Wiley Blount Rutledge, Jr. (1894–1949)

Born in Cloverport, Kentucky, the son of a Baptist preacher, Wiley Blount Rutledge, Jr. was appointed to the Supreme Court in 1943 by Franklin D. Roosevelt and became—most notably as a dissenter—one of the most far-reaching proponents of civil liberties and civil rights in the Court’s history. Rutledge grew up in Tennessee, attending Maryville College; graduated from the University of Wisconsin in 1914; and began law school at Indiana University. He contracted tuberculosis, however, and, after treatment in North Carolina, married his Maryville Greek teacher, Annabel Person, and chased the cure by heading west to Albuquerque, New Mexico, to teach high school. In 1920, the young couple moved to Boulder, Colorado, where Rutledge completed law school, practiced law for two years, and joined the University of Colorado law faculty. (Years later, Roosevelt would exclaim, ‘‘Wiley, you have a lot of geography!’’)

Legal Educator

In 1926, Rutledge became a professor of law at Washington University in St. Louis and served as dean from 1931 to 1935. Well liked and respected by students and faculty, he taught business organizations and legal ethics, raised admission standards, reformed the curriculum, and promoted interdisciplinary studies, especially law and social work. Rutledge also was active in the community. He served on the Social Justice Commission of St. Louis and campaigned for reform of Missouri’s criminal justice system, seeking to update the criminal code, make women eligible for jury duty, and establish a voluntary defender plan. His most dogged efforts, however, were on behalf of the Child Labor Amendment submitted to the states by Congress years earlier (and never adopted), authorizing Congress to set minimum ages and maximum hours for children in the workplace—a reform the Supreme Court had twice struck down as unconstitutional.

In 1935, Rutledge became dean of the College of Law at the University of Iowa, where again he reformed the curriculum and was highly regarded. He pressed the Association of American Law Schools to support legal aid for the poor, and, as an enthusiastic New Dealer, he supported Roosevelt’s Court-packing plan in 1937. Earlier, while in St. Louis, he had caught the attention of Irving Brant, editorial page editor of the St. Louis Star-Times, who was particularly impressed by Rutledge’s support of the Child Labor Amendment and by a speech Dean Rutledge gave in 1936 attacking the Supreme Court’s decision eviscerating the Agricultural Adjustment Act. A friend and supporter of Roosevelt, Brant urged the president to consider Rutledge for the Supreme Court in 1938 if the favorite, Felix Frankfurter, were found unsuitable. Frankfurter was selected, so Brant pushed Rutledge for the next vacancy in 1939, filled by William O. Douglas. As runner-up, however, Rutledge was named to the U.S. Court of Appeals for the District of Columbia (later the District of Columbia ‘‘Circuit’’). There, he established himself as a strong supporter of First Amendment rights and, upon the resignation of Justice James F. Byrnes, was appointed to the Supreme Court in 1943.

Supreme Court Justice: First Amendment Cases

Within a month of his investiture, Rutledge helped form a five-to-four majority in the Jones v. Opelika (1943) and Murdock v. Pennsylvania (1943) cases that struck down under the First Amendment’s ‘‘free exercise’’ clause the requirement that Jehovah’s Witnesses pay municipal taxes and licences when selling religious literature. He then joined the majority in West Virginia Board of Education v. Barnette (1943), invalidating a West Virginia requirement that schoolchildren, objecting on religious grounds, salute the American flag. However, in writing for the majority in Prince v. Massachusetts (1944), another Jehovah’s Witness case, Rutledge upheld a Massachusetts statute imposing criminal fines on adults who allowed children to distribute religious literature on the street—a statute Rutledge perceived as a child labor, not a ‘‘free exercise’’ regulation. Rutledge also stood firmly for separation of church and state under the First Amendment’s Establishment Clause, dissenting in Everson v. Board of Education (1948) when the Court sustained five to four a New Jersey ordinance authorizing reimbursement of transportation expenses for children attending Catholic as well as public schools.

In other First Amendment decisions, Rutledge joined those who held that freedom of speech had a ‘‘preferred position’’ among the rights entitled to constitutional protection. Using perhaps the strongest language of his time to that effect, he wrote for the majority in Thomas v. Collins (1945), reversing five to four the criminal contempt conviction of a labor organizer who had disobeyed a court order forbidding him to address a mass gathering without obtaining a state-required organizer’s card.

Wartime Decisions

In the 1940s, the Supreme Court overturned several lower court decisions that had revoked the naturalized American Citizenship of alleged communists or Nazis. The Court concluded that the government had not met its burden of proving that Citizenship had been illegally procured. Taking an absolutist position, however, Rutledge argued in Schneiderman v. United States (1943), Knauer v. United States (1946), and Klapprott v. United States (1949) that naturalized Citizenship, once granted, could never be revoked for actions prior to naturalization, but only for actions ‘‘taking place afterward’’ (as also could happen to native-born Americans). He rejected ‘‘two classes of citizens, one superior, the other inferior’’ as if in ‘‘suspended animation’’ vulnerable to erasure.

In the more infamous cases arising out of World War II, Rutledge’s record is mixed. He joined not only the unanimous Court in Hirabayashi v. United States (1943), upholding the West coast curfew imposed on persons of Japanese ancestry, but also the six-to-three majority in Korematsu v. United States (1944), sustaining the Japanese-American evacuation program, a vote he never really explained. On the other hand, in perhaps his most heralded opinion— citing the Articles of War, the Geneva Convention, and Fifth Amendment due process—Rutledge dissented from the Court’s deference to the military commission conviction of Lieutenant General Tomoyuki Yamashita (In re Yamashita [1946]), the Japanese commander in the Philippines, who was sentenced to death for failure to prevent atrocities in Manila at the end of the war.

Rutledge also is known for three other wartime dissents. He voted to reverse the convictions of John L. Lewis and the United Mine Workers (United States v. United Mineworkers [1947]) for contempt of court in refusing to honor a federal court order enjoining a national coal strike. In Yakus v. United States (1944), he voted to declare unconstitutional a criminal price control statute that barred the accused from challenging the price ceilings while defending the accusation. Congress accepted Rutledge’s analysis and amended the statute. Finally, in Ahrens v. Clark (1948), Rutledge dissented from an opinion by Douglas, who rejected petitions for writs of habeas corpus by German nationals awaiting deportation after hostilities had ceased. Douglas reasoned that the statute required the habeas petition to be filed in New York, the district where the prisoners were held, not in the District of Columbia, where the Ahrens petition had been filed. Rutledge stressed, to the contrary, that precedent called for filing the petition in a jurisdiction where the jailer could be found, which included the District of Columbia, home of the attorney general. Eventually, Ahrens was overruled. More recently, the Supreme Court’s decision in Rasul v. Bush (2004)— holding that U.S. courts have jurisdiction over challenges to the legality of the detention of foreign nationals captured abroad while fighting for the Taliban and incarcerated at the U.S. Navy base at Guanta´namo Bay, Cuba—is traceable to Justice Rutledge’s dissent in Ahrens.

Criminal Cases

Rutledge sided with criminal defendants 80 percent of the time compared to the Court’s 52 percent during his tenure there. Especially when the death penalty was involved, Rutledge would construe an ambiguous statute against the government, or grant the defendant a generous interpretation of due process, or even invoke the Court’s inherent supervisory power over the administration of criminal justice to achieve what he deemed the just result. The justice also argued for an expanded right to counsel in criminal cases, in state as well as federal courts, and worked hard to achieve federal court review of state criminal proceedings. He deserves credit, through dissents in Parker v. Illinois (1948) and Marino v. Ragen (1947), for successfully pressing the Court eventually to mandate the reform of Illinois’ byzantine criminal appellate system—a system so complex that no defendant could know for sure how to exhaust state court remedies, a requirement for seeking relief in the Supreme Court.

Rutledge also advocated broadening criminal due process in state as well as federal courts. He dissented in Foster v. Illinois (1947), for example, when the Court held, five to four, that Fourteenth Amendment due process did not guarantee an indigent criminal defendant the right to be informed that state law entitled him to a free lawyer upon request. Had Foster been tried in federal court, however, the Sixth Amendment would have guaranteed him the right to counsel, a situation presenting the question whether the entire Bill of Rights, not just some of them as previously held in Palko v. Connecticut (1937), should apply to the states through the Fourteenth Amendment due process and privileges and immunities clauses. In Adamson v. California (1947), the Court reaffirmed Palko, five to four, over the dissent of Justice Hugo Black, who opined that the Fourteenth Amendment incorporated the Bill of Rights fully, not selectively. Rutledge joined Justice Frank Murphy, who dissented separately, agreeing that the Fourteenth Amendment incorporated the entire Bill of Rights, but explaining that the amendment did not impose a Bill-of-Rights ceiling; due process might well guarantee additional rights in state courts. Rutledge also strongly supported the Fourth Amendment’s ‘‘exclusionary rule,’’ barring admission of unlawfully seized evidence in federal court. Dissenting in Wolf v. Colorado (1949), he argued that the rule was applicable in state courts as well (a view that eventually prevailed).

Equal Protection of the Laws

In his dissent (discussed above) concluding that the indigent defendant, Foster, had been denied due process, Rutledge added that Foster had been denied equal protection of the laws, one of the earliest pronouncements by a Supreme Court justice premising denial of equal protection on poverty. Later, dissenting in Goesaert v. Cleary (1948), Rutledge wrote the first modern gender discrimination opinion. He found a denial of equal protection when the majority upheld a Michigan statute forbidding any female to tend bar unless she was the ‘‘wife or daughter of the male owner.’’ Rutledge also stood against discrimination based on blood line and race. In Kotch v. Board of River Port Pilot Commissioners (1947), he dissented from Black’s opinion upholding a Louisiana system permitting a river pilots’ association, required by law to guide Mississippi River boats near New Orleans, to choose all new pilots from among family and friends. And in Fisher v. Hurst (1948), he was the lone dissenter when the Court rejected Thurgood Marshall’s petition for a writ of mandamus to compel Oklahoma’s compliance with the Court’s earlier mandate to provide the African-American petitioner a legal education ‘‘as soon as it does for applicants of any other group.’’ Rutledge interpreted the mandate to mean that the law school must be shut down entirely unless the petitioner was admitted, not left open to second- and third-year students as the Oklahoma courts were allowing. Only in voting rights cases did Rutledge balk at an equal protection remedy. In Colegrove v. Green (1946) and MacDougall v. Green (1948), he joined colleagues who concluded that unequal voting districts and discriminatory signature requirements for getting a political party onto the ballot violated equal protection. But in each case, Rutledge perceived that the proposed remedy—at-large election or last-minute access to the ballot—would create inequities of their own barring relief.

Commerce Clause Decisions

When Michigan prosecuted a charter boat company under its civil rights act for refusing to carry African- American schoolchildren upriver from Detroit to an island in Canada, Rutledge wrote for a majority that sustained Michigan’s action against a defense that the commerce clause, standing alone, forbade such regulation of foreign commerce (Bob-Lo Excursion Co. v. Michigan [1948]). In other contexts, Rutledge had become the Court’s most thoughtful student of the commerce clause, writing expositions in Freeman v. Hewitt (1946) that maximized state taxation of interstate transactions and in Prudential Insurance Co. v. Benjamin (1946) that maximized both federal and state actions affecting interstate commerce. Both rationales have survived.

Creative Constitutional Jurisprudence

When the Court considered a challenge to a federal statute expanding federal ‘‘diversity’’ jurisdiction to include suits not only between citizens of different ‘‘states,’’ as specified in Article III, but also citizens of the District of Columbia and the territories, the Court upheld the statute five to four in National Mutual Insurance Co. v. Tidewater Transfer Co. (1949). The majority cobbled together an opinion by Justice Robert Jackson finding authority in the ‘‘District clause’’ (Article I, Section 8, Clause 1) and an opinion by Rutledge, joined by Murphy, finding authority in Article III. Rutledge thus deemed the District of Columbia a ‘‘state’’ for this purpose, as in other instances (such as the Sixth Amendment right to a speedy criminal trial) where constitutional rights applicable to the ‘‘states’’ had been extended to the District of Columbia. Unlike the others, therefore, Rutledge and Murphy saw the availability of federal diversity jurisdiction as an access to justice—a civil rights—issue.

Wiley Rutledge had unswerving faith that law could deliver justice, but only if the Constitution, like the common law, received an evolving, not a static, interpretation and only if, as he once wrote, the Constitution ‘‘places the rights to life and to liberty above those of property.’’ His jurisprudence, ultimately, was derived from his love of people—regardless of station—with considerable depth of feeling. Significantly, on an acrimonious Court, he was the only justice who had both the personal and the intellectual respect of all his colleagues.

JOHN M. FERREN

References and Further Reading

• Ferren, John M. Salt of the Earth, Conscience of the Court: the Story of Justice Wiley Rutledge. Chapel Hill: University of North Carolina Press, 2004.
• Harper, Fowler V. Justice Rutledge and the Bright Constellation. Indianapolis: Bobbs-Merrill, 1965.
• Pollak, Louis H. ‘‘Wiley Blount Rutledge: Profile of a Judge.’’ In Six Justices on Civil Rights, edited by Ronald D. Rotunda, 177. London: Oceana, 1983.
• Rutledge, Wiley. ‘‘The Federal Government and Child Labor.’’ Social Service Review 7 (1933): 555.
• ———. ‘‘Social Changes and the Law.’’ Proceedings, American Association of Collegiate Schools of Business 88 (1934).
• ———, Significant Trends in Modern Incorporation Statutes, Washington University Law Quarterly 22 (1937): 305; University of Pittsburgh Law Review 3 (1937): 273.
• ———. A Declaration of Legal Faith. Lawrence: University of Kansas Press, 1947.
• Stevens, John Paul. ‘‘Mr. Justice Rutledge.’’ In Mr. Justice, edited by Allison Dunham and Philip Kurland, 177. Chicago: University of Chicago Press, 1958.
• A Symposium to the Memory of Wiley B. Rutledge (1894– 1949), Indiana Law Journal 25 (1950); Iowa Law Review 35 (1950).

Cases and Statutes Cited

• Adamson v. California, 332 U.S. 46 (1947)
• Ahrens v. Clark, 335 U.S. 188, 193 (1948)(Rutledge, J., dissenting) (overruled by Braden v. 30th Judicial Circuit of Kentucky, 410 U.S. 484 (1973); see generally Rasul v. Bush, 72 U.S.L.W. 4596 (U.S. June 28, 2004) (Nos. 03- 334 and 03-043)
• Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28 (1948)
• Colegrove v. Green, 328 U.S. 549, 564 (1946) (Rutledge, J., concurring in result)
• Everson v. Board of Education, 330 U.S. 1, 28 (1948) (Rutledge, J, dissenting)
• Fisher v. Hurst, 333 U.S. 147, 149 (1948) (Rutledge, J., dissenting)
• Foster v. Illinois, 332 U.S. 134, 141 (1947) (Rutledge, J., dissenting)
• Freeman v. Hewitt, 329 U.S. 249, 259 (1946) (Rutledge, J., concurring) (cited with approval in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 [1977])
• Goesaert v. Cleary, 335 U.S. 464, 467 (1948) (Rutledge, J., dissenting)
• Hirabayashi v. United States, 320 U.S. 81, 114 (1943) (Rutledge, J., concurring)
• In re Yamashita, 327 U.S. 1, 41 (1946) (Rutledge, J., dissenting)
• Jones v. Opelika, 319 U.S. 103 (1943) (per curiam) Klapprott v. United States, 335 U.S. 601, 616 (1949) (Rutledge, J., concurring in result)
• Knauer v. United States, 328 U.S. 654, 675 (1946) (Rutledge, J., dissenting)
• Korematsu v. United States, 323 U.S. 214 (1944)
• Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 564 (1947) (Rutledge, J., dissenting)
• MacDougall v. Green, 335 U.S. 281, 284 (1948) (Rutledge, J., concurring in result)
• Marino v. Ragen, 332 U.S. 561, 563 (1947) (Rutledge, J., dissenting) (followed in Loftus v. Illinois, 334 U.S. 804 (1948) (per curiam) and Young v. Ragen, 337 U.S. 235 [1949])
• Murdock v. Pennsylvania, 319 U.S. 105 (1943)
• National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 604 (1949) (Rutledge, J., concurring)
• Palko v. Connecticut, 302 U.S. 319 (1937)
• Parker v. Illinois, 333 U.S. 571, 577 (1948) (Rutledge, J., dissenting) Prince v. Massachusetts, 321 U.S. 158 (1944)
• Prudential Insurance Co. v. Benjamin, 328 U.S. 408 (1946) (cited with approval in U.S. Dep’t of the Treasury v. Fabe, 508 U.S. 491 [1993])
• Rasul v. Bush, 72 U.S.L.W. 4596 (U.S. June 28, 2004) (Nos. 03-334 and 03-043)
• Schneiderman v. United States, 320 U.S. 118, 165 (1943) (Rutledge, J., concurring)
• Thomas v. Collins, 323 U.S. 516 (1945) (cited with approval in Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150 [2002])
• United States v. United Mineworkers, 330 U.S. 258, 342 (1947) (Rutledge, J., dissenting)
• West Virginia Bd. of Education v. Barnette, 319 U.S. 524 (1943)
• Wolf v. Colorado, 338 U.S. 25, 47 (1949) (Rutledge, J., dissenting) (overruled by Mapp v. Ohio, 367 U.S. 643 [1961])
• Yakus v. United States, 321 U.S. 414, 460 (1944) (Rutledge, J., dissenting)

See also Aliens, Civil Liberties of; Bill of Rights: Structure; Capital Punishment; Children and the First Amendment; Citizenship; Common Law or Statute; Conscientious Objection, the Free Exercise Clause; Constitution of 1787; Criminal Law/Civil Liberties and Noncitizens in the United States; Denaturalization; Douglas, William Orville; Due Process; Due Process of Law (V and XIV); Equal Protection of Law (XIV); Establishment Clause Doctrine: Supreme Court Jurisprudence; Everson v. Board of Education, 330 U.S. 1 (1947); Exclusionary Rule; Flag Salute Cases; Fourteenth Amendment; Frankfurter, Felix; Free Exercise Clause Doctrine: Supreme Court Jurisprudence; Freedom of Speech: Modern Period (1917–Present); Habeas Corpus: Modern History; Incorporation Doctrine; Jackson, Robert H.; Japanese Internment Cases; Jehovah’s Witnesses and Religious Liberty; Jurisdiction of the Federal Courts; Marshall, Thurgood; Murphy, Frank; Prince v. Massachusetts, 321 U.S. 158 (1944); Privileges and Immunities (XIV); Right to Counsel; Right to Counsel (VI); Roosevelt, Franklin Delano; State Aid to Religious Schools; State Courts; Voting Rights (Compound); Wall of Separation; West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943); World War II, Civil Liberties in