Pierce Butler (1866–1939)

Pierce Butler, one of the most conservative justices ever to sit on the U.S. Supreme Court, was born March 17, 1866, in a log cabin on a Minnesota farm. One of six children of Irish immigrant parents, Butler, an ardent patriot and devout Catholic, regarded economic liberty and self-reliance as indispensable components of democracy.

A tireless legal advocate for railroads, who was intolerant of social and political dissent, Butler, as an University of Minnesota regent (1901–1924), spearheaded the removal of professors with unorthodox views. Criticism of his reactionary attitude and perceived corporate bias threatened his 1922 Court nomination.

As a Supreme Court justice, Butler, a rugged individualist, often opposed public control of private economic affairs. Due process, he believed, protected contractual freedom from the unreasonable exercise of state police powers, whose scope he narrowly construed to invalidate industrial regulations in Weaver v. Palmer Bros. Co. (1926) and Burns Baking Co. v. Bryan (1924). Refusing to balance public and private rights, Butler’s Village of Euclid v. Ambler Realty Co. (1926) dissent decried zoning ordinances that restricted businesses. Similarly, he invoked economic liberty to invalidate a minimum wage law in Morehead v. New York ex. rel. Tipaldo (1936), taxation in Miller v. Standard Nut Margarine Co. (1932), and sought to void Social Security in Steward Machine Co. v. Davis (1937) (dissent). A vociferous New Deal critic, Butler and three other justices comprised the notorious Four Horsemen, who persisted in interpreting the Constitution inflexibly rather than adapting its limitations to the Depression’s changing circumstances.

In contrast, Butler was more deferential toward public restrictions of free speech and Citizenship. Rigidly patriotic, Butler was unsympathetic to social agitators. In United States v. Schwimmer (1929) and United States v. MacIntosh (1931), he upheld governmental authority to reject alien pacifists’ Citizenship applications, and in Kessler v. Strecker (1939) (dissent), Butler thought that the government could deport a former communist. Similarly, his dissents in Stromberg v. California (1931) and Herndon v. Lowry (1938) demonstrate Butler’s willingness to apply criminal syndicalism laws to communists engaged in expressive activity. Concerned about the dissemination of unorthodox and controversial opinions, Butler’s dissents in Near v. Minnesota (1931) and Hague v. Committee of Industrial Organizations (1939) would have permitted public officials to restrict speech as a public nuisance through prior restraint and vague indirect regulations of its content.

Generally solicitous of criminal defendants’ procedural rights, Butler criticized federal prohibition officials whose search and seizure efforts violated the Fourth Amendment in Olmstead v. United States (1928) (dissent); United States v. Lefkowitz (1932), and Go-Bart Importing v. United States (1931). Butler also demonstrated a slight civil libertarian bent when he dissented silently from Buck v. Bell (1927), which upheld Virginia’s sterilization law.

In matters of race, Butler was less vigilant. In The Alien Land Use Cases (1923), he sustained laws that restricted Asians from owning land, and sanctioned a poll tax in Breedlove v. Suttles (1937) (dissent). Reluctant to expand the scope of due process beyond economic liberty, Butler would have left undisturbed Texas’s all-white primary in Nixon v. Condon (1932) (dissent); educational segregation in Missouri ex. rel. Gaines v. Canada (1938) (dissent); and the conviction of poor black defendants not afforded effective assistance of counsel in the infamous Scottsboro rape case, Powell v. Alabama (dissent).

Pierce Butler, whose social conservatism imbued his constitutional jurisprudence, died November 16, 1939, in Washington, DC.

SAMUEL R. OLKEN

References and Further Reading

• Brown, Francis J. The Social and Economic Philosophy of Pierce Butler. Washington, D.C.: Catholic University of America Press, 1945
• Danelski, David J. A Supreme Court Justice Is Appointed. New York: Random House, 1964
• Olken, Samuel R., The Business of Expression: Economic Liberty, Political Factions and the Forgotten First Amendment Legacy of Justice George Sutherland. William & Mary Bill of Rights Journal 10 (Winter 2002): 249–357
• White, G. Edward. The Constitution and the New Deal. Cambridge, MA: Harvard University Press, 2000

Cases and Statutes Cited

• The Alien Land Use Cases (1923): Frick v. Webb, 263 U.S. 326; Porterfield v. Webb, 263 U.S. 225; Terrace v. Thompson, 263 U.S. 197; Webb v.O’Brien, 263 U.S. 326 (all 1923) 
• Breedlove v. Suttles, 302 U.S. 277 (1937) 
• Buck v. Bell, 274 U.S. 200 (1927) 
• Burns Baking Co. v. Bryan, 264 U.S. 504 (1924) 
• Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) 
• Go-Bart Importing v. United States, 282 U.S. 344 (1931) 
• Hague v. Committee of Industrial Organizations, 307 U.S. 496 (1939) 
• Herndon v. Lowry, 301 U.S. 444 (1938) 
• Kessler v. Strecker, 307 U.S. 22 (1939) 
• Miller v. Standard Nut Margarine Co., 284 U.S. 489 (1932) 
• Missouri ex. rel. Gaines v. Canada, 305 U.S. 337 (1938) 
• Morehead v. New York ex. rel. Tipaldo, 298 U.S. 587 (1936) 
• Near v. Minnesota, 283 U.S. 697 (1931) 
• Nixon v. Condon, 286 U.S. 73 (1932) 
• Olmstead v. United States, 277 U.S. 438 (1928) 
• Powell v. Alabama, 287 U.S. 45 (1932) 
• Steward Machine Co. v. Davis, 301 U.S. 548 (1937) 
• Stromberg v. California, 283 U.S. 359 (1931) 
• United States v. Lefkowitz, 285 U.S. 452 (1932) 
• United States v. MacIntosh, 283 U.S. 605 (1931) 
• United States v. Schwimmer, 279 U.S. 644 (1929) 
• Weaver v. Palmer Bros. Co., 270 U.S. 294 (1926)