William Lyle Stamps and Dr. Paul Edwards, Political Science
George Alexander Sutherland was the first and only Utahn to be appointed to the United States Supreme Court. Curiously, he isn’t mentioned in Utah History books. Further, his national reputation is not much brighter. While acknowledged as a “good” justice, he isn’t ranked with the greatest. Despite his many accomplishments and lasting influence, he has been forgotten (Peterson 1980, 310).
His historical abandonment are quite puzzling. A living Horatio Alger story, Sutherland began work as a poor boy of fourteen and ended his working career as a judge on the highest bench of the strongest country in the world. Academically, he attended Brigham Young Academy and received legal training at the University of Michigan. Politically, he started as a state senator in the first state legislature of Utah in 1898 and ended as a two-term United States Senator. Judicially, he was a founding partner of Utah’s largest legal firm, President of the American Bar Association, an international arbitrator, and finally a Justice of the Supreme Court of the United States.
There appear to be two different reasons for his banishment, depending on whether dealing with the local or national level. Locally, Justice Sutherland was not a member of the predominant faith of the State of Utah, i.e. the Church of Jesus Christ of Latter-day Saints. Nationally, his jurisprudence has been characterized as pro-business, laissez faire, and conservative. These labels combine to mark him as an undesirable influence on Supreme Court jurisprudence.
While my research is not concluded, some preliminary observations and claims can be made.
While on the Supreme Court, Justice Sutherland wrote a prodigious 320 of opinions of which 295 were majority opinions. However, as of 1976, Sutherland had “more of his opinions…overruled than those of any other Justice” (White 1976, 194). He was known as the “intellectual leader” of the four member block of the Court known as the “four horsemen.” These “four” worked together to block the implementation of President Franklin Roosevelt’s New Deal programs by declaring them unconstitutional.
While some of his opinions were overturned to allow for the legality of re-enacted New Deal program, most suffered from another problem of jurisprudential legitimacy. Most judicial scholars have identified Sutherland as an adherent of social Darwinism and a cleric of Herbert Spencer. This is due to his first biographer, Joel Francis Paschal, who labeled Sutherland as a Spencerian, primarily upon the assumption that Karl G. Maeser had taught Sutherland this doctrine (Paschal 1951, 8-9). This perception led the Court to systematically overturn his decisions, as the post-Sutherland saw its duty to reverse his “enactment of the social statistics of Herbert Spencer” (Holmes 1927).
However, Sutherland’s status as an adherent of social Darwinism is highly questionable. Sutherland himself admitted that Karl G. Maeser was his chief intellectual influence. As noted by a later biographer, Hadley Arkes, Sutherland was highly unlikely to learn social Darwinism from either Maeser or the Mormon Brigham Young Academy (Arkes 1994, 40). Dr. Charles Peterson, emeritus professor of History at Utah State University, said “there is no evidence” that Maeser taught social Darwinism, and in fact, he wrote a book which sought to discredit social Darwinism (1980, 310). In fact, my research leads to a similar conclusion. Sutherland’s jurisprudence makes more sense as seen through the prism of natural law.
In Utah, Justice Sutherland’s status as a “Gentile” prevented him from receiving more recognition. While highly respected by leaders of the Mormon Church, especially given his instrumental role in the seating of Apostle-Senator Reed Smoot, this did not save him from the disdain of non-members in the minds of Utahns. While a non-Mormon might overcome this stigma, Sutherland was the son of an apostate, which means social exile in Utah. Today in Provo, the boyhood home of Smoot stands as a historical site, while the home of Sutherland was demolished. The new state courthouse in Salt Lake was named after a former governor, not its most able jurist.
While previous generations have been unwilling to acknowledge the considerable contributions of Justice Sutherland, the time is ripe for change. A more cosmopolitan Utah is now capable of accepting non-members within its midst. Nationally, without his social Darwinist skin, the jurisprudence of Sutherland shines more brightly.
References
- Arkes, Hadley. 1994. The Return of George Sutherland: Restoring a jurisprudence of natural rights. Princeton: Princeton University Press.
- Paschal, Joel Francis. 1951. Mr. Justice Sutherland: A man against the state. Princeton: Princeton University Press.
- Peterson, Charles S. 1980. Note. Utah Historical Quarterly, Vol 48 No. 3.