus government regulation would resurface throughout the Court during the 1920s and 1930s. In 1923, in Adkins v. Children’s Hospital, the precedent established in Lochner was reaffirmed by the conservative block on the Court. Justice Butler joined the majority opinion authored by Justice Sutherland in agreeing that a federal minimum wage law violated the Due Process Clause of the Fifth Amendment and an individual’s liberty of contract.
In Jay Burns Baking Co. v. Bryan, Justice Butler, wrote the majority opinion “invalidating a Nebraska statute that required loaves of bread to be sold in strict weight measures.” Jonathan Lurie argues that from Butler’s “perspective this case was easily decided.” “Bread making was a private matter with customers free to but the finished product on the open market or look elsewhere,” wrote Lurie.
Justice Butler did not agree that the Nebraska law, which was intended “to prevent bread manufacturers from defrauding the public by selling bread below the weight specified” was a reasonable regulation. Butler argued that the regulation subjected “bakers and sellers of bread to restrictions which [were] essentially unreasonable and arbitrary.”
In addition, Justice Butler argued that states could not “under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.”
Economic liberty was again the issue in Weaver v. Palmer Bros., where Justice Butler, who wrote the majority opinion, struct down “a Pennsylvania law that completely prohibited the use of ‘shoddy’ [cut up or torn up fabrics] and certain secondhand materials in mattress production.” Judge Stras noted that Butler reasoned that the law was “purely arbitrary,” and it therefore violated the Fourteenth Amendment because “the State of Pennsylvania had failed to present evidence of ‘danger to the health of users of comfortables [sic] filled with shoddy.’”
“Lochner and other economic liberties cases were emblematic of Justice Butler’s view that private property rights deserved robust constitutional protection,” wrote Judge Stras. Nevertheless, Butler did not always agree that Lochner should be applied to all state or federal regulations.
Lurie argues that the Taft Court “appeared to be the last Court dominated by classical legal thought.” Chief Justice Taft was also concerned about the Court shifting more in the direction of Justice Brandeis and the progressive philosophy of the “living Constitution.”
By November 1929, the Chief was becoming more pessimistic, because he did not know if President Hoover would appoint conservatives to the Court. “The truth is Hoover is a Progressive, just as Stone [Justice Harlan Fisk Stone] is, just as Brandeis is, and just as Holmes is,” stated Taft. Further, he stated that “Hoover would put in [the Supreme Court] some rather extreme destroyers of the Constitution.”
For Taft, “the only hope,” the Chief told Justice Butler, “was for us to live as long as we can and thus ward off an attempted revolution.” During his final days, Lurie notes that Taft “was obsessed by his determination” to preserve the Court from what he called the “bolsheviki.” This was a direct reference to Justices Holmes, Brandeis, and Stone.
The “us” that Taft referred to was the conservative block: Justices Bulter, Van DeVanter, McReynolds, Sutherland, and Sanford. Although, both the Chief Justice and Justice Sanford would pass away on the same day, March 8, 1930.
Taft had told Justice Butler that it was only the conservatives who could “prevent disastrous reversals of our present attitude.” What the Chief Justice referred to was the “body of decisions since the First World War that had limited the scope of both federal and state authority over the nation’s economic arrangements,” wrote Michael E. Parrish.
Parrish noted that Taft’s “prediction proved more than accurate about the new president [Hoover] and his three appointments over the next three years—Hughes [Chief Justice Charles Evans Hughes], Roberts [Owen J. Roberts], and Cardozo [Benjamin Cardozo].
“Whatever particular dates are chosen, there are good and substantial reasons for regarding the Hughes era as the true birthplace of modern, twentieth-century judicial constitutionalism…,” argues Parrish. The reason for this is the philosophical battle over the Constitution would come to its highwater mark with the New Deal. By 1937, the jurisprudence of Justice Butler and his conservative colleagues on the Court would be swept away and the “living Constitution” philosophy of Justice Brandeis would become dominant.
“This campaign is more than a contest between two men. It is more than a contest between two parties. It is a contest between two philosophies of government,” stated President Hoover at the close of the 1932 presidential campaign. Hoover, whom Taft had been concerned about being too progressive, was now warning the nation about the radicalism of soon-to-be President Franklin D. Roosevelt’s New Deal. As Hoover stated:
We are told by the opposition that we must have a change, that we must have a new deal. It is not the change that comes from normal development of national life to which I object, but the proposal to alter the whole foundations of our national life which have been builded through generations of testing and struggle, and of the principles upon which we have builded the nation…They are proposing changes and so-called new deals, which would destroy the very foundations of our American system.
Hoover was engaged in a political battle in order to preserve the Constitution, and Justice Butler was waging the same fight within the chambers of the Supreme Court. Richard Epstein described the context of what would become known as the constitutional revolution of 1937.
Starting with the rise of industrialization in the post-Civil War period and gaining traction after 1900, the pendulum on political philosophy and constitutional theory swung sharply away from these twin verities of private rights and limited government. In their place arose a different understanding of the relationship of the individual to the state. That new vision rested on an intellectual worldview that dominated the Progressive Era, which ran from about 1900-1932. Under President Franklin D. Roosevelt, that philosophy quickly formed the foundation for the modern New Deal constitutional order, which received its whole-hearted judicial blessing during the momentous October 1936 term of the United States Supreme Court. In that term, a sharply divided Court decisively repudiated what remained of the classical liberal synthesis, which prized both federalism and the strong protection of economic liberties.
The New Deal was President Roosevelt’s legislative response to the Great Depression. The measures were not just economic policies directed toward relief, but also extensive transformative reforms. Roosevelt had promised bold experimentation in public policy. “There must be power in the States and the nation to remold, through experimentation, our economic practices and institutions to meet changing social and economic needs,” stated Justice Brandeis.
“For a generation the course of public policy and constitutional development had alternated between the laissez-faire, self-regulating market approach to the political economy and the interventionist, regulatory approach,” wrote Herman Belz, Alfred H. Kelly, and Winfred A. Harbison.
Roosevelt’s New Deal, was a crucial event that led to the acceleration of the growth of the federal government. The late Judge Robert H. Bork described the “New Deal as an economic and governmental upheaval.” Further, Judge Bork argued that the “New Deal stood for a sudden and enormous centralization of power in Washington over matters previously left to state governments or left in private hands, a centralization accomplished largely through the assumption of greatly expanded congressional powers to regulate commerce and lay taxes.”
As Congress continued to pass one New Deal measure after another the Supreme Court soon entered the fray. Jim Powell wrote that “for three years, the U.S. Supreme Court defended economic liberty and struct down one New Deal law after another.” Some of these were key Roosevelt policies such as the Agricultural Adjustment Act and the National Industrial Recovery Act (NRA), which was the cornerstone of the New Deal.
“The conservatives who struct down the New Deal measures saw them as an assault on private property, contractual rights, and the laissez-faire market,” wrote Belz, Kelly, and Hardison. The New Deal legislation also resulted in a “tremendous extension of federal authority, much of it at the expense of the states.”
It is often assumed that the conservatives on the Court, who infamously became known as the “Four Horsemen of the Apocalypse,” were solely responsible for striking down New Deal legislation. The “Four Horsemen” were Justices Butler, Sutherland, McReynolds, and Van Devanter. They were often joined by Chief Justice Charles Evans Hughes and Justice Owen Roberts, which made up the conservative block.
“But for three years, the U.S. Supreme Court defended economic liberty and struct down one New Deal law after another,” stated Powell. Justice Butler “had the distinction of voting to overturn sixty-nine federal statutes after Franklin D. Roosevelt became President,” wrote Eugene Trani and David Wilson.
President Roosevelt and other progressives argued that the Court was not only obstructing, but it was “government by judiciary.” Progressives had been arguing about this for many years. “Since 1920 the Court has invalidated more legislation than in fifty years preceding,” wrote Felix Frankfurter, a professor of Law at Harvard and future Justice of the Supreme Court. One progressive referred to the Court as “the economic dictator in the United States.”
The “Four Horsemen” are often blamed for obstructing the New Deal during Roosevelt’s first term, but this is not accurate. The Hughes Court was certainly divided philosophically with Justices Butler, McReynolds, Southerland, and Van Devanter forming the conservative wing, while Justices Brandeis, Holmes, Stone, and Cardozo “being more sympathetic to the New Deal”. Chief Justice Hughes and Justice Roberts were often the “swing” votes but tended to side with the conservatives.
When examining the decisions of the Hughes Court several New Deal laws were actually struct down with the support of the progressive justices. As an example, a unanimous Court declared the NRA unconstitutional. In Schechter Poultry Corp. v. United States or the “Sick Chicken Case,” Chief Justice Hughes, who wrote on behalf of the Court, stated that the National Industrial Recovery Act was unconstitutional because it violated the commerce clause, and by passing the law Congress had delegated too much power to the Executive Branch for its ability to regulate the economy.
“But even these liberals were suspicious of the trend toward centralization inherent in New Deal policies and joined with the conservative justices on some issues,” wrote James W. Ely, Jr. This is a point that G. Edward White makes in The Constitution and the New Deal, that is, the often-forgotten progressive justices who also helped to invalidate some New Deal measures.
“Indeed, a near unanimous Court raised numerous constitutional objections to these poorly drafted legislative reforms,” noted Olken in describing the Hughes Court. As Ely argues this is why “the conservatives were usually able to command a majority in opposition to the New Deal.”
The Court’s decision was part of a series of decisions on “Black Monday,” May 27, 1935, which not only resulted in Roosevelt’s flagship recovery program being declared unconstitutional, but other New Deal laws as well. “We have been relegated to the horse-and-buggy definition of interstate commerce,” Roosevelt lamented in response to the Court’s decision in the “Sick Chicken” case.
In 1936, Justice Butler would write the majority opinion defending the doctrine of liberty of contract and upholding the Adkins precedent. The issue of minimum wage came before the Court again in Morehead v. New York ex rel. Tipaldo. The state of New York had passed a law regulating wages, especially relating for women. In a divided Court, Justice Butler, joined by Justices Sutherland, McReynolds, Van Devanter, and Roberts declared the law unconstitutional.
As Justice Butler wrote:
“The state is without power by any form of legislation to prohibit, change or nullify contracts between employers and adult women workers as to the amount paid. Any measure that deprives employers and adult women of freedom to agree upon wages, leaving employers and men free to do so, is necessarily arbitrary, a violation of due process.”
Further, Justice Butler wrote “the right to make contracts about one’s affairs is a part of the liberty protected by the due process clause.”
Chief Justice Hughes, joined by Justices Brandeis, Stone, and Cardozo, dissented from Justice Butler’s opinion. Hughes repudiated Adkins and began to undermine liberty of contract. As the Chief Justice wrote:
I cannot agree that the case should be regarded as controlled by Adkins v. Children’s Hospital. And I can find nothing in the Federal Constitution which denies to the state the power to protect women from being exploited by overreaching employers through the refusal of a fair wage as defined in the New York statute and ascertained in a reasonable manner by competent authority…
The Tipaldo decision, along with the Court’s other invalidations of New Deal legislation, triggered Roosevelt to spend political capital and introduce a plan to reform the Supreme Court. With the severity of the Depression and popularity of the New Deal, he argued that the Court was standing in the way of recovery. As Roosevelt argued:
We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men. I want – as all Americans want – an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power – in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.
In addition, when accepting renomination in 1936, Roosevelt dismissed the argument being made by conservatives that the new Deal was attempting to undermine the Constitution:
These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power. Our allegiance to American institutions requires the overthrow of this kind of power. In vain they seek to hide behind the Flag and the Constitution. In their blindness they forget what the Flag and the Constitution stand for.
After his landslide reelection, Roosevelt introduced his Judicial Procedures Reform Bill of 1937 or the infamous “Court Packing” plan. Roosevelt’s “reform” was to expand the Court by allowing the president to appoint a new justice for any that was over 70 years of age.” The main objective was to “pack” the Court and undermine the “Four Horsemen,” all of whom were over the age of 70.
Politically, Roosevelt’s “Court Packing” plan would fail, but the Hughes Court itself started to change direction philosophically as a result of the Chief Justice and Justice Roberts. “The switch in time which saved nine” occurred in 1937 when Justice Roberts, who had joined Butler’s opinion in Tipaldo, now reversed himself in West Coast Hotel Company v. Parrish. Once again, the Court was asked to decide whether a state minimum wage law was constitutional.
Chief Justice Hughes, joined by Justices Roberts, Stone, Brandeis, and Cardozo, upheld a Washington State law building on the precedent established in Muller v. Oregon. The Chief Justice overturned both Adkins and Tipaldo in his decision rejecting liberty of contract. As the Chief Justice wrote:
In each case, the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.
Justice George Sutherland, joined by Justices Butler, McReynolds, and Van Devanter, dissented and held firm to Adkins and Tipaldo. Justice Sutherland in his dissent not only defended the jurisprudence of the “Four Horsemen”:
Under our form of government, where the written Constitution, by its own terms, is the supreme law, some agency, of necessity, must have the power to say the final word as to the validity of a statute assailed as unconstitutional. The Constitution makes it clear that the power has been entrusted to this court when the question arises in a controversy within its jurisdiction, and, so long as the power remains there, its exercise cannot be avoided without betrayal of the trust.
It has been pointed out many times, as in the Adkins case, that this judicial duty is one of gravity and delicacy, and that rational doubts must be resolved in favor of the constitutionality of the statute. But whose doubts, and by whom resolved? Undoubtedly it is the duty of a member of the court, in the process of reaching a right conclusion, to give due weight to the opposing views of his associates; but, in the end, the question which he must answer is not whether such views seem sound to those who entertain them, but whether they convince him that the statute is constitutional or engender in his mind a rational doubt upon that issue. The oath which he takes as a judge is not a composite oath, but an individual one. And, in passing upon the validity of a statute, he discharges a duty imposed upon him, which cannot be consummated justly by an automatic acceptance of the views of others which have neither convinced, nor created a reasonable doubt in, his mind. If upon a question so important he thus surrender his deliberate judgment, he stands forsworn. He cannot subordinate his convictions to that extent and keep faith with his oath or retain his judicial and moral independence. The suggestion that the only check upon the exercise of the judicial power, when properly invoked to declare a constitutional right superior to an unconstitutional statute, is the judge’s own faculty of self-restraint is both ill-considered and mischievous. Self-restraint belongs in the domain of will, and not of judgment. The check upon the judge is that imposed by his oath of office, by the Constitution, and by his own conscientious and informed convictions, and since he has the duty to make up his own mind and adjudge accordingly, it is hard to see how there could be any other restraint. This court acts as a unit. It cannot act in any other way, and the majority (whether a bare majority or a majority of all but one of its members) therefore establishes the controlling rule as the decision of the court, binding, so long as it remains unchanged, equally upon those who disagree and upon those who subscribe to it. Otherwise, orderly administration of justice would cease. But it is the right of those in the minority to disagree, and sometimes, in matters of grave importance, their imperative duty to voice their disagreement at such length as the occasion demands — always, of course, in terms which, however forceful, do not offend the proprieties or impugn the good faith of those who think otherwise.
It is urged that the question involved should now receive fresh consideration, among other reasons, because of “the economic conditions which have supervened”; but the meaning of the Constitution does not change with the ebb and flow of economic events. We frequently are told in more general words that the Constitution must be construed in the light of the present. If by that it is meant that the Constitution is made up of living words that apply to every new condition which they include, the statement is quite true. But to say, if that be intended, that the words of the Constitution mean today what they did not mean when written — that is, that they do not apply to a situation now to which they would have applied then — is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.
Justice Sutherland’s powerful dissent was not just a rebuke of the Court for rejecting the precedent of Adkins, but also a rebuke of the “living Constitution.” Finally, Sutherland argued that anger should not be taken out on the Court for protecting the Constitution, just because a policy or legislation is popular.
“If the Constitution, intelligently and reasonably construed in the light of these principles, stands in the way of desirable legislation, the blame must rest upon that instrument, and not upon the court for enforcing it according to its terms. The remedy in that situation — and the only true remedy — is to amend the Constitution,” wrote Justice Sutherland.
Sutherland also quoted from Judge Thomas Cooley, who had also served as an influence to Justice Butler, as to the danger of the “living Constitution:”
Judge Cooley, in the first volume of his Constitutional Limitations (8th ed.), p. 124, very clearly pointed out that much of the benefit expected from written constitutions would be lost if their provisions were to be bent to circumstances or modified by public opinion. He pointed out that the common law, unlike a constitution, was subject to modification by public sentiment and action which the courts might recognize, but that “a court or legislature which should allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders would be justly chargeable with reckless disregard of official oath and public duty, and if its course could become a precedent, these instruments would be of little avail. . . . What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it.”
Controversy remains over whether or not Chief Justice Hughes and Justice Roberts joined the progressives in affirming the Washington State minimum wage law because of Roosevelt’s Court Reform plan, but regardless, by 1937 a fundamental change had occurred within the Court.
“The corollary of the Supreme Court’s acceptance of far-reaching federal regulation under the commerce and taxing powers was its abandonment of substantive due process, liberty of contract, and the other elements of laissez-faire constitutionalism,” wrote Belz, Kelly, and Harbison. As a result, the Court started to permit both the federal and state governments to have a greater role in “directing American economic life.”
The Court’s change in 1937 is often referred to as the “constitutional revolution of 1937.” “The New Deal Court thus vindicated both expansive federal powers and limited protection of individual rights and liberty and property against both federal and state regulation,” wrote Epstein.
Justice Butler and his conservative colleagues “were conservatives in all senses of that word,” wrote William James Hull Hoffer. “They were skeptical of broad readings of the Constitution in order to address the supposed national emergency,” argues Hoffer. This was made clear in Justice Sutherland’s dissent in West Coast Hotel.
Butler and his colleagues were defending what they considered to be the original intent of the Constitution, which not only limited government, but protected economic liberty. “They wanted to preserve the balance between the national government and the states under federalism, and the balance between the government and business under contract theory, and the limitations on government under laissez-faire sentiment,” wrote Hoffer.
Richard Epstein noted that “the classical liberal conception of the Constitution had a long historical run of about 150 years, but in the end it was vanquished by the progressive counterrevolution that culminated in critical Supreme Court decisions on issues of both federalism and individual rights, during the tumultuous 1930s.”
The “Four Horsemen” are often viewed as being carbon copies of one another, but this also is a myth. They may have agreed on the same broad level conservative view of the Constitution, but they also had their differences. “Although the Four Horsemen often voted together during the 1920s and 1930s, they were not necessarily the ideological monolith described in pejorative terms. Of the four, Pierce Butler was by far the most conservative on socioeconomic matters and patriotic issues,” argues Olken.
“Although the press and the New Dealers dubbed them ‘the Four Horsemen,’ Justices Butler, McReynolds, Sutherland, and van DeVanter did not forecast or represent the forces of the apocalypse. They were straightforward laissez-faire conservatives who differed among themselves on whether New Deal measures were constitutional,” argues Hoffer.
Barry Cushman, who wrote “The Secret Lives of the Four Horsemen,” presents an interesting argument that Justice Butler and his conservative Brethren may actually be more progressive when their entire careers are examined. Of the “Four Horsemen” only Justice Sutherland emerged with a somewhat favorable reputation, but not necessarily for his judicial philosophy, but rather for his intellect.
White has made a similar argument. “Van Devanter, McReynolds, Sutherland, and Butler took separate positions toward constitutional issues as frequently as they voted as a block, and on the majority of instances in which they voted as a block they were joined by at least one, and often all, of the other justices who served with them,” wrote White.
In addition, White, argues that “a comprehensive treatment of the constitutional decisions of each of the “Four Horsemen” could produce a fair amount of supportive evidence for labeling them ‘progressives’ or ‘liberals.’ Their collective characterization as ‘conservatives,’ ‘reactionaries,’ and a ‘reactionary bloc’ in conventional accounts has rested on a handful of visible cases in the 1930s.”
It is important to note that the “Four Horsemen” “voted to sustain several New Deal statutes regulating economic activity, and “they consistently upheld the powers of administrative agencies against constitutional challenges.” White also argues that they “demonstrated considerable solicitude for civil rights and civil liberties, of both the incorporated and the pre-incorporated variety.”
When it came to constitutional questions concerning civil liberties, Justice Butler “took stereotypically libertarian (or even liberal) positions in cases involving the Fourth Amendment and the rights of criminal defendants.” Judge Stras wrote in regard to First Amendment cases “Butler often took a characteristically conservative approach, deferring to state governments as the most appropriate bodies to tend to the welfare and needs of citizens and permitting extensive regulation of speech.”
White argues that while Justices Brandeis, Holmes, and to a certain extent Cardozo are held up as successful jurists; the “Four Horsemen” did not really get a chance. “The dearth of coverage on Van Devanter, McReynolds, Sutherland, and Butler between 1910 and the early 1930s paralleled that of Brandeis in those years. Not a single law journal devoted space to a treatment to their individual jurisprudence,” wrote White.
Further, White, argues that the conservatives were subject to the various attacks in the media as well as by President Roosevelt. “The first source of labels and stereotypes for the four justices was the popular press, and the labels attached to them were not subject to any evaluation, on the basis of wider sampling or closer reading of their opinions, by specialists,” argues White.
As an example, Drew Pearson published The Nine Old Men, which was published in response to the Court’s invalidating numerous New Deal measures in 1934-1935. “Pearson filled his text with unattributed stories about the justices and their careers, each consistent with stereotyped profiles,” wrote White. Each conservative justice was caricatured. Pearson labeled Butler “the chief brain and mainspring of the court reactionaries.” In addition, Pearson described Butler as setting “himself with the task of keeping the conservative wing of the Court intact, keeping it always one vote ahead of the distrusted and unqualified liberals.”
Even today, the evaluation of Justice Butler and his colleagues depend largely on the philosophical approach of scholars. Conservative and libertarians tend to view them with greater charity, although some will consider their constitutional philosophy a form of judicial activism.
Butler is often conjoined with McReynolds in being rated as a failure. Both are considered to have a reactionary reading of the Constitution. Butler’s “reactionary reading of the Constitution was second only to that of McReynolds,” argued Abraham.
“Rated a distinct ‘failure’ by the experts, the aggressive, domineering, and stubborn Butler hardly merits a kinder treatment than that historical evaluation has accorded him,” wrote Abraham.
“The fears of the Progressives proved as justified as did the hopes of Butler’s backers: his record during 17 years on the Court until his death in November 1939—established in 370 opinions (323 majority, 140 dissents, and 3 concurrences)…,” wrote Abraham. Abraham also argues that Butler “was wholly and unswervingly in the Darwin—Spencer mold,” which demonstrates the unfortunate common evaluation of Justice Butler. Abraham’s argument is systematic of how Butler and the “Four Horsemen” are treated and it is an example of the academic bias toward them.
The reason why Justice Butler is relegated to the category as a “failed” justice is the mere fact that he and his conservative colleagues stood in the way of progress. When Justice Butler died the New York Times noted that the Depression “had brought the necessity for change [in the law].” In their criticism the Times stated that Bulter and the other conservatives not only “conscientiously resisted change,” but also “lacked insight into social values,” which required “adaptation to changing social needs.” This was in direct reference to Justices Brandeis and Cardozo and their philosophy of the “living Constitution.”
The Times went on to state that Butler “was not a great judge” and that “great generalities of the constitution were not redefined” by him or the other conservatives. Finally, whether the Times meant it as a compliment or not, they wrote that “it takes a brave man to keep on year after year reiterating unpopular convictions.”
Justice Butler would have viewed that as a compliment. “The roots of his convictions went deep. They were founded on principles,” reflected Mitchell. In his remembrance of Justice Butler, Mitchell stated:
My thought is that in Pierce Butler it took form as a deep conviction that a government governs best which governs least; that increasing centralization of power in government and increasing interference by government in the ordinary affairs of men, beyond that necessary to prevent abuses, lead to diminution and ultimate loss of liberty; that a system which allowed him, a simple farmer’s boy, to rise to the heights, was worth clinging to.
Wilfred E. Rumble agreed stating that “during his career at the bar he had seen his country under its Constitution, as declared and expounded by men whom he idealized, come successfully through two wars and depressions; and he had himself, under it, attained great honors; he believed in that Constitution, so expounded, with all his heart and soul, and he fought courageously and ably against what he thought were contrary and unsound views with respect to it.”
Senator Robert A. Taft stated that within the seventeen years of Justice Butler’s service on the Supreme Court, the “Court has had to consider every phase of the American constitutional system; seventeen years which have seen a great change in the whole character of the Government of the United States.”
Taft also noted that Butler was “devoted to the Constitution” and during his time on the Court he was a fierce defender of constitutional limited government. Justice Butler did not abandon principle under political pressure or because of the political or economic situation of the day. In 1941, Time magazine described him as a “solid rock of conservatism.”
Chief Justice Kimbrough Stone of the Eighth Circuit Court of Appeals in an address at a memorial service for Justice Butler stated:
He stood immovable against the flow of what he saw as dangers to those liberties of the individual under our fundamental law. Of all the men I have known, none more perfectly typified strength. Massive and rugged in face and form, great in mind and pure in heart, lover of truth and basic things, he was strength in its best human personification.
Justice Holmes was correct; Justice Pierce Butler was a monolithic defender of the Constitution.
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