<i>Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge</i>

"A dissenter," "wholesome," and "emphatic" were some of the words used to describe Supreme Court Justice Wiley Rutledge during the Division of United States Studies program featuring John Ferren's Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge. The book is the first full-length biography of Justice Rutledge, who was the last of 8 justices appointed to the Supreme Court by President Franklin D. Roosevelt (1943) and who died suddenly in 1949 at the age of 55. While his colleagues William O. Douglas, Felix Frankfurter and Hugo Black have been the subjects of numerous biographies, Justice Rutledge's contribution to the Court is little known today. That, Judge Ferren believes, is unfortunate, as Rutledge served to balance the Court during the stressful war years, helping to mitigate the ideological divisions among the justices and bringing to the Court a unique concern for the rights of the individual.

According to Ferren, Rutledge's considerable conscience was developed in part by the bout of tuberculosis he suffered when he was nineteen. During the year he spent in a sanatorium, Rutledge came to empathize with the plight of others and to appreciate the importance of caring about them. Religion was a central influence on his life, and Rutledge believed that God enjoined all human beings to help address human needs. His concern for all people was further sharpened by his wife, a former teacher of his at Maryville College in Tennessee, who challenged the young Southerner's prejudices. Rutledge, Ferren argued, became a man who firmly believed in defending the inalienable rights of individuals. In his pre-Court career as a law professor and dean, he took a strong stand against prejudices against African Americans, Jews, and women.

Ferren described Rutledge as ahead of his time in his support for women and legal representation for the poor. He supported his daughter's law school aspirations and encouraged his female secretary to take classes for professional improvement. He spoke at Bryn Mawr in 1948 about a woman's right to equal pay for equal work and in 1942, long before legal aid came into existence, he lectured an American Bar Association committee about the failings of a legal system that essentially excluded the poor.

It was therefore unsurprising that after Rutledge joined the Supreme Court at age 48, he argued consistently for the right of all to due process. The Court of the 1940s had not yet extended the due process guarantees listed in the Bill of Rights, such as the rights to counsel and to a speedy trial, to proceedings in the states. Rutledge insisted not only that all the Bill of Rights' guarantees should apply to the states but that basic rights might go beyond those enumerated in the Constitution. Frequently unable to carry a majority of the Court, he is better known for his dissents and concurrences, and in them he called for a strict separation of church and state, free speech, and an end to discrimination based on gender and poverty.

Rutledge's most notable dissent came in In re Yamashita (1943), in which the Court upheld the decision of a military commission to execute a Japanese general charged with failing to prevent his troops from committing atrocities against citizens of the Philippines. Chastising the military for procedural shortcuts in its eagerness to make its case, Rutledge noted that Yamashita was given insufficient time in which to prepare his defense, that he was denied the right to see all the evidence and cross-examine witnesses, and that in fact there was no credible proof that he was aware of his troop's actions. Rutledge disagreed when Chief Justice Harlan Stone declared that the procedural safeguards enacted by Congress in the Articles of War did not apply to enemy combatants. Long before other justices turned to international law to illuminate their decisions, Rutledge based his dissent not only on American law but on the Hague and Geneva Conventions as well.

Stanley Temko, who clerked for Justice Rutledge in 1947-1948, described the justice as warm and honest: a man who had the respect of all his colleagues even at a time when tensions on the Court were high. He agreed with Ferren that Rutledge's legacy lies in his dissents and concurrences and suggested that one reason is the excessive length of Rutledge's opinions for the Court. The justice, eager to explain all the Court's reasoning in a case, was seemingly unable to limit his opinions to a suitable length and to the important points. The result was that his colleagues were reluctant to let him write for the Court in those cases in which he was in the majority.

In 1948, the Court decided the case of Ahrens v. Clark. More than 100 German nationals, confined on Ellis Island in New York and about to be deported, argued in a District of Columbia federal court that the deportation order was illegal. William O. Douglas upheld the order, writing that the petitioners could not bring suit in D.C. because they were confined outside its territorial jurisdiction. Rutledge dissented vigorously, demonstrating that the law permitted suit to be brought in the jurisdiction of the jailer, who was the Washington-based attorney general of the United States. The young man who was then clerking for Rutledge and who worked on the dissent was John Paul Stevens. In 2004, in the case of Rasul v. Bush, Justice John Paul Stevens wrote for the Supreme Court that the alleged enemy combatants being held in Guantanamo have a right to bring suit in American courts, even though they are physically elsewhere. Justice Rutledge's dissent has now become the wisdom of the United States Supreme Court.

Philippa Strum, Director of U.S. Studies (202) 691-4129