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5 consequential Supreme Court decisions written by George Sutherland

Written by Derek Monson

October 28, 2022

During his time as an associate justice on the U.S. Supreme Court, George Sutherland was a prolific producer of judicial opinions, especially majority opinions. Of the 320 opinions that he authored during his roughly 15 years on the Supreme Court (October 1922 – January 1938), 295 were for the majority, with 24 dissents and one opinion concurring with the majority. That comes out to an average of almost 20 majority opinions for every year he was on the Supreme Court.

For comparison, no recent Supreme Court justice has approached that number of majority opinions per year. The closest may be Antonin Scalia, who averaged about 11 majority opinions per year during a 15-year period (1987-2001). Some justices have average more total opinions per year during their time on the Supreme Court, but few were relied upon to voice the reasoning of the majority as much as Sutherland.

A 1937 magazine profile of Sutherland suggested a reason why: “He is supremely useful in writing opinions about which his concurring colleagues may have some misgivings. He has the ability to make decisions which may have been tortuously arrived at seem final and unequivocal as any of the Ten Commandments.” Some of Sutherland’s most notable opinions concerned women’s rights, racial equality, presidential authority, local zoning laws, and freedom of the press.

Women’s Rights: Adkins v. Children’s Hospital

In a journal article published just this year, legal scholar David Bernstein called this 1923 majority opinion authored by Sutherland “the rhetorically strongest defenses of women’s right to legal equality of any Supreme Court Justice until the 1960s.” National women’s suffrage leader Alice Paul referred to Sutherland’s opinion in this case as women’s “Magna Carta.”

A key passage from the decision illustrates the merit of these accolades:

In view of the great, not to say, revolutionary changes which have taken place since that utterance in the contractual, political and civil status of women culminating in the Nineteenth Amendment it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. … [W]e cannot accept the doctrine that women of mature age … require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances.

In other words, women and men are equal before the law and must be treated as such for the law to be constitutional. Through this ruling, Sutherland was building into law the foundations of the women’s rights movement – five decades before it would achieve some its greatest legal successes.

Sutherland’s opinion in Adkins was overruled 14 years later. But as former Utah Supreme Court Chief Justice Christine Durham noted in a speech about Sutherland, “Alice Paul and Justice Sutherland have had the last laugh. Their views have prevailed and the idea that laws must treat men and women equally is now firmly embedded in American constitutional jurisprudence.”

Racial equality: Powell v. Alabama

Sutherland was on the court during the Jim Crow era of legalized racial segregation and oppression of Black Americans. Nevertheless, Sutherland’s principled character applied itself on at least one important occasion to applying the Constitution’s protections to a group of nine young Black men known to history as the Scottsboro Boys.

These men were arrested in 1931 on a minor charge in connection with a fight that broke out on a freight train in Jackson County, Ala. Two white women later accused these men of raping them (one would later recant her accusation and testify on behalf of the Scottsboro Boys). The men were not provided legal counsel and representation until the day of their trial, and an all-white jury hastily convicted them and sentenced eight of them to death. Their case was appealed and eventually reached the Supreme Court, where Sutherland wrote the decision for their case, which was released in 1932.

Sutherland wrote in the majority opinion that, without regard to race,

[a] defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice, but to go forward with the haste of the mob. …

Let us suppose … a prisoner charged with a capital offense … unable to employ counsel, with the whole power of the state arrayed against him, [is] prosecuted by counsel for the state without assignment of counsel for his defense, tried, convicted and sentenced to death. Such a result, which, if carried into execution, would be little short of judicial murder, it cannot be doubted would be a gross violation of the guarantee of due process of law [under the 14th Amendment to the U.S. Constitution].

By overturning the verdicts of the Alabama courts, Sutherland’s opinion set “an important legal precedent for enforcing the right of Black Americans to adequate counsel.” Like his ruling in Adkins, Sutherland’s ruling in Powell argued for equality before the law for all American citizens – men and women, without regard to race.

Presidential authority: U.S. v. Curtiss-Wright Export Corp.

This court decision authored by Sutherland was a landmark case on presidential authority. The majority opinion determined that the authority of the president of the United States was distinctly different in foreign versus domestic affairs. In the former, the powers of the president were much less restricted by Congress’ checks and balances, which do clearly restrict the actions and authority of the president when it comes to domestic policy issues.

As Sutherland wrote in his opinion:

Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

By contrast, Sutherland authored a different majority opinion just a year earlier, saying that the president’s power was greatly restricted when it came to a domestic administrative commission with legislative and judicial authorities. As one scholar noted concerning these rulings, Sutherland “effectively enshrined the ‘two presidencies’ thesis into constitutional law” – the two presidencies thesis being that presidents have much greater authority and influence in foreign affairs than domestic issues.

Zoning laws: Euclid v. Ambler

The case of Euclid v. Ambler in 1926 was a landmark case, the impacts of which are still felt today – nearly 100 years later. It was the first federal lawsuit against a local zoning ordinance arguing that such local laws were unconstitutional. Prior to Euclid, private property owners had the legal upper hand in cases where a government sought to regulate the use or disposal of private land, due to the Fifth Amendment.

Constitutionally speaking, Euclid decided that private property regulation via local zoning laws was a proper exercise of the constitutional police power of the government. In effect, Euclid gave local government the upper hand in regulating private property for the first time, as long as the zoning law was reasonably connected to public health or safety – a reality that continues to this day.

Laying out his view of the justification for reasonable regulation of private property due to changing realities of urban life in America, Sutherland wrote:

Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall.

In Sutherland’s view, the ruling in Euclid was of limited scope. As he wrote:

It is enough for us to determine, as we do, that the ordinance, in its general scope and dominant features, so far as its provisions are here involved, is a valid exercise of authority, leaving other provisions to be dealt with as cases arise directly involving them.

And this is in accordance with the traditional policy of this Court. In the realm of constitutional law especially, this Court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded application and extension of constitutional principles to particular cases as they arise, rather than by out of hand attempts to establish general rules to which future cases must be fitted. This process applies with peculiar force to the solution of questions arising under the due process clause of the Constitution as applied to the exercise of the flexible powers of police, with which we are here concerned.

However, the long-term impact of Euclid would prove to be much broader and more general than Sutherland seemed to intend here. Over time, it has become the legal foundation for the zoning laws that govern the homes we live in, the local businesses we frequent, and the physical locations of the jobs we hold.

Freedom of the press: Grosjean v. American Press Co.

The Grosjean case considered the constitutionality of state tax on newspapers. The law taxed advertising in newspapers above a certain level of circulation. Sutherland wrote the opinion for the majority deciding that the tax was an unconstitutional violation of the 14th Amendment’s protection against a “state depriv[ing] any person of life, liberty, or property, without due process of law.” The court determined that a newspaper, as a business, was considered “a person” for purposes of the 14th Amendment’s due process clause.

After examining the history of English regulation of the press in colonial times, which informed the framers’ intent when drafting the First Amendment’s protection of the freedom of the press, Sutherland wrote:

In the light of all that has now been said, it is evident that the restricted rules of the English law in respect of the freedom of the press in force when the Constitution was adopted were never accepted by the American colonists, and that, by the First Amendment, it was meant to preclude the national government, and, by the Fourteenth Amendment, to preclude the states, from adopting any form of previous restraint upon printed publications, or their circulation.

Later in his opinion, Sutherland eloquently described the essential value – as important today as it was in Sutherland’s time – of the institution of a free press in a democratic republic like the United States:

The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity, and, since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. … A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.

In other words, through his majority opinion in Grosjean, Sutherland contributed to the protection of freedom of the press that we continue to benefit from a century later.

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