George Sutherland served as associate justice of the U.S. Supreme Court from 1922 to 1938. A conservative jurist, Sutherland opposed the efforts of Congress and state legislatures to regulate business and working conditions. During the 1930s he was part of a conservative bloc that ruled unconstitutional major parts of President FRANKLIN D. ROOSEVELT's NEW DEAL program.
Sutherland was born on March 25, 1862, in Buckinghamshire, England. When Sutherland was a young child, his parents emigrated to the United States, settling in Provo, Utah. Sutherland graduated from Brigham Young University in 1881 and attended the University of Michigan Law School in 1882 and 1883. He was admitted to the Michigan bar in 1883 but returned that same year to Utah, where he established a law practice in Salt Lake City.
Sutherland took an interest in politics and served in the territorial legislature. In 1896, after Utah had become a state, Sutherland was elected to the first Utah Senate as a REPUBLICAN PARTY member. In 1901 he was elected to the U.S. House of Representatives, and in 1905 he became a U.S. senator from Utah.
Despite Sutherland's reputation as a political conservative in Congress, he did support President Theodore Roosevelt's reform programs. He also supported WORKERS' COMPENSATION legislation for railroad workers and the NINETEENTH AMENDMENT to the U.S. Constitution, which
provided for women's suffrage. Nevertheless, he believed that individual rights were paramount and that government should not intrude on most economic activities.
After being defeated in the 1916 Senate election, Sutherland became involved in national Republican politics and served as an adviser to President WARREN G. HARDING, who was elected in 1920. Sutherland's name had been mentioned for several years as a possible Supreme Court appointee, and in September 1922 Harding nominated Sutherland to the Court.
Sutherland joined a Supreme Court dominated by conservatives. Like the conservative majority, Sutherland believed in the doctrine of SUBSTANTIVE DUE PROCESS, which held that the DUE PROCESS Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution could be invoked to impose limits on the substance of government regulations and other activities by which government affects "life, liberty, and property." Since the 1880s the Supreme Court had invoked substantive due process to strike down a variety of state and federal laws that regulated working conditions, wages, and business activities.
Sutherland also adhered to the concept of liberty of contract, which held that the government should not interfere with the right of individuals to contract with their employers concerning wages, hours, and working conditions. Sutherland wrote the majority opinion in Adkins v. Children's Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785 (1923), in which the Court struck down a federal MINIMUM WAGE law for women workers in the District of Columbia. Sutherland concluded that employer and employee had the constitutional right to negotiate whatever terms they pleased concerning wages. Sutherland rejected the idea that Congress had the authority to correct social and economic disparities that hurt society in general.
With the STOCK MARKET crash of 1929 and the Great Depression of the 1930s, the conservative majority on the Court came under intense public and political scrutiny. Franklin D. Roosevelt's election in 1932 signaled a change in philosophy concerning the role of the federal government. Roosevelt's New Deal was premised on national economic planning and the creation of administrative agencies to regulate business and labor. This was anathema to Sutherland and his conservative brethren.
From 1933 to 1937 the Court struck down numerous New Deal measures. Sutherland, along with Justices JAMES C. MCREYNOLDS, WILLIS VAN DEVANTER, and PIERCE BUTLER, formed the core of opposition to federal efforts to revitalize the economy and create a social safety net. The socalled Four Horsemen helped strike down as unconstitutional the NATIONAL INDUSTRIAL RECOVERY ACT OF 1933 in Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935), and the Agricultural Adjustment Act of 1933 in United States v. Butler, 297 U.S. 1, 56 S. Ct. 312, 80 L. Ed. 477 (1936).
Roosevelt responded by proposing a court-packing plan that would have added an additional justice to the Court for each member over the age of seventy. This plan targeted the Four Horsemen and, if implemented, would have canceled out their votes. Although Roosevelt's plan was rejected by Congress, the national debate over the role of the federal government and the recalcitrance of the Supreme Court led more moderate members of the Court to change their positions and vote in favor of New Deal proposals. With the tide turning, Sutherland retired in 1938.
Despite his conservative views on government and business, Sutherland defended liberty rights as well as property rights. In POWELL V. ALABAMA, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), Sutherland overturned the convictions of the "Scottsboro boys," a group of young African Americans sentenced to death for an alleged sexual assault on two white women. Sutherland ruled that the SIXTH AMENDMENT guarantees adequate legal counsel in state criminal proceedings.
Sutherland died on July 18, 1942, in Stock-bridge, Massachusetts.
Olken, Samuel R. 2002. "The Business of Expression: Economic Liberty, Political Factions and the Forgotten First Amendment Legacy of Justice George Sutherland." William and Mary Bill of Rights Journal 10 (February).
——. 1997. "Justice George Sutherland and Economic Liberty: Constitutional Conservatism and the Problem of Factions." William and Mary Bill of Rights Journal 6 (winter).