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Justice Rutledge participated in 844 cases.
Joined with Majority603
Concurring in Judgment36
Did Not Participate43
Judgment of the Court1

Rutledge, Wiley Blount Jr.

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Birth: July 20, 1894, Cloverport, Kentucky.

Education: University of Wisconsin, A.B., 1914; University of Colorado, LL.B., 1922.

Official Positions: Judge, U.S. Court of Appeals for the District of Columbia Circuit, 1939–1943.

Supreme Court Service: Nominated associate justice by President Franklin D. Roosevelt, January 11, 1943, to replace James F. Byrnes, who had resigned; confirmed by the Senate, February 8, 1943, by a voice vote; took judicial oath February 15, 1943; served until September 10, 1949; replaced by Sherman Minton, nominated by President Harry S. Truman.

Death: September 10, 1949, York, Maine.

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Wiley Blount Rutledge Jr.
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Wiley Blount Rutledge Jr.

Wiley Rutledge was the last of eight justices Franklin D. Roosevelt appointed to the Supreme Court and one of the most forward-thinking proponents of civil liberties and civil rights in the Court's history. With his colleague Frank Murphy, Rutledge was, on these issues, to the “left” of two other liberals on the Court at the time, Hugo Black and William O. Douglas. Rutledge served only six-and-a-half years; he died suddenly in 1949 at age fifty-five after a cerebral hemorrhage. But while he was there, he was the “conscience of the Court” among justices who, in addition to Black and Douglas, had become long-tenured giants: Harlan Fiske Stone, Felix Frankfurter, and Robert Jackson. Rutledge is best remembered as a dissenter who spoke to the future with a prophetic voice. So who was Wiley Rutledge, how did he get to the Court, and what did he accomplish there?

FDR once exclaimed to Rutledge, “Wiley, you have a lot of geography!” And indeed he did. He was born in small-town Kentucky, grew up in Tennessee, graduated from college at Wisconsin, began law school at Indiana, came down with tuberculosis and found treatment in North Carolina, got married and “chased the cure” while teaching high school in New Mexico, finished law school in Colorado, and briefly practiced and taught law in Boulder until he joined the law faculty, and eventually became dean, at Washington University in St. Louis. In 1935 he assumed the deanship of the University of Iowa College of Law.

The son of a Baptist preacher, Rutledge lost his mother to tuberculosis when he was nine and eventually learned that he might die of the disease himself. Rather than feeling sorry for himself, however, he developed a deep concern for others at the sanatorium worse off than he and, when he recovered, emerged as man of great empathy. As a young southerner, Rutledge had his share of racial prejudice. But he eventually outgrew it, influenced by his wife from Michigan, Annabel Person, who had been his Greek teacher at Maryville College in Tennessee, which he had attended before the University of Wisconsin. Religion was significant in Rutledge's life. From a Southern Baptist he became a Christian humanist, akin to a Unitarian, and focused on meeting human needs.

Politically, Rutledge was always a Democrat and, as early as his college years, stressed the rights of individuals over the demands of majorities. In St. Louis, Rutledge became a very public liberal, seeking reform of the criminal justice system and campaigning against the abuses of child labor and the power of public utility holding companies. In Iowa, he was particularly supportive of African American, Jewish, and female students. He urged support of legal aid to the poor and warned the legal profession against monopolizing services that laypersons could offer just as well at less cost. In 1937 Rutledge was one of the few law deans in the country to support FDR's “Court-packing” plan.

Largely because of efforts by Irving Brant, an editor of the St. Louis Star-Times and long-time friend of FDR, Rutledge—whom the president had never met—had been the runner-up each time in 1939 when Roosevelt named two of his friends, Frankfurter and Douglas, to the Supreme Court. Instead, Roosevelt appointed Rutledge to the U.S. Court of Appeals for the District of Columbia Circuit and, four years later, nominated him to the Supreme Court when Justice James F. Byrnes resigned.

Rutledge joined the Court, at age forty-eight, with an established jurisprudence and approach to decision making. He saw the Constitution, with its general terms such as “due process” and “commerce,” as a flexible document adaptable to the needs of a changing society much like the evolution of the common law. As a legal realist, he freely acknowledged that in the difficult cases, where text, legislative history, and precedent supply no clear answer—and the opinion could be written coherently with different outcomes—every judge's values become part of the decision. The real dichotomy is not between activism and restraint, he believed, but between one judge's values and another's. As a man influenced by the sociological jurisprudence of Harvard Law School dean Roscoe Pound and the writings of Louis Brandeis, his values favored protection of the individual, the ordinary worker, and small business.

When Rutledge took his seat in February 1943, the Court still adhered to Justice Benjamin Cardozo's opinion in Palko v. Connecticut (1937), ruling that although the entire Bill of Rights applied in federal court, only a select few amendments were available in state courts, namely those “implicit in the ‘concept of ordered liberty’”—more specifically, those “‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Palko's formulation was reaffirmed, 5–4, in Adamson v. California (1947). Rutledge was among the four dissenters, who said that the entire Bill of Rights was incorporated in the Fourteenth Amendment and therefore applied in full in state courts. But Rutledge and Murphy went further than the other two dissenters, Black and Douglas, who had concluded that the Fourteenth Amendment incorporated the Bill of Rights and no more. Rutledge joined Murphy's dissent suggesting that the Fourteenth Amendment might well guarantee additional rights—a telling observation as evidenced, for example, by the Court's eventual recognition of the right to privacy in Griswold v. Connecticut (1965).

Two years after Adamson, the Court held in Wolf v. Colorado (1949) that the Fourth Amendment protection against unreasonable searches and seizures was “implicit in the concept of ordered liberty” and therefore applicable to the states. But a majority, including Black, also agreed that the “exclusionary rule,” barring admission of unlawfully seized evidence in federal court, was a mere evidentiary limitation that a legislature could negate, not a core protection of the Fourth Amendment. In dissent, Rutledge argued that the rule itself was inherent in the Fourth Amendment and so applicable in state courts through the Fourteenth. His view prevailed twelve years later in Mapp v. Ohio (1961) with the support of Black, who acknowledged that the “force” of Rutledge's dissent in Wolf had “become compelling.”

A majority of the justices in the 1940s would not incorporate the Sixth Amendment right to counsel into the Fourteenth Amendment, but Rutledge pressed hard nevertheless in Canizio v. New York (1946) and in Foster v. Illinois (1947) and Gayes v. New York (1947), usually in dissent, to expand the right to counsel in state criminal proceedings as a matter of due process. Rutledge was particularly distressed in Foster, in which the Court held 5–4 that even though state law entitled the indigent defendant to a free lawyer, due process was not violated when the state failed to inform the defendant of that right and he entered a guilty plea without legal advice.

Rutledge also perceived other violations of due process in state courts. For example, Illinois appellate procedure for exhausting state remedies—as required before seeking federal court review of a state criminal conviction—was so byzantine, and tripped up so many petitioners, that Rutledge, in Marino v. Ragen (1947), called for accepting every criminal case presented to the Court from Illinois until the state changed its procedure. A year and a half later, the Court followed Rutledge's advice in Young v. Ragen (1949), and Illinois soon changed its ways.

Rutledge sided with criminal defendants 80 percent of the time compared to the Court's 52 percent during his tenure. Especially when the death penalty was involved, Rutledge would construe an ambiguous statute against the government or grant the defendant a generous interpretation of due process. Or he would even invoke the Court's inherent supervisory power over the administration of criminal justice as he did while dissenting, for example, in Fisher v. United States (1946), in which the Court rejected a diminished capacity defense in a District of Columbia murder case, and Rutledge himself could not find a violation of due process. He even relied, in dissent, on the Court's supervisory power in a noncapital conspiracy case, Pinkerton v. United States (1946), because he was not willing to affirm conviction of a coconspirator for particular criminal acts underlying the conspiracy that the coconspirator had not known about. To do so would “fracture the spirit” of due process, he said, by carrying vicarious responsibility too far.

These also were the days of the Jehovah's Witness cases, when Rutledge helped form a new majority that struck down, under the free exercise of religion clause of the First Amendment, the tax on religious literature in two companion cases, Jones v. Opelika (1943) and Murdock v. Pennsylvania (1943), and invalidated the compulsory flag salute in public schools in West Virginia Board of Education v. Barnette (1943) (overruling Minersville School District v. Gobitis, 1940). In only one instance did Rutledge reject a free exercise defense. In writing for the majority in Prince v. Massachusetts (1944), another Jehovah's Witness case, Rutledge upheld a Massachusetts statute imposing criminal fines on adults who allowed children to distribute religious literature on the street—a statute Rutledge perceived as a child labor, not a free exercise, regulation.

As to the First Amendment's establishment clause, the Court has never had a stronger statement supporting separation of church and state than Rutledge's dissent in Everson v. Board of Education (1947), in which the Court upheld state-subsidized bus fares to Catholic schools. In the next term, in Illinois ex rel. McCollum v. Board of Education (1948), Black relied heavily on Rutledge's Everson dissent (as well as on his own majority opinion in Everson) to strike down a voluntary program of religious instruction during the school day on school premises. Years later, in his opinion invalidating a required school prayer, Engel v. Vitale (1962), Douglas, who had joined the majority in Everson, acknowledged that his task would have been easier if the majority had followed Rutledge in Everson, in which Rutledge had stated “durable First Amendment philosophy.”

Aside from Prince, Rutledge supported a First Amendment defense in every case in which it was raised, whether for religion, press, assembly, petition, or speech. In doing so, he wrote in Thomas v. Collins (1945) as forceful an opinion supporting free speech as the Court has yet produced. There, the Court reversed, 5–4, the criminal contempt conviction of a union organizer who had ignored a court order not to address a mass meeting without obtaining a state-required “organizer's card.” Frankfurter, in Kovacs v. Cooper (1949), criticized Rutledge's opinion as the most extreme statement yet written favoring a “preferred position” for First Amendment rights.

In dissent, Rutledge made the earliest pronouncements by a Supreme Court justice that discrimination based on gender and on poverty denied equal protection of the law. In Goesaert v. Cleary (1948), he found a denial of equal protection when the majority upheld a Michigan statute forbidding any female to tend bar unless she was the “wife or daughter of the male owner.” And in Foster v. Illinois, in addition to finding a due process violation, Rutledge concluded that the state's failure to provide counsel for an indigent defendant violated the equal protection clause because wealth and poverty would “make all the difference in securing the substance or only the shadow of constitutional protection.”

Rutledge also attacked discrimination based on blood line and race. In Kotch v. Board of River Port Pilot Commissioners (1947), he dissented from Black's opinion upholding a Louisiana system permitting a river pilots' association, required by law to guide Mississippi River boats near New Orleans, to choose all new pilots from among family and friends. And in Fisher v. Hurst (1948), he was the lone dissenter when the Court rejected Thurgood Marshall's petition for a writ of mandamus to compel Oklahoma's compliance with the Court's earlier mandate to provide the African American petitioner a legal education “as soon as it does for applicants of any other group.” Rutledge interpreted the mandate to mean that the law school must be shut down entirely unless the petitioner was admitted, not left open to second- and third-year students (no longer “applicants”) as the Oklahoma courts were allowing. Only in voting rights cases did Rutledge balk at an equal protection remedy. In Colegrove v. Green (1946) and MacDougall v. Green (1948), he joined colleagues who concluded that unequal voting districts and discriminatory signature requirements for getting a political party onto the ballot violated equal protection. But in each case, Rutledge withheld relief because he perceived that either proposed remedy—at-large election or last-minute access to the ballot—would create inequities of its own.

Rutledge was a major contributor to the Court's interpretation of the commerce clause. In a case of considerable notoriety, Michigan successfully prosecuted a charter boat company under the state's civil rights act for refusing to carry African American schoolchildren from Detroit to an amusement park on a Canadian island. In Bob-Lo Excursion Co. v. Michigan (1948), Rutledge wrote for a majority that upheld the conviction against a defense that the commerce clause, standing alone, forbade Michigan's interference with foreign commerce. In other, more common contexts, Rutledge's exhaustive concurring opinions on state taxation, Freeman v. Hewitt (1946) and Memphis Natural Gas Co. v. Stone (1948), and his majority opinion on coordinated regulation of commerce by Congress and the states, Prudential Insurance Co. v. Benjamin (1946), are the law today. When the Court considered a challenge to a statute expanding federal court “diversity” jurisdiction to include suits not only between citizens of different states, as specified in Article III of the Constitution, but also suits involving citizens of the District of Columbia and the territories, the Court upheld the statute, 5–4, in National Mutual Insurance Co. v. Tidewater Transfer Co. (1949). The majority cobbled together an opinion by Jackson, finding authority in the “District clause” (Article I, Section 8, clause 1), and an opinion by Rutledge, joined by Murphy, finding authority in Article III. Rutledge deemed the District of Columbia a state for this purpose, reflecting other instances, such as the Sixth Amendment right to a speedy criminal trial, where constitutional rights applicable to the states had been extended to the District of Columbia. Unlike the other justices, Rutledge and Murphy saw the availability of federal diversity jurisdiction as an access-to-justice (a civil rights) issue.

Rutledge was involved in most of the major decisions concerning World War II and its aftermath. In December 1944, when he had been on the Court less than two years, he joined the 6–3 majority in Korematsu v. United States (1944), which upheld the West Coast evacuation of 112,000 persons of Japanese ancestry, including 70,000 American citizens. He accepted “military necessity” based on threats of espionage and sabotage that were later proved untrue. He told his colleagues that he could perceive no principled distinction between that evacuation and the West Coast curfew, applied to the same population, which the Court had unanimously upheld a year earlier in Hirabayashi v. United States (1943). In short, he could find no basis for second-guessing the military—or his president—in wartime.

Rutledge is not known to have expressed regret about his vote in Korematsu during the short time he lived after he cast it, but he had anguished over what he felt he had to do, and all his votes after Korematsu on cases concerning the war went in the other direction, almost always in dissent. For example, Rutledge concluded that the naturalized citizenship of Nazi sympathizers and Communists could never be revoked (as permitted under the naturalization statute) for misrepresentation of loyalty to the United States before naturalization. It could be revoked, he said, only for actions “taking place afterward,” as could also happen to native-born Americans. He therefore dissented in Knauer v. United States (1946). Joined only by Murphy, Rutledge rejected “two classes of citizens, one superior, the other inferior” as if in “suspended animation” vulnerable to erasure. In another war-related dissent in Yakus v. United States (1944), Rutledge voted to declare unconstitutional a criminal price control statute that barred the accused from challenging the price ceilings while defending the accusation. Congress accepted Rutledge's analysis and amended the statute.

After the war, in United States v. United Mine Workers (1947), in which the prevailing justices relied on dubious precedent and questionable analysis, Rutledge voted to reverse the convictions of John L. Lewis and his union for criminal contempt of court in refusing to comply with a federal court order enjoining a national coal strike when President Harry S. Truman seized the mines. A year later, in Ahrens v. Clark (1948), Rutledge dissented from an opinion by Douglas, who rejected petitions for writs of habeas corpus by German nationals awaiting deportation from Ellis Island after hostilities had ceased. Douglas reasoned that the statute required the habeas petition to be filed in New York, where the prisoners were held, not in the District of Columbia, where the Ahrens petition had been filed. Rutledge stressed, to the contrary, that precedent called for filing the petition in a jurisdiction where the jailer could be found, which included the District of Columbia, home of the attorney general. Eventually, Ahrens was overruled: the Court's decision in Rasul v. Bush (2004)—holding that U.S. courts have jurisdiction over challenges to the legality of the detention of foreign nationals captured abroad while fighting for the Taliban and incarcerated at the U.S. Navy base at Guantánamo Bay, Cuba—is traceable to Rutledge's dissent in Ahrens.

In his most heralded opinion, In re Yamashita (1946), Rutledge dissented from the Court's deference to the military commission conviction of Lt. Gen. Tomoyuki Yamashita, the Japanese commander in the Philippines, who was sentenced to death for failure to prevent troops under his command from committing atrocities in Manila at the end of the war. Yamashita had been retreating with some of his forces more than 100 miles north of Manila, and, with communications in shambles, he claimed he did not know what his men were doing in Manila. No clear proof was found to contradict him. Rutledge concluded that in the absence of such knowledge, the general could not be held criminally responsible under the international law of war, a view adopted by military tribunals in Germany and elsewhere in the late 1940s, as well as in the U.S. Army Field Manual by 1956.

Rutledge also found violations of the Articles of War, the Geneva Convention, and Fifth Amendment due process. He rejected Chief Justice Stone's analysis for the majority, which held that the Geneva Convention applied only to prosecutions for offenses committed by prisoners of war while prisoners, not to alleged war crimes committed before capture. In 1949 the Geneva Convention was amended and eventually ratified by the U.S. Senate, adopting Rutledge's interpretation. As a result, the Geneva Convention now applies to prisoners of war charged with crimes committed before capture and grants them the same right to court-martial protection accorded members of the U.S. military. Significantly, if court-martial protection had been available to General Yamashita through the Articles of War or the Geneva Convention, as Rutledge had argued, that protection presumably would have satisfied due process. But Rutledge was dogged in his belief that the Fifth Amendment, as such, was also available to prisoners of war and that the Court should say so.

Rutledge's Yamashita dissent, along with Murphy's, had major impact. By preventing a unanimous Court in the first postwar trial by a military commission, Rutledge and Murphy offered lawyers and judges in upcoming war crimes trials credible and persuasive alternatives to the rules of law and procedure applied in Yamashita, alternatives that were eventually incorporated into U.S. military procedure and international treaty. The dissents also had a chastening impact on the press and the American public, as editorials reflected nationwide, and they energized the American liberal community to monitor the increasing number of war crimes trials around the world. And the dissents stood out as expressions of national conscience at a time when feelings of hate and revenge might otherwise have overwhelmed the nation.

Despite his vote in Korematsu, Rutledge was the “conscience of the Court” in the 1940s for three reasons. First, he characteristically insisted on due regard for the individual, pressing hard for expansive interpretation of the Bill of Rights. Second, he always gave principled, detailed reasons for his opinions based on meticulous examination of the facts; he would not twist the trial record for his own purposes. Third, because of the integrity of his elaborations, his colleagues took him very seriously, even in disagreement; he forced them to think more deeply than they otherwise might have. No other justice at the time exemplified all three of these attributes.

This period of great intellectual divide on the Court was also marked by an abundance of personal acrimony, perhaps the worst in the Court's history. Black and Jackson disliked and disrespected each other. The same was true of Frankfurter and Douglas. Justice Owen Roberts became upset with the Court's evolving jurisprudence and isolated himself, even refusing to shake hands before argument as was the custom. And several of Murphy's colleagues did not take him seriously. With the possible exception of Stone, only one justice—Wiley Rutledge—had both the intellectual and personal respect of all his colleagues. In a context of centrifugal forces, Rutledge was the Court's balance wheel. As the Court's most collegial member, he was a civilizing influence whose very presence called for integrity in the Court's work.

Because he served only six-and-a-half years, Rutledge's contribution necessarily was limited. He wrote only three significant majority opinions: Prince, Thomas, and Prudential Insurance. His impact as a justice—his opinions that helped reshape the law in the long run—came primarily in dissent or, occasionally, in a concurring opinion. For all the regard his colleagues accorded him, he was rarely asked to write a majority opinion in a close, highly contentious case. Writing was difficult for him; despite being an indefatigable worker, he took a long time to get his opinions done. And he often wrote opinions that were too long or too much like law review articles with material unnecessary to the decision to command a majority easily. He was assigned more than his share of the commercial and other less emotionally charged decisions where there was little disagreement.

In comparison with two highly regarded justices who had virtually the same length tenure as he did—Benjamin R. Curtis (1851–1857) and Benjamin Cardozo (1932–1938)—Rutledge never wrote a majority opinion with the precedential force of Curtis's in Cooley v. Board of Wardens (1851) or Cardozo's in Palko v. Connecticut (1937). On the other hand, numerous Rutledge dissents supplied significant momentum toward the Warren Court's virtually complete incorporation of the Bill of Rights, by way of Palko, in the Fourteenth Amendment. And although Curtis's contribution in Cooley facilitated regulation of interstate commerce by the states during a period of forty years when Congress declined to do so, Rutledge supplied the enduring rationale of Prudential Insurance for coordinating federal and state regulation of interstate commerce when both sovereigns had become active. Curtis's dissent in Dred Scott v. Sandford (1957) was one for the ages; but Rutledge's dissent in Yamashita was a courageous act as well, launching more enlightened standards of justice, international as well as national.

Ultimately, the story of Wiley Rutledge is the story of his genuine regard for all people, regardless of station. His friend Willard Wirtz, a law professor who later became secretary of labor, observed: “Wiley Rutledge, above almost all others, loved people and respected his fellow men. This was the quality of his great personal attraction and it was the core of his reputed liberalism.” Referring to Rutledge, Hugo Black Jr. said: “I think he very well could have enlarged my father's heart.” And a former law clerk of Justice Douglas from the 1940s, after a lifetime in the law, remarked: “If I were a defendant being tried by a single judge, I'd rather have Justice Rutledge than any judge I have known.” Rutledge, in sum, was a hardworking, principled justice memorable for his rare combination of mind and heart.


The most comprehensive study of Justice Rutledge and his role on the Stone and Vinson Courts is John M. Ferren, Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge (2004). An earlier biography, Fowler V. Harper, Justice Rutledge and the Bright Constellation (1965), focuses less on his life than on legal developments on the Court during his tenure. Important insights about Rutledge are found in essays by two of his law clerks: Louis H. Pollak, “Wiley Blount Rutledge: Profile of a Judge,” in R. D. Rotunda, ed., Six Justices on Civil Rights (1983), 177; and John Paul Stevens, “Mr. Justice Rutledge,” in A. Dunham and P. Kurland, eds., Mr. Justice (1958), 177.

A year after Rutledge died, two law reviews simultaneously published the same collection of articles, written in his honor by colleagues, law clerks, and other friends, covering his character as a person and a judge, as well as his contributions as a justice in specified areas, such as the commerce power and civil liberties: “A Symposium to the Memory of Wiley B. Rutledge (1894–1949),” Indiana Law Journal 25 (1950) and Iowa Law Review 35 (1950). A useful contemporary study is David M. Levitan, “Mr. Justice Rutledge,” Virginia Law Review 34 (1948): (part 1), 393; (part 2), 526. Of the various publications by Rutledge himself, the most compelling may be a series of three lectures he gave at the University of Kansas in 1946 and published as Wiley Rutledge, A Declaration of Legal Faith (1947).

Noteworthy Opinions

Prince v. Massachusetts, 321 U.S. 158 (1944)

Thomas v. Collins, 323 U.S. 516 (1945)

In re Yamashita, 327 U.S. 1 (1946) (Dissent)

Prudential Insurance Co. v. Benjamin, 328 U.S. 408 (1946)

Knauer v. United States, 328 U.S. 654 (1946)

Everson v. Board of Education, 330 U.S. 1 (1948) (Dissent)

Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28 (1948)

Wolf v. Colorado, 338 U.S. 25 (1949)


Document Citation
Rutledge, Wiley Blount Jr., in Biographical Encyclopedia of the Supreme Court 442 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18169-979501
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