Although Wiley B. Rutledge (1894-1949) served on the U.S. Supreme Court only from 1943 to 1949, he was a major supporter of civil rights and liberties and especially First Amendment freedoms.
Rutledge was born in Cloverpoint, Kentucky, and educated at Maryville College in Tennessee and at the University of Wisconsin at Madison before earning his law degree at the Indiana University Maurer School of Law. He subsequently assumed a number of academic positions in law schools, where he became known for advocating progressive causes, including Franklin Roosevelt’s court-packing plan.
Rutledge applied stricter scrutiny to law impinging on civil liberties
Franklin D. Roosevelt appointed Rutledge to the Court of Appeals for the District of Columbia, where he served from 1939 to 1943. While he was on that court, Rutledge wrote a decision in National Broadcasting Co. v. FCC, 132 F.2d 545 (U.S. D.C., 1943) where he allowed for parties suffering non-financial injuries to intervene in commercial licensing proceedings.
Rutledge was Roosevelt’s last appointment to the U.S. Supreme Court. He replaced Justice James F. Byrnes, who had resigned.
Initially faced with judicial invalidation of many of his New Deal Programs, Roosevelt eventually had the opportunity to appoint justices who gave the national government relatively wide leeway in enacting social and economic policies. Although justices like James Byrnes and Felix Frankfurter were also fairly deferential to laws restricting First Amendment freedoms, Rutledge more frequently joined Justices like Chief Justice Harlan Fiske Stone, Hugo Black, William O. Douglas and Francis Murphy who applied stricter scrutiny to laws impinging on civil rights and liberties, especially those outlined in the First Amendment.
Rutledge opposed licensing fees for selling literature
While serving on the D.C. Circuit Court, Rutledge had dissented from the decision in Busey v. District of Columbia, 129 F.2d 24, 38 (D.C. Cir. 1942), that had upheld the conviction of another Jehovah’s Witness who had sold literature without paying a license tax (Ferren 2004, 190).
Shortly after joining the U.S. Supreme Court, Rutledge joined a decision in Jones v. City of Opelika (1943) repudiating the court’s earlier opinion in a case by the same name, which had upheld a licensing requirement for Jehovah’s Witnesses canvassing from door to door, and in Murdock v. Pennsylvania, which did the same.
Reflecting his progressive political stances against child labor, however, Rutledge authored the majority opinion in Prince v. Massachusetts (1944) upholding a Massachusetts law prohibiting boys younger than age 12 and girls younger than 18 from selling religious literature in public places.
Rutledge decisions on flag saluting, disorderly conduct and Hatch Act
In West Virginia State Board of Education v. Barnette (1943), Rutledge joined Justice Robert Jackson’s 6-to-3 decision striking down Minersville School District v. Gobitis (1940) and ruling that the children of Jehovah’s Witnesses could not be required to salute the American flag in public school classrooms. Rutledge had previously criticized the Minersville decision when he had accepted an honorary degree from the University of Colorado in June of 1940 (Ferren 2004, 188).
In Terminiello v. Chicago (1949), Rutledge joined Justice Douglas’ 5-4 decision striking down a disorderly conduct conviction of a Roman Catholic priest who had been convicted of making inflammatory comments.
Rutledge joined dissents from opinions in United Public Workers. v. Mitchell (1947) and Oklahoma v. United States Civil Service Comm’n (1947) questioning the Hatch Act, which limited positions in political campaigns on the part of public employees.
Rutledge’s contributions to First Amendment doctrine
In Thomas v. Collins (1945), which overturned a conviction for criminal contempt by a union organizer, Rutledge announced that First Amendment freedoms were in a “preferred position” that required special solicitude by the court. Rutledge’s biographer also observes that “Rutledge’s opinion in Thomas was the Court’s first explication of what later became known as the ‘chilling effect’ analysis” (Ferren 2004, 270).
In similar fashion, in Kovac v. Cooper (1949) Rutledge was one of four dissenters from a decision that had upheld the conviction of a man who had used a sound truck on city streets. Arguing that the law had been too vague, Rutledge also sparred with Felix Frankfurter who was intent on opposing the idea that First Amendment freedoms occupies a preferred position.
In Musser v. Utah, 333 U.S. 95 (1948), Rutledge wrote a dissent, joined by justices Douglas and Murphy, in a case that the court had remanded to Utah that had punished an individual for advocating polygamous, or plural, marriage. Rutledge argued that there was sufficient evidence to establish that the law in question had not clearly distinguished between “direct and personalized activity amounting to incitation to commit a crime” from mere advocacy of polygamy, particularly in a religious setting.
Rutledge supported separation of church and state
On issues involving the establishment clause of the First Amendment, Rutledge, a Unitarian son of a Baptist minister, was particularly influenced by the writing of James Madison about whom Rutledge’s friend Irving Brant, had authored a five-volume biography.
In Everson v. Board of Education (1947), Rutledge, quoting from Madison’s Memorial and Remonstrance, which he attached as an appendix, dissented from the majority opinion, which had allowed for the provision of bus transportation to students attending parochial schools. Rutledge observed that “Not simply an established church, but any law respecting an establishment of religion, is forbidden. The Amendment was broadly, but not loosely, phrased.”
Rutledge argued that the object of the First Amendment had been “not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such had prevailed in England and some of the colonies,” but “to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.”
In a similar vein, Rutledge joined a concurring opinion in McCollum v. Board of Education (1948), striking down a released time program that permitted the use of public schools for religious instruction.
Contribution to the Supreme Court
When Rutledge died in 1949, President Harry Truman replaced him with Sherman Minton who was a more conservative justice.
Rutledge’s biographer has observed that, although Rutledge remains less known for his contributions because of his short term on the Supreme Court:
The Court of the 1940s had no stronger advocate for free speech and other First Amendment rights than Wiley Rutledge; no more thoughtful student of the commerce clause; no more consistent supporter of access to the courts; and, but for reluctance about remedy as to voting rights, no more expansive thinker about equal protection—including virtually the earliest expression of a Court member’s concerns about discrimination based on gender and poverty in addition to race” (Ferren 2004, 419).
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.