Hugo Black: A Biography, by Roger K. Newman, Pantheon Books, 1994

The Return of George Sutherland, by Hadley Arkes, Princeton University Press, 1994

By The Hon. Richard Sanders

Justice, Washington Supreme Court

(Washington State Bar News, February 1997)

Saddle up, George "four horsemen" Sutherland has returned. Not even the grave can keep a good man down and Sutherland’s ideas are not about to be laid to rest as another casualty of the New Deal, at least if Professor Hadley Arkes has anything to say about it.

And here we thought Sutherland and his three apocalyptic brethren, Van Devanter, McReynolds, and Butler were neatly shot out of the saddle at FDR’s high noon to make way for their enlightened replacements, Hugo Black, William O. Douglas and company. But it ain’t over yet, and Roger Newman’s Hugo Black attests that his ideas have a life of their own as well. These sequels do justice.

The biographies read together tell the story of the United States Supreme Court between Sutherland’s appointment in 1922 and Black’s retirement in 1971 through the lives of Justices who at once had so much in common yet are usually depicted so far apart.

Of the two, Hugo Black is by far the best remembered and most highly respected. His decisions are studied in law school. He is quoted that the Bill of Rights "means what it says" when civil liberties are at issue.

But what about Sutherland: who was this man, from whence did he come, what did he think? Wasn’t George Sutherland the justice who wouldn’t let go of the past while force feeding victims of capitalist depression (and oppression) more of the same poison? That is the Sutherland we love to hate, but not the Sutherland who rides again.

For a short time Black and Sutherland were on the court together. Black respected and admired Sutherland, but these volumes disclose no more about their personal relationship. Yet the parallels between the two are inescapable.

At age 7, George Sutherland moved to Tintick, Utah, in 1869. Seventeen years later, Hugo Lafayette Black was born in back-country Clay County, Alabama. By the time Hugo was born, George had graduated from law school and was immersed in the jurisprudence of a time no doubt closer in thought of the American Revolution than can be adequately appreciated over a century later.

The biography of Sutherland, more a defense of his ideas than an explanation of his life, begins with an actual copy from his commonplace book which 20-year-old George Sutherland wrote in 1882:

Natural liberty is the right which nature gives to all mankind of disposing of their persons and property, after the manner they judge most convenient to their happiness, on condition of their acting within the limits of the law of nature, and that they do not (in) anyway abuse it to the prejudice of other men. To this right of liberty there is a reciprocal obligation corresponding, by which the law of nature binds all mankind to respect the liberty of other men and not to distrust them in the use they make of it as long as they do not abuse it.

While perhaps not a very helpful formula for deciding cases, the comment is at least a statement of concern about the ultimate purpose of the system. Such light no doubt guided Sutherland through his career in the United States Senate as Utah’s first senator, yet did not fully manifest itself until his two decades on the Supreme Court (1922-1937). Again and again, in the name of law and the spirit of liberty, Sutherland applied these principles.

Both Sutherland and Black made their mark in private practice. Black’s contact with the appellate practice before his appointment seemed to be centered upon the defense of "excessive" jury verdicts rendered on behalf of his personal injury clients.

Black was active in community affairs and more enthusiastic in his Ku Klux Klan membership than given credit. "The Hooded Order," as Newman calls it, makes an interesting chapter in Black’s life. Black read from the Klan official prayer in argument and he marched in their parades. He spoke at their Konklave. And he initiated new members into the invisible empire as Kladd of the Klkavern. The Klan letterhead listed Hugo as an officer and Klan support was instrumental in his initial election to the United States Senate. Later a newspaper ran the unlikely headline: "Klan Elects Black to Senate." But Black’s prior involvement with the Klan apparently played no role in his life or his thinking after ascending to the nation’s highest court.

Senator Black was an effective and industrious ally of many New Deal programs smothered on juridical grounds by Sutherland and his brethren. While Sutherland was criticized for economic advocacy in judicial robes, Black was garnering favors from President Roosevelt by practicing similar advocacy on the floor of the Senate. While Arkes questions the validity of such criticism when directed at Sutherland, there can be no doubt that the origin of Roosevelt’s assault on the United States Supreme Court through his court packing plan was wholly economic in genesis.

These episodes are insignificant, however, compared to the dominating intellectual presence of Sutherland and Black on center court. That is the meat of these volumes. Reason is the reason these men have outlived their mortality.

One must feel a genuine sense of deprivation having survived the law school ordeal without even imagining the moral significance attached to the Commerce Clause by Sutherland, much less meeting Willie Lyons, one of the first would-be "beneficiaries" of the District of Columbia’s minimum wage law. In Adkins v. Lyons, 261 U.S. 525 (1923) Sutherland dealt a crippling blow the "advanced" thinking of his time which would cure, through legal edict, the alleged economic inequity. Under the challenged statute, women workers were "protected" by a statute requiring that they be paid approximately four times as much as their male counterparts. Willie Lyons, however, was not appreciative. She simply had been legislated out of her job. Sutherland went to her defense in his celebrated opinion which a future attorney general characterized as a reflection of Sutherland’s opposition to the use of federal power for "the regulation of industrial evils."

It’s a bum rap, claims Arkes, that Sutherland imposed his economic views through his juridical opinions. Rather the truth is precisely the opposite: legal principles sometimes have economic consequences. For Sutherland, circumscribing the boundaries of federal power in the economic arena was as much an exercise in civil liberties as defining the right of privacy in Roe v. Wade. But the line of demarcation was not always clear to his critics.

Black was dubious about substantive due process and arguments based upon natural rights. For him the state police power was without meaningful limitation except where it transgressed upon clearly defined civil liberties litanized in the Bill of Rights, and the right to privacy wasn’t listed. In Griswold v. Connecticut, 388 U.S. 1 (1965), Black saw no constitutional prohibition to state regulation of the distribution of contraceptive devices and probably would have sustained the state’s interest to regulate abortion as well. The vessel which delivered the Bill of Rights also limited them.

For all of Black’s sometimes worshipful adherence to constitutional text it was Sutherland who applied the Fourteenth Amendment Due Process clause expansively to the states; Black’s incorporation delivered the Bill of Rights in a neat but tightly bound package.

While Black was representing Alabama in the Senate, Sutherland was reversing the Alabama conviction of the young black "Scottsboro boys" for lack of effective counsel on Fourteenth Amendment Due Process grounds (Powell v. Alabama, 287 U.S. 45 (1933) long before Gideon v. Wainwright, 372 U.S. 335 (1963) achieved a similar result through incorporation.

Yet Black’s textual approach had a powerful simplicity. "Congress shall pass no law" means "no law." But does "Congress" mean "states" as well? Simply, yes; however, as Sutherland recognized, "Due Process" in the Fourteenth Amendment was a text of inviting ambiguity. One is tempted to say the battle has been won by Black. But Roe v. Wade is more purely justified as an extension of Sutherland’s thought (although one doubts he would have concurred in its application).

When all is said and done, one is left with the uneasy feeling that all has not been said about what these men have done. Better neither laid to rest.