Tuesday, December 09, 2003

More Judges to Behold

Greatest Heroes Who Fought FDR’s New Deal

by Jim Powell, LewRockwell.com.

During the early 1930s, there were powerful political pressures to suppress economic liberty, as the New Deal promoted price fixing and cartels that benefited producer interests at the expense of consumers. But for three years, the U.S. Supreme Court defended economic liberty and struck down one New Deal law after another.

New Deal historians long blamed these adverse Supreme Court decisions on the "Four Horsemen of Reaction," meaning justices Willis Van Devanter, James C. McReynolds, Pierce Butler and George Sutherland. These were sometimes joined by others, particularly Chief Justice Charles Evans Hughes and justice Owen Roberts. So in addition to 5-4 decisions, there was a key unanimous decision (striking down the National Industrial Recovery Act) – even the "progressive" justices Louis D. Brandeis, Benjamin Cardozo and Harlan Fiske Stone were on board for that one. There was an 8-1 decision (striking down New Deal restrictions in the oil business). Brandeis wrote the majority opinion striking down the Frazier-Lemke Act that authorized farmers to walk away from their obligations to creditors.

Willis Van Devanter brought an appreciation of business risks to the Supreme Court. He was born in 1859 in Marion Indiana. He graduated from Indiana Asbury (now DePauw) University, then Cincinnati Law School in 1879 and joined his father’s law firm. When his father retired, Van Devanter headed for Wyoming. He hunted grizzly bears in the Bighorn Mountains with Buffalo Bill. He handled a lot of legal business for the two principal interests in Wyoming, cattlemen and railroads.

In 1888, he was elected to the territorial legislature and played a major role codifying territorial laws that subsequently became the basis of the state’s laws. President William McKinley appointed Van Devanter Assistant Attorney General in the Department of the Interior. President Theodore Roosevelt nominated Van Devanter to the U.S. Court of Appeals for the Eighth Circuit. He was nominated for the Supreme Court by President William Howard Taft in December 1910. He served 26 years, writing 346 majority opinions.

James Clark McReynolds was a brilliant man and a prickly pear. He was born in 1862 in Elkton, Kentucky. His father was a physician and planter who didn’t approve of compulsory government schools. Young McReynolds graduated from Vanderbilt University and earned a law degree at the University of Virginia. He became a corporate lawyer in Nashville. He ran unsuccessfully for Congress, then taught commercial law at Vanderbilt and in 1903 was appointed Assistant Attorney General in Republican Theodore Roosevelt’s administration. There he helped enforce antitrust laws.

He remained a Democrat, though, and supported Woodrow Wilson’s campaign for the White House in 1912. Wilson named McReynolds Attorney General the following year. Despite his volatile temper and abrasive manner that made enemies, Wilson in 1914 nominated him to the Supreme Court. A brash bachelor, McReynolds didn’t like the two Jewish justices, Brandeis and Benjamin Cardozo. He wouldn’t speak to justice John Clark whom he considered unfit for the job. After justice Stone described one lawyer’s brief as dull, McReynolds told him, "The only duller thing I can think of is to hear you read one of your opinions." McReynolds reportedly didn’t like female attorneys or tobacco smokers, either.

McReynolds’ opinions focused on protecting private property, freedom of contract and freedom of speech. In Meyer v. the State of Nebraska, 262 U.S. 390 (1923), he struck down a law which made it illegal to teach a foreign language prior to the ninth grade. In Farrington v. T. Tokushige, 273 U.S. 284 (1927), McReynolds overturned a law that banned the teaching of the Japanese language. He was horrified at the policies of FDR whom he called an "utter incompetent."

Having come up the hard way, Pierce Butler cherished individualism and enterprise. He was born in 1866 in Pine Bend, Minnesota. His parents had emigrated from Ireland after the potato famine of the 1840s. His father operated a tavern, then tried to develop a farm on the frontier. Pierce graduated from Carlton College and studied law at a local law firm. As general counsel for the Chicago, St. Paul, Minneapolis and Omaha Railroad, he became known as one of the best railroad lawyers.

Butler was asked to help the federal government prosecute antitrust cases during the Taft administration. He took on meat-packing companies, and he later argued railroad cases before the Supreme Court. President Warren Harding nominated him to the Supreme Court in November 1922. During his career on the High Court, Butler wrote 323 majority opinions, 44 dissenting opinions and 3 concurring opinions.

The most impressive thinker was George Sutherland, a champion of natural rights jurisprudence. He believed the most important function of law was to protect individual liberty by restraining government power – historically, the biggest threat to liberty everywhere. Sutherland understood that for ordinary people, economic liberty was generally the most important liberty. Intellectuals tended to rate First Amendment liberties more highly because they spoke out publicly and published their political views, but every individual’s livelihood depended on freedom to choose where to work, where to live, where to travel, where to spend money, what to buy and how much to pay. Freedom of contract was absolutely essential for all these things. It would be hard to find a Supreme Court justice who ever did a better job defending economic liberty than George Sutherland.

He was born in 1862 in Stony Stratford, England, and his family emigrated to America when he was a child. They moved to Utah, the second state to adopt woman suffrage, and he was educated at Brigham Young University and the University of Michigan. He began practicing law in 1883. He entered Republican politics, serving in the U.S. House of Representatives (1901- 1903) and the Senate (1905-1917). As a U.S. Senator, Sutherland had introduced the "Anthony Amendment," the proposed constitutional amendment which would give women the right to vote. "When we have established the righteousness of the case for a Democracy," he declared in a 1915 speech, "when we have proven the case for universal manhood suffrage, we have made clear the case for womanhood suffrage as well."

Defeated during the 1916 elections, he became an advisor to Warren Harding and was nominated to the U.S. Supreme Court soon after Harding was elected president in 1920. Sutherland wrote the majority opinion in Adkins v. Children’s Hospital, 261 U.S. 525 (1923), striking down the Minimum Wage Act of 1918 that applied only to women. The case was argued before the Supreme Court by Felix Frankfurter who, like his mentor Louis Brandeis, submitted a brief (a thousand pages) full of sociological data.

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