He graduated from BYU. Then he battled FDR’s New Deal on the bench — 100 years later, his legacy still matters

Written by Derek Monson

November 11, 2022

Originally published by Deseret News.

George Sutherland was in the mood for comedy. Penning a commencement address for Brigham Young University, Sutherland’s alma mater, he praised those who helped found and grow the institution from its humble origins as an academy.

The only Supreme Court Justice from Utah, and one of the four conservative “horsemen” who stood against FDR’s New Deal program, Sutherland had graduated from one of the academy’s first classes. And so, writing to the class of 1941, he remarked modestly: “I cannot claim to be a pioneer, perhaps I may call myself a ‘pio-nearly’.”

His core message was more serious, reflecting on his career entangled in some of the most controversial issues of his time:

“Good character does not consist in the mere ability to store away in the memory a collection of moral aphorisms that runs loosely off the tongue. … Character to be good must be stable — must have taken root. It is an acquisition of thought and conduct which have become habitual — an acquisition of real substance, so firmly fixed in the conscience, and indeed in the body itself, as to insure unhesitating rejection of an impulse to do wrong.”

Such character is built upon pragmatic life principles.

Sutherland believed that for “a principle to be any value … (it) must be not only sound and just, but capable of practical application to the affairs of life.”

He exemplified this belief in how he sought to establish constitutional principles in controversial issues of his day. Increasingly, our politics seem to punish people of character and kindness, but history tells a different story. A hundred years after Sutherland’s first term on the bench, his life’s legacy illustrates how character and kindness among Americans and their leaders lead in the long run to greater achievements that improve our civic well-being.

When Sutherland was 14 months old, his family migrated from Britain to the United States. Charles Dickens wrote about the emigrant ship that transported the family. Describing “the perfect order and propriety” of these impoverished sojourners, Dickens remarked it was impossible to deny “some remarkable influence had produced a remarkable result.”

The family crossed half the country by train, before trudging the seemingly endless plains to the Great Salt Lake in a new wagon ordered for Brigham Young. They arrived in the fall of 1863 and settled in Springville, Utah.

Sutherland had a pioneer-era education, which meant only three years of formal education after the age of 12, mostly at Brigham Young Academy. His family needed money and so he worked throughout his teenage years. After studying under Karl G. Maeser and graduating from Brigham Young Academy in 1881, he would go on to enroll at the University of Michigan Law School but left before earning a law degree.

And yet, as the Deseret News wrote at the time of Sutherland’s death, he became known as “one of the ablest men ever to come out of the West” and “the living voice of the Constitution” for his public service, lecturing at Ivy League universities, serving in the U.S. Senate and on the U.S. Supreme Court and advising two presidents of the United States.

As a private attorney, his legal defense in the 1886 appeal of the conviction and imprisonment of Nicholas Groesbeck for unlawful cohabitation eventually led to scores of similarly-convicted Latter-day Saints being released from prison. As a U.S. senator from Utah, he advocated for the rights of women before most women could vote. As a Supreme Court justice during the Jim Crow era he helped establish the constitutional rights of Black Americans.

He lived during a time of bitter and growing political division between members of The Church of Jesus Christ of Latter-day Saints and those not affiliated with the church. And yet, while he was not a Latter-day Saint himself, Sutherland, in the words of historians Edward Carter and James Cleith Phillips, “rose to become one of the community’s most popular and even beloved political figures.”

One may wonder how an immigrant living outside the cultural majority of his community overcame the barriers of little formal education and political division to serve and benefit society. In a eulogy at Sutherland’s funeral, Chief Justice Harlan Fisk Stone, one of his most consistent opponents in the Supreme Court, stated “he was a man of stalwart independence and of the purist character, who without a trace of intellectual arrogance and always with respectful toleration for the views of colleagues who differed with him, fought stoutly for the constitutional guarantees of the liberty of the individual.”

Sutherland is often remembered for his resistance to what he perceived as the unconstitutional overreach of FDR’s New Deal legislation. He and three other justices (James Clark McReynolds, Pierce Butler, and Willis Van Devanter) were labeled the “Four Horsemen” by detractors — an allusion to Death, Famine, Pestilence, and War in the Book of Revelations.

According to the Supreme Court Collection, Sutherland agreed that the goals of the New Deal were worthy of pursuit, but struck down various legislative and executive efforts to regulate commerce beyond their constitutional scope. He believed that regulations “must be appropriate, plainly adapted to the end, and not prohibited by, but consistent with, the letter and spirit of the Constitution.”

Sutherland and his wife Rosamond were both vocal supporters of women’s rights and friends of national women’s suffrage leaders, including Alice Paul, the leader of what became the National Women’s Party. As one of Utah’s U.S. senators from 1901-1917, Sutherland introduced the legislation that, according to former Utah Supreme Court Chief Justice Christine Durham, was “ultimately responsible for the Nineteenth Amendment to the United States Constitution,” which ensured women’s right to vote across the nation.

The articulate and forceful logic that Sen. Sutherland used to persuade his colleagues to the side of “universal womanhood suffrage” is captured by words from a 1916 speech to his colleagues: “any argument which I may use to justify my own right to vote justifies, it seems to me, the right of my wife, sister, mother and daughter to exercise the same right.”

He incorporated this principle of the basic legal equality of women and men as a Supreme Court justice in an opinion that one suffrage leader called women’s “Magna Carta.” While Sutherland’s majority opinion was overturned, according to Durham, Sutherland eventually got “the last laugh. (His) views have prevailed and the idea that laws must treat men and women equally is now firmly embedded in American constitutional jurisprudence.”

Sutherland followed a similar principle of legal equality in the case of Black Americans in his 1932 majority opinion regarding the death penalty conviction of the Scottsboro Boys for allegedly raping two white women. These Black men were not given access to legal counsel and representation until the day of their trial and were quickly convicted by an all-white jury and sentenced to death.

Sutherland saw the inherent injustice in how these Black men were represented in court. Writing for the majority, he ruled that the convictions and death sentences handed down to these men violated the 14th Amendment. Two decades before Brown v. Board of Education determined “separate but equal” was inherently unjust and discriminatory, Sutherland had effectively decided that the Constitution required Americans of all races had to be treated equally in criminal prosecutions in order for their convictions and sentences to be valid.

Sutherland, driven by his stalwart beliefs to consistently apply constitutional principles despite criticism and disapproval from colleagues and the public, helped lay the foundation for unifying solutions to contentious political issues.

Sutherland’s family had traveled to Salt Lake City as Latter-day Saints and were active in various Utah church wards. Between 1870 and 1880, family ties to the church were severed, with the parents noted as “apostates” and children as “gentiles” (never baptized into the church) in an 1880 census. But many of Sutherland’s most influential friendships would be with those whose religious practices (e.g., polygamy) and beliefs he didn’t share.

According to historians Carter and Phillips, Sutherland maintained a “long and colorful correspondence” with Heber J. Grant while he was president of The Church of Jesus Christ of Latter-day Saints, noted for its “personal nature and frankness,” including things like Grant’s personal finances. And it was from a close friendship with his Brigham Young Academy teacher and mentor Karl Maeser, that Sutherland likely gained many of his views on the importance of character.

Sutherland would later write of Maeser that he “believed that scholastic attainments were better than riches, but that better than either were faith, love, charity, clean living, clean thinking, loyalty, tolerance and all the other attributes that combine to constitute that most precious of all possessions, good character.”

A test of Sutherland’s friendship with Maeser would come in 1888 when, seven years after Sutherland’s graduation from BYA, Maeser was prosecuted for practicing polygamy. According to Carter and Phillips, Sutherland spoke to the judge on Maeser’s behalf, despite his personal objections to polygamy:

“Judge, I know you have to give him some kind of punishment, but I am pleading with you, don’t send him to jail. If you do he will die of humiliation. He is a good man and he has done what he believes to be right, but the law says he has violated (it) and you will have to punish him. Give him as much of a fine as you want to, but don’t send him to the penitentiary, I am pleading with you.”

The next day, the judge ordered Maeser to pay the maximum fine of $300 (more than $9,000 in today’s dollars) with no jail time. Sutherland met the judge after the trial and paid Maeser’s fine.

Sutherland rose above tribalism and managed to gain respect and admiration from both sides of the political divide.

Our modern politics often seems to discourage such character and kindness. Too often modern politicians exhibit neither kindness nor character in their speeches and official duties.

George Sutherland’s political success — despite little by way of modern formal education and significant political divisions — points to a better way for us as voters and our elected leaders. Sutherland’s life shows that many barriers are not insurmountable. But overcoming them requires character and kindness among civic and political leaders and the voters that they represent.

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