Vol. 15 No.1 (January 2005), pp.55-57

SALT OF THE EARTH, CONSCIENCE OF THE COURT: THE STORY OF JUSTICE WILEY B. RUTLEDGE, by John M. Ferren. Chapel Hill, NC: The University of North Carolina Press. 2004. 592pp. Cloth. $39.95. ISBN: 0-8078-2866-1.

Reviewed by Artemus Ward, Department of Political Science, Northern Illinois University. Email: aeward@niu.edu

Senior D.C. Circuit Court of Appeals Judge John M. Ferren has succeeded in crafting the definitive biography of Justice Wiley B. Rutledge. At once, the reader is struck by Ferren’s attention to detail. He meticulously documents every facet of Rutledge’s life. And when he is unable to glean the reasons behind a particular choice or development in Rutledge’s days, he tells the reader that no documentation exists, or makes clear that he is making an inference based on what information is available. This kind of thoughtful analysis will no doubt prove useful as future readers use Ferren’s biography in their projects.

Prior to Ferren’s extensive treatment, the only book-length project on Rutledge was Fowler V. Harper’s 1965 book JUSTICE RUTLEDGE AND THE BRIGHT CONSTELATION. Where Harper centered his analysis on how Rutledge’s jurisprudence fit into the larger civil liberties jurisprudence of the Stone and Vinson Courts, Ferren’s project is a true judicial biography in every sense. As someone who has extensively used judicial biographies as secondary sources in my own research, I can attest to the value of Ferren’s thoroughness.

The reason Ferren is so successful, is that he conducted an exhaustive investigation of his subject. Ferren conducted approximately 160 interviews with those who new the Justice including family members, friends, former students and law clerks – not only Rutledge’s clerks, but those of other justices who served when Rutledge was on the Court. Ferren is so thorough that when, for example, a clerk’s statement or recollection disagrees with another clerk, Ferren notes this. He delved not only into the Rutledge papers housed at the Library of Congress, as well as those of the other justices with whom he served, but he also used primary material from more than twenty different archives and forty manuscript collections. Ferren’s effort results in a meticulously researched, yet highly readable biography.

The first half of the book is divided into three distinct periods. Ferren recounts Rutledge’s early years (1894-1926) in the first fifty pages, charting the future justice’s journey from his birthplace in Kentucky to his college-years in Tennessee and Wisconsin, his high-school teaching years in Indiana and New Mexico, and ultimately Colorado where he graduated from law school, went into private practice, and began his career as a law professor. We learn that Rutledge was a college debater, that he displayed confidence, religious tolerance, a commitment to public service and hard work. The next period Ferren covers includes Rutledge’s tenure as a law professor and Dean (1926-1939). [*56] In 100-plus pages we learn about Rutledge’s legal philosophy and liberalism during his time at Washington University in St. Louis and the University of Iowa. Though not a brilliant teacher or writer, Rutledge taught a wide-range of subjects and, with his background in debate, relished giving speeches. As an academic he supported amending the constitution to outlaw child labor and supported Franklin Roosevelt’s court-packing plan. In the next fifty pages (1939-1943), Ferren covers Rutledge’s years on the D.C. Circuit Court of Appeals, his judicial philosophy, and how he came to the Supreme Court through the lobbying of FDR supporter Irving Brant, the editor of the ST. LOUIS STAR TIMES.

While the story of the first fifty years of Rutledge’s life is a fascinating look into the development of a public servant and federal judge in the New Deal era, what most readers will want to focus on is the second half of the book. Rutledge had a brief six-year tenure (1943-1949) on the High Court before dying of a cerebral hemorrhage at age fifty-five. Yet Ferren devotes the latter half of the book – nearly 200 pages – to these years and details the law and politics of each of the major and many of the “minor” cases Rutledge took part in. In the era before opinion-assignment was equalized and law clerks took up much of the writing chores, Rutledge received very few assignments from the Chief Justices with whom he served. This was because Rutledge did not enjoy writing, was so methodical that his colleagues routinely asked him to drop sections from his opinions, and because he took so long to write the opinions he was assigned. As such, he was often overshadowed in important cases by his speedier, and therefore more prolific, colleagues like Hugo Black and William O. Douglas.

Ferren devotes one particularly interesting chapter to the “Acrimony in the Court.” He details the jurisprudential divisions among the justices, Justice Owen Roberts’ estrangement from his colleagues after someone, possibly Justice Douglas, leaked to radio commentator Drew Pearson that the Court was divided with an undecided justice in FEDERAL POWER COMMISSION v. HOPE NATURAL GAS (1944), the falling out between Justice Felix Frankfurter and Douglas, and the “feud” between Justices Hugo Black and Robert Jackson. Despite all this turmoil, Rutledge exerted a calming force and maintained good relationships with all of his colleagues.

Still, most of the chapters in this section detail the important cases in which Rutledge participated, as well as those cases where he wrote opinions. For example, Ferren devotes a chapter to “First Amendment Freedoms,” detailing the landmark cases involving the Jehovah’s Witnesses, JONES v. CITY OF OPELIKA (1943) and WEST VIRGINIA BOARD OF EDUCATION v. BARNETTE (1943), which overruled the flag salute case MINERSVILLE SCHOOL DISTRICT v. GOBITIS (1940), and the religious establishment case EVERSON v. BOARD OF EDUCATION (1947) for which Rutledge wrote his most famous opinion – a dissent from a holding allowing children to use city buses to attend Catholic schools.

Similarly, Ferren covers the Japanese-American internment controversies, such as KOREMATSU v. UNITED STATES (1944), [*57] where he sided with Black in upholding the military’s curfew order. Ferren gives extensive treatment to Rutledge’s vigorous dissent in IN RE YAMASHITA (1946), in which he felt that Japanese General Tomoyuki Yamashita had not received a fair trial under the Constitution even though Yamashita was an enemy combatant prosecuted in a military tribunal on foreign soil. Other chapters cover Rutledge’s participation and contribution to a number of legal areas including criminal procedure, the commerce clause, and equal protection.

In the end, we get a portrait of Wiley Rutledge as a decent and kind man, a good judge, and a public servant who was a product of his time. He valued individual rights in the context of a living constitution, adaptable to changing circumstances. Ferren’s thoroughness and accessible writing make for informative and enjoyable reading. This book is highly recommended for anyone doing research on the Court during the end of the Stone and beginning of the Vinson Courts, and for anyone with an interest in the development of the New Deal regime and the Supreme Court as an institution.

REFERENCES:

Harper, Fowler V. 1965. JUSTICE RUTLEDGE AND THE BRIGHT CONSTELLATION. New York: The Bobbs-Merrill Co.

CASE REFERENCES:

EVERSON v. BOARD OF EDUCATION, 330 U.S. 1 (1947).

FEDERAL POWER COMMISSION v. HOPE NATURAL GAS, 320 U.S. 591 (1944).

JONES v. CITY OF OPELIKA, 319 U.S. 103 (1943).

IN RE YAMASHITA, 327 U.S. 1 (1946).

KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).

MINERSVILLE SCHOOL DISTRICT v. GOBITIS, 310 U.S. 586 (1940).

WEST VIRGINIA BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624 (1943).

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© Copyright 2005 by the author, Artemus Ward.