Pierce Butler

BUTLER, PIERCE

Pierce Butler served as associate justice of the
Supreme Court from 1923 to 1939. Known for
his conservative views, Butler advocated a laissezfaire (French for “let [people] do [as they choose])” philosophy that sought to minimize government interference in the economy. In the 1930s, when FRANKLIN D. ROOSEVELT’s NEW DEAL policies sought to increase the power of government in U.S. life, Butler voted against the constitutionality of every New Deal measure that came before the Court. By the end of his tenure, Butler was one of the few conservatives on an increasingly liberal Supreme Court, and he became distraught by changes in the Court’s interpretation of the Constitution. “This is not government by law, but by caprice,” he wrote in a 1939 dissent. “Whimseys may displace deliberate
action by chosen representatives and become
rules of conduct. To us the outcome seems
wholly incompatible with the system under
which we are supposed to live” (United States v.
Rock Royal Co-op, 307 U.S. 533, 59 S. Ct. 993, 83
L. Ed. 1446). Butler dissented in several Supreme
Court decisions that overturned laws discriminating
against African Americans, and he rarely
supported the rights of those with dissenting or
radical opinions in society. He did, however,
argue consistently for the rights of those accused
of crimes.
Those who knew him commented on Butler’s
stubbornness and occasional bullying, traits
that often made his relations with others on the
Court less than amicable. Once, after persuading
all on the Court but Justice OLIVER WENDELL
HOLMES JR., of the rightness of his opinion on a
particular matter, Butler said to Holmes, “I am
glad we have finally arrived at a just decision.”
“Hell is paved with just decisions,” Holmes
responded. Commenting on Butler’s conservatism,
Holmes characterized Butler as a
“monolith” with “no seams the frost can get
through.”Butler resolutely stuck to his conservative
principles even in the depths of the Depression.
Something of those views is found in
remarks he made in 1916: “Too much paternalism,
too much wet-nursing by the state, is
destructive of individual initiative and development.
An Athlete should not be fed on predigested
food nor should the citizens of
tomorrow be so trained that they will expect
sustenance from the public ‘pap.’ ”
Many of Butler’s later views were shaped by
his frontier childhood. Butler was born on St.
Patrick’s Day, March 17, 1866, in a log cabin in
Dakota County, Minnesota. His parents had
emigrated from County Wicklow, Ireland, to
escape the potato famine of 1848, and eventually
established their farm only a few miles from
Carleton College, in Northfield, Minnesota,
where Butler was admitted in 1883. To help pay
his college expenses, he worked in a local dairy.
He graduated from Carleton in 1887 with both a
bachelor of arts degree and a bachelor of science
degree.
After college, Butler moved to St. Paul and
studied law at the firm of Pinch and Twohy. He
passed the Minnesota bar in 1888 and established
a law practice with an associate, Stan
Donnelly. In 1891, Butler became assistant to the
county attorney for Ramsey County, and in 1893
and 1895 he was elected, as a Democrat, to the
office of county attorney, the only elective public
office he ever held.While in office, he secured
more criminal convictions than any county
attorney had done before. Butler ran for the
state senate in 1906 but was narrowly defeated.
In 1908, he was elected president of the Minnesota
State Bar Association. In St. Paul, Butler
also met his future wife,Annie Cronin, whom he
married in 1891. The couple had eight children.
In 1893, Butler helped establish a St. Paul law
firm that evolved into Butler, Mitchell, and
Doherty, one of the most successful corporate
law firms of its time in what was then called the
Northwest. The firm had several railroads as its
major clients, including those of James J. Hill, one of the great rail barons. During his career,
Butler earned a reputation as the foremost railroad
lawyer in the Northwest. His work in railroad
litigation eventually brought him to
national attention, and allowed him to become
friendly with President WILLIAM HOWARD TAFT,
who served on the Supreme Court as chief justice
from 1921 to 1930 and was later instrumental
in securing Butler’s nomination to the Court.
On November 23, 1922, President WARREN
G. HARDING nominated Butler to succeed retiring
justice WILLIAM R. DAY on the Supreme
Court. Although Butler was a Democrat, the
Republican Harding approved of his laissez-faire
economic philosophy and conservative social
views. Harding also believed that it would be
politically astute to nominate the Roman
Catholic Butler to the Court. The last Roman
Catholic to serve on the Court had been
replaced by Taft in 1921.
Butler’s nomination caused a great outcry in
liberal circles, particularly from Senators
GEORGE W. NORRIS and ROBERT M. LA FOLLETTE,
and senator-elect Henrik Shipstead, of
Minnesota. They pointed to Butler’s ties to big
business during his legal career, claiming that
these would bias his decisions on the bench.
They also objected to Butler’s actions as a regent
of the University of Minnesota, a position he
held from 1907 to 1924. Butler, they argued, had
used his influence to have several faculty members
dismissed. Despite the objections of La Follette
and others, the SENATE JUDICIARY
COMMITTEE unanimously confirmed Butler’s
nomination on December 13, 1922. On January
2, 1923, the Senate appointed Butler to the
Court by a vote of 61–8.
While serving on the Court, Butler fulfilled
predictions that he would become a pillar of conservatism.
Butler often voted with three other
conservatives, Justices JAMES C. MCREYNOLDS,
GEORGE SUTHERLAND, and WILLIS VAN DEVANTER,
himself a former railroad lawyer. Because
they consistently voted as a conservative bloc,
observers nicknamed this group the Four
Horsemen.
Butler’s conservatism manifested itself particularly
in his emphasis on limiting the power
of government. For example, he voted whenever
possible against state and federal taxes. In
Coolidge v. Long, 282 U.S. 582, 51 S. Ct. 306, 75
L. Ed. 562 (1931), writing the Court’s opinion,
Butler argued that a state inheritance tax was
unconstitutional because it violated the Due
Process Clause of the FOURTEENTH AMENDMENT,
which proclaims that the state shall not
deprive a person of liberty without DUE
PROCESS OF LAW.
Butler also consistently argued against the
rights of government to regulate prices, particularly
through his narrow interpretation of the
phrase “business affected with a public interest.”
At the time, it was common for governments,
when they sought to regulate prices charged by
businesses, to argue that certain industries had
more of the public interest involved in their
affairs than others; businesses that were affected
with a public interest could therefore be regulated
by the government. In Wolff Packing Co. v.
Court of Industrial Relations, 262 U.S. 522, 43 S.
Ct. 630, 67 L. Ed. 1103 (1923), Butler voted with
the Court in deciding that the packing industry
was not affected with a public interest and therefore
could not be made subject to price-control
legislation. Butler and the Court made the same
decision with regard to employment agencies in
Ribnik v.McBride, 277 U.S. 350, 48 S. Ct. 545, 72
L. Ed. 913 (1928). In both Wolff and Ribnik, the
Court found that the laws under consideration
violated the Due Process Clause of the Fourteenth
Amendment. In Nebbia v. New York, 291
U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940 (1934),
when an increasingly liberal Court decided to do
without the phrase “affected with a public interest”
in making its decision and ruled that the
state may regulate milk prices, Butler, along with
the rest of the Four Horsemen, dissented. This
was just one of many dissents Butler and his
conservative colleagues would make during the
1930s.
Butler’s opinions in the area of civil liberties
are less easy to categorize. He argued persuasively
for the rights of those accused of crimes,
arguing in one opinion, “Abhorrence, however
great, of persistent and menacing crime will not
excuse transgression in the courts of the legal
rights of the worst offenders.” He opposed
national PROHIBITION and criticized federal
agents several times for violating the FOURTH
AMENDMENT in their SEARCHES AND SEIZURES.
In a case involving WIRE TAPPING by Prohibition
agents, OLMSTEAD V. UNITED STATES, 277 U.S.
438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), Butler
found himself in the unusual company of the
more liberal justices LOUIS D. BRANDEIS, HARLAN
F. STONE, and Holmes. In his dissenting
opinion, Butler argued that during the transmission
of messages, the exclusive use of any wire belonged to the persons served by it. Law
enforcement wiretapping therefore constituted
an illegal search for evidence. In Aldridge v.
United States, 283 U.S. 308, 51 S. Ct. 470, 75 L.
Ed. 1054 (1931), Butler voted with the majority
in holding that an African American being tried
for the murder of a white man was entitled to
have the prospective jurors asked whether they
had a racial prejudice that would prevent a fair
trial. Butler also supported the rights of DISABLED
PERSONS, casting a lone dissenting vote,
without opinion, in BUCK V. BELL, 274 U.S. 200,
47 S. Ct. 584, 71 L. Ed. 1000 (1927), which
upheld a 1924 Virginia law allowing for the sterilization
of mentally handicapped individuals.
When it came to the civil liberties and FREEDOM
OF SPEECH of those in society with radical
or dissenting opinions, Butler was less understanding.
Ironically, Butler’s dissenting opinions
in many of these matters undermined the rights
for dissent in the larger society. In his dissent
against the majority opinion in Stromberg v. California,
283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117
(1931), Butler considered lawful the conviction
of a young woman found guilty of displaying a
red flag in public. The California law under consideration,
Cal. Penal Code § 403a, made it a
felony to display a red flag as “an emblem of
opposition to organized government” or “an
invitation . . . to anarchistic action.” In United
States v. Schwimmer, 279 U.S. 644, 49 S. Ct. 448,
73 L. Ed. 889 (1929), Butler wrote the opinion
for a majority of six upholding the denial of citizenship
to the sixty-year-old Rosika Schwimmer.
In her petition for citizenship, Schwimmer
had specifically stated that she would refuse to
take up arms for the state in any possible circumstances.
Writing the Court’s opinion, Butler
interpreted her statement as opposition to the
entire Constitution and therefore the laws of the
country: “Taken as a whole it shows that her
objection to military service rests on reasons
other than mere inability because of her sex and
age personally to bear arms . . . [S]he may be
opposed to the use of military force as contemplated
by our Constitution and laws.” Butler dissented
from the Court’s decision again in Hague
v. Committee of Industrial Organizations, 307
U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939),
where he argued for the legality of a city ordinance
regulating labor meetings in city parks.
In CIVIL RIGHTS and racial issues, Butler
resisted changes in established interpretations of
the Constitution. In the 1930s, when the Court
became more liberal and more actively sought to
strike down state laws—particularly racially discriminatory
laws—it considered unconstitutional,
Butler argued that the Court had
overstepped its bounds and that state legislatures
were the best judges of what was best for
their citizens. In the 1932 decision POWELL V.
ALABAMA, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158,
the High Court dealt with the Scottsboro case,
involving African American men who had been
convicted in 1931 in Scottsboro, Alabama, of
raping two white women. The Court held that
the accused men had been deprived of the right
of counsel and had therefore been denied due
process as guaranteed by the Fourteenth
Amendment. Butler’s dissenting opinion argued
that no denial of due process had occurred and
that the Court’s decision was an unwarranted
“extension of federal authority in a field hitherto
occupied exclusively by the several states.” In a
1938 case involving an African American denied
access to law school by the state of Missouri, Butler’s dissenting opinion argued for the constitutionality
of the state’s action (Missouri ex
rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232,
83 L. Ed. 208).
Butler also dissented in several decisions in
the 1930s in which the Court struck down JIM
CROW LAWS that kept African Americans from
voting. In Breedlove v. Suttles, 302 U.S. 277, 58 S.
Ct. 205, 82 L. Ed. 252 (1937), Butler argued that
a poll tax (a tax charged to voters at the time
they cast their votes) did not violate the Fourteenth
Amendment, and in Lane v. Wilson, 307
U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281 (1939),
Butler disagreed with the majority’s decision to
strike down an Oklahoma law that made it difficult
for African Americans to register to vote.
Butler and his conservative colleagues also
opposed Franklin D. Roosevelt’s New Deal social
WELFARE legislation. In his last three terms in
office, Butler dissented in seventy-three cases—
constituting more than half of the total dissents
in his seventeen-year career on the Supreme
Court. He dissented in Helvering v. Davis, 301
U.S. 619, 57 S. Ct. 904, 81 L. Ed. 1307 (1937), in
which the Court upheld the government’s right
to tax employers and employees to create pensions
through the SOCIAL SECURITY ACT OF
1935, 42 U.S.C.A. § 401 et seq. “The Constitution,”
Butler wrote in his dissent, “grants to the
United States no power to pay unemployed persons
or to require the states to enact laws . . . for
that purpose.” Butler wrote the Court’s opinion
in Morehead v. New York ex rel. Tipaldo, 299 U.S.
619, 57 S. Ct. 4, 81 L. Ed. 456 (1936), which supported
an earlier decision to strike down a MINIMUM
WAGE law for women.
Butler died of a bladder ailment on November
16, 1939, in Washington, D.C., at age seventy-
three. During his tenure, he wrote 323
majority opinions, forty-four dissenting opinions,
and three concurring opinions. Butler
clung to his dated ideals, even in a world that
was fast finding fault with them.As one observer
wrote after Butler’s death, “he did not change as
the frontiers changed; and perhaps this quality
of steadfast resistance to a different world was
what Justice Holmes had in mind when he spoke
of him as a ‘monolith.’ ”
FURTHER READINGS
Brown, Francis J. 1945. “The Social and Economic Philosophy
of Pierce Butler.” In Catholic University of America
Studies in Sociology. Vol. 8. Washington, D.C.: Catholic
Univ. of America Press. Dissertation, Catholic University.
Burner, David. 1969. “Pierce Butler.” In The Justices of the
United States Supreme Court, 1789–1969: Their Lives
and Major Opinions, ed. Leon Friedman and Fred L.
Israel. New York: Chelsea House.
Christianson, Theodore. 1935. Minnesota: A History.
Chicago: American Historical Society.
Congressional Quarterly. 1989. Guide to the U.S. Supreme
Court.Washington, D.C.: Congressional Quarterly.
Danielski, David J. 1964. A Supreme Court Justice Is
Appointed. New York: Random House.
Frank, John P. 1940. The Confirmation of Pierce Butler. M.A.
thesis, University of Wisconsin.
Reilly, William. 1993. “Pierce Butler.” In The Supreme Court
Justices: Illustrated Biographies, 1789–1993; ed. Claire
Cushman.Washington, D.C.: Congressional Quarterly.
U.S. Supreme Court. 1940. Proceedings of the Bar and Officers
of the Supreme Court of the United States in Memory of
Pierce Butler (January 27).