Harold Hitz Burton

BURTON, HAROLD HITZ

Harold Hitz Burton served as a Supreme Court justice during the years the Court outlawed SEGREGATION.

Burton was born June 22, 1888, in Jamaica Plain, Massachusetts. He attended Bowdoin
College, where he was elected Phi Beta Kappa, and graduated summa cum laude in 1909. He then entered Harvard Law School where he received his bachelor of laws degree in 1912. He married Selma Florence Smith and the couple set out to take advantage of opportunity in the burgeoning Midwest. They settled in Cleveland
where Burton established a successful law practice.
Burton served in the infantry in France during
WORLD WAR I. He rose to the rank of captain
and was awarded the Purple Heart. In 1923 he
began teaching law at Western Reserve University
(now Case Western Reserve University) and
he remained on the faculty there until 1925.
Burton’s political career began to take shape
when he was elected to the Ohio legislature in
1929. He also acted as chief legal official of
Cleveland from 1929 to 1932. In 1935 he was
elected mayor of Cleveland and he was
returned to office twice. By 1940 Burton’s name
and reputation for integrity were well established
and he easily won election to the U.S.
Senate. He became known in Washington, D.C.,
as a moderate conservative who advocated U.S.
membership in the newly formed UNITED
NATIONS.
When a vacancy occurred on the Supreme
Court in 1944, President HARRY S. TRUMAN, a
Democrat, was under pressure to name a
Republican to fill the slot. Truman did the politically
expedient thing: he named Burton, a moderate
Republican whom he admired and who
would likely be replaced in the Senate by a Democrat. Burton was a popular choice. He was
confirmed within a day of his nomination with
no testimony heard by the SENATE JUDICIARY
COMMITTEE and unanimous approval by the
full Senate.
Burton was a hardworking, conscientious,
dispassionate, and open-minded justice. His
moderate conservatism was a unifying influence
on a highly fractious court. He was noted for his
ability to bridge conflicting factions with narrowly
written opinions that settled an issue
without taking a philosophical stand. He generally
supported STATES’ RIGHTS against interference
by the federal government, except where
his sensitivity to human suffering was aroused.
In 1947 he wrote a vigorous dissent from the
Court’s decision to allow Louisiana to execute a
prisoner after several previous attempts to execute
him had failed. The Court held that the
state’s continued efforts to execute the man did
not constitute “cruel and unusual” punishment.
Burton wrote, “It is unthinkable that any state
legislature in modern times would enact a statute expressly authorizing CAPITAL PUNISHMENT by repeated applications of an electric current separated by intervals of days or hours until finally death shall result” (Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 91 L. Ed. 422 [1947]).

Burton’s decisions in antitrust and labor disputes tended to favor corporations and management over unions. He was generally opposed to extending individual rights beyond the letter of the Constitution, but he digressed from that stance in matters of racial segregation and discrimination. A decision he authored in 1950 struck down the practice of confining black passengers in railway dining cars to a separate area.

“The curtains, partitions and signs [used to mark that area],” he wrote, “emphasize the artificiality of a difference in treatment which serves only to call attention to racial classifications of passengers holding identical tickets and using the same public dining facility” (Henderson v. U.S., 339 U.S. 816, 70 S. Ct. 843, 94 L. Ed. 1302 [1950]). Burton was also a member of the 1954 Court that unanimously declared that segregation in public schools is unconstitutional (BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873). Burton was compelled to retire in 1958 because of deteriorating health due to Parkinson’s disease. He died October 28, 1964, in Washington, D.C.

FURTHER READINGS
Schwartz, Bernard. 1993. A History of the Supreme Court. New York: Oxford Univ. Press.

Tribe, Laurence H. 1985. God Save This Honorable Court. New York: Random House.

CROSS-REFERENCES
Warren Court.