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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

R, Rutledge, Wiley Blount, Jr.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 04 June 2020

Rutledge, Wiley Blount, Jr.

(b. Cloverport, Ky., 20 July 1894; d. York, Maine, 10 Sep. 1949; interred Green Mountain Cemetery, Boulder, Colo.), associate justice, 1943–1949. Wiley Rutledge, the last of Franklin D. *Roosevelt’s Court appointments, received his B.A. from the University of Wisconsin in 1914 and spent his early years as a high school teacher in Indiana, New Mexico, and Colorado. A law degree from the University of Colorado in 1922 was followed by two years of private practice. For the next fifteen years, he taught law as an associate professor at the University of Colorado and as professor and dean first at Washington University in St. Louis and then at the State University of Iowa.

Wiley Blount Rutledge, Jr.

Rutledge’s vocal criticism of anti-New Deal Supreme Court decisions and his support for FDR’s *court-packing plan brought him national attention. In 1939, he was suggested for two Supreme Court vacancies, but the president chose William O. *Douglas and Felix *Frankfurter and then appointed Rutledge to the prestigious District of Columbia circuit. As an appellate court judge, his opinions consistently reflected New Deal constitutional legal perspectives. When James F. *Byrnes retired from the Court in 1942, FDR, in spite of Frankfurter’s energetic support of Learned *Hand, chose Rutledge.

During his six-year tenure, Rutledge wrote significant opinions in the areas of administrative law, National Labor Relations Board v. Hearst Publications (1944); civil procedure, Guaranty Trust v. York (1945); labor law, Elgin, Joliet & Eastern Railway v. Burley (1946) and United States v. *United Mine Workers (1947); and tax law, United States v. Massachusetts (1948). Yet his most enduring contribution was his participation in the development of constitutional doctrine in the areas of freedom of speech and religion.

When Rutledge joined the court, it had begun to recognize a constitutional double standard. In United States v. Carolene Products (1938), Justice Stone had suggested that restrictions on *First Amendment freedoms would be subject to more exacting judicial scrutiny than government economic regulation (see footnote four). Then in his Jones v. Opelika (1942) dissent, joined by (p. 878) Justices Black, Douglas, and Frank Murphy, Stone, by then chief justice, explicitly embraced this position. When Rutledge joined the court, he provided the fifth vote for Douglas’s opinion in *Murdock v. Pennsylvania (1943), which overruled Opelika and struck down on preferred freedom grounds a license fee imposed on the peddlers of religious materials.

Rutledge’s contribution to fundamental rights analysis came in Thomas v. Collins (1945). His opinion for the Court provided the clearest exposition of the preferred position doctrine in condemning a state license requirement as a violation of *labor organizers’ First Amendment rights. In Kovacs v. Cooper (1949), he defended the doctrine against Frankfurter’s claim that it was an exercise in mechanical jurisprudence that automatically condemned government regulation. Rutledge knew otherwise. When he joined Black’s opinion in *Korematsu v. United States (1944) and authored the court’s opinion in Prince v. Massachusetts (1944), he had acknowledged that preferred freedoms were not beyond the reach of government when its interests in national security and the general *welfare were compelling.

“Mr. Justice Rutledge,” symposium in Iowa Law Review 35 (Summer 1950): 541–699.

William Crawford Green