George Sutherland Legacy

Not many Utahns are familiar with George Sutherland and yet all of us should be familiar with this homegrown American treasure. He is arguably one of the most consequential and influential political figures to ever come out of Utah. The lives of all Americans have been touched in some respect because of his dedicated public service and sharp legal intellect.

Sutherland grew up in Springville in Utah County and graduated from the Brigham Young Academy. After receiving a law degree from the University of Michigan, he returned to Provo to practice law, unsuccessfully ran for mayor and for territorial delegate to Congress. After Utah statehood, Sutherland served in the Utah Senate, the United States House of Representatives (1901-03) and the United States Senate (1905-17). In 1919, while serving as an advisor to President Warren G. Harding, Sutherland authored the book Constitutional Power and World Affairs.

He was never easy to pigeonhole. A Republican and a non-Mormon, he can be described easily and fairly as a political conservative, yet championed many progressive reforms of his day, including women’s suffrage. But perhaps George Sutherland is best known for his appointment to the United States Supreme Court in 1922, the only such appointment of a Utahn to date. He is forever Justice Sutherland.

Justice Sutherland wrote for the majority of the Court in the controversial “Scottsboro Case.” The 1931 incident centered on nine black youths who were indicted in Scottsboro, Alabama for having raped two white women. All nine youths were found guilty and sentenced for up to 99 years in prison. A Court majority, led by Justice Sutherland, reversed the convictions on the grounds that the young men were denied the right to counsel and that a jury of their peers was not present (no blacks served on the juries involved). Some years later all nine were exonerated as one of the alleged victims recanted her testimony.

Sutherland’s focus in Scottsboro contrasts this broad scope in the 1936 case Curtiss-Wright Export Corp. v. United States, a case involving illegal arms sales to a foreign power. Justice Sutherland found that the executive branch of our federal government held certain powers not only separate but independent of the legislative branch. The case arose as a challenge to the delegation of power from Congress to the president with regard to foreign relations.

One of the Four Horsemen, liberals of his day disdained him and ridiculed him for opposing all of Franklin Roosevelt’s New Deal programs as unconstitutional. And yet conservatives of our day, jurists such as Bork, Scalia, and Rehnquist, also routinely chastise his many Court opinions for grounding his more “liberal” opinions in the very same logic he used in opposing FDRs socialist policies. At the source of this even-handed rancor was his support and development of the legal doctrine of substantive due process.