George Sutherland

While we wait around for the Supreme Court to dispense its annual dose of summer wisdom, here’s a random observation. In my research, I’m often struck by the excellence of Justice Sutherland’s opinions.  Though people can (and most do) disagree with his assumptions, Sutherland’s writings are models of clarity and rhetorical power.  Consider some examples:

1.   Adkins provides the best discussion of the “liberty of contract” doctrine that you see in the United States Reports.

2.  Carter Coal is a tour-de-force for those who support a more limited reading of the Commerce Clause.

3.  Powell is one of the Court’s most powerful civil rights cases.

4.  Grosjean is one the finest discussions of freedom of the press.

5.  Sutherland’s dissent in Blaisdell is the most persuasive defense of originalism that you see in an opinion.

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5 Responses

  1. Dan Cole says:

    What about his anti-originalist argument in Ambler Realty?

  2. Shag from Brookline says:

    Current day originalists have challenged claims that Sutherland was a more modern “father” of originalism than Ed Meese or Robert Bork.

  3. Shag from Brookline says:

    @ Dan Cole:

    Is there an originalist argument against Ambler Realty?

  4. Joe says:

    I think the key issue is this section:

    “Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.”

    Sutherland apparently thought the Contract Clause had a “meaning” that could not be properly “applied” even with the new conditions. The majority however appealed to originalism at times too, citing Justice Johnson:

    “But to assign to contracts, universally, a literal purport, and to exact for them a rigid literal fulfillment could not have been the intent of the constitution.”

    It argued that court doctrine “reserved the essential content and the spirit of the Constitution” and faithfully applied the principles of said “intent” by not applying the clause literally. It might be that the debate is over not originalism but what the actual original understanding entailed.

  5. Joe says:

    For those who might be confused, the first part of my comment is a long excerpt from Sutherland’s Village of Euclid v. Ambler Realty Co. ruling. A zoning case.

    Then, I talked about Home Building & Loan Association v. Blaisdell, a Contract Clause case, where Sutherland dissented.