SALT OF THE EARTH, CONSCIENCE OF THE COURT
The Story of Justice Wiley Rutledge
By John M. Ferren
Univ. of North Carolina. 577 pp. $39.95
Wiley Rutledge may be our most interesting forgotten Supreme Court justice. He served on the court for a mere six years, from 1943 to 1949, before a sudden death at 55. Despite his brief tenure, he contributed a powerful voice on civil liberties, defendants' rights, and race and gender discrimination. Most distinctively, he is a thinking person's justice whose comprehensive opinions, whether one agrees with them or not, are the work of a serious mind. They frequently have framed the terms of debate for decades.
John Ferren, a senior judge on the D.C. Court of Appeals, has written a compelling biography, bringing to life the often-overlooked Rutledge, as well as the court and times in which he labored.
Every Supreme Court appointment has its own alchemy, and no justice might have seemed more unlikely than Rutledge. Born in 1894 in Kentucky, he worked his way through law school as a high school teacher, returned to law school as a professor and ultimately became law school dean at Washington University in St. Louis and the University of Iowa. During his academic years, Rutledge plunged into public policy issues, particularly as the Supreme Court struck down key parts of the New Deal. He supported a constitutional amendment permitting the regulation of child labor and emerged as one of the few legal leaders defending Franklin Roosevelt's court-packing plan.
After battling a hostile court, FDR suddenly had the chance to fill eight vacancies within a six-year period when many justices retired or died. Irving Brant, an influential New Deal supporter and editorial writer in St. Louis who had FDR's ear and who knew Rutledge, touted the Iowa dean for the court. Roosevelt appointed him to the D.C. Court of Appeals in 1939 and then, in 1943, made Rutledge his final appointment to the Supreme Court. In an era when geographic balance was prized, Roosevelt told Rutledge, "Wiley, you have a lot of geography."
The court that Rutledge joined overwhelmingly rejected the judicial imperialism that had invalidated broad swaths of legislation, but it was deeply fractured by personal and ideological feuds. Felix Frankfurter and William O. Douglas shared an abiding mutual contempt; Hugo Black and Robert H. Jackson bitterly denounced each other. Rutledge was a soothing force in this caldron of personalities. A gregarious man, he managed good relations with all of the justices. He became particularly close with Frank Murphy, another Roosevelt appointee, who died just weeks before Rutledge.
As Ferren recounts, Rutledge's opinions, particularly his concurrences and dissents, generated a lasting impact. His pathbreaking positions in favor of civil rights, a high wall between church and state, broad First Amendment rights, and defendants' rights became classics and often carried the day in later years. In an opinion of particular interest today, he vigorously dissented from a decision upholding a military tribunal convicting and executing Japanese Gen. Tomoyuki Yamashita. (A major stain on Rutledge's record, however, is his surprising vote to join five other justices to uphold the internment of Japanese American civilians in the infamous Korematsu case.)
His leadership extended off the bench. In a remarkable speech on women's rights in 1948, he objected that women do not receive "equal pay for equal work."
Although Rutledge's positions are readily pigeonholed as "liberal," the real hallmark of his opinions is their intellectual heft. Ironically, Ferren maintains that Rutledge's exhaustiveness limited his effect on his colleagues. Justices urged him to drop sections of opinions, and Ferren suggests that the length and complexity of Rutledge's decisions produced "impatience" in other justices. But it is precisely the depth of analysis, including careful attention to the facts of each case and an aversion to sweeping generalizations, that has given Rutledge's opinions a more enduring impact than, for example, the peremptory opinions of the far better-known William Douglas. Ferren emphasizes that Rutledge "forced his colleagues to think" -- a compliment of the highest order, and a statement equally true for any reader today.
Rutledge's habit of mind had a profound impact on one of his clerks, Justice John Paul Stevens. As a Stevens clerk, I knew that a Rutledge opinion carried special weight with the justice -- not from sentimentality but because it reflected a quality of thought and reason that he highly valued. As Washington Post reporter Charles Lane revealed in an article earlier this year, Stevens's analysis in the recent Guantanamo Bay case drew heavily on his work with Rutledge on a 1948 dissent.
Ferren's biography is first-rate. It is prodigiously researched and includes the fruits of some 160 interviews. The book is marred by an occasional indulgence in cliche (as the title indicates) and an overabundance of detail (in unconscious emulation of Rutledge?), particularly in the early chapters. But these are minor flaws in an admirable work. Ferren has made an important contribution in reclaiming the lost life of an outstanding justice.