Path to the Supreme Court
Pierce Butler was born in a log cabin in Dakota County, Minnesota, on St. Patrick's Day 1866, to Irish famine emigrants from County Wicklow — and rose to be the Northwest's dominant railroad lawyer, master of the valuation case. Taft (§69) engineered the 1922 nomination for balance on the bench: a Democrat and a Catholic. Progressives fought him over his University of Minnesota regency and professors dismissed on his watch; he was confirmed 61–8, and held the seat until his death in 1939, when Frank Murphy (§80) — another Catholic — succeeded him.
On the Supreme Court
Butler rode with the Horsemen — his Morehead v. Tipaldo struck New York's minimum wage in 1936, liberty of contract's last victory before the wall broke — but his most interesting votes ran off that track. He was the lone dissenter in Buck v. Bell, without opinion, against Holmes's (§58) 'three generations of imbeciles' sterilization ruling — historians usually credit his Catholic conscience, though Butler never explained. He dissented separately in Olmstead, finding warrantless wiretapping a plain Fourth Amendment violation years before the Court agreed. And he wrote Schwimmer, denying citizenship to a middle-aged pacifist who would not promise to bear arms — the case that drew from Holmes the greatest sentence of his last years: 'freedom for the thought that we hate.'
The Voting Record
How Butler voted in the 2,915 cases the Supreme Court Database records from the 1922 term through the 1939 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Across the whole career Butler voted with Van Devanter more than with anyone else — the same side of the judgment in 85.3% of their 333 divided cases — and with Stone least, at 36.7%. See this Court →Compared against the 5 colleagues Butler shared at least 300 divided cases with.
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Buck v. Bell
1927Holding · Virginia's compulsory-sterilization law was upheld, 8–1 — 'three generations of imbeciles are enough.'
Role · Butler dissented alone, without opinion.
The only vote against the Court's most infamous eugenics ruling — a silence historians still interrogate.
Read the opinion →Olmstead v. United States
1928Holding · Warrantless wiretapping was held no Fourth Amendment search; the conviction stood 5–4.
Role · Butler dissented separately, alongside Brandeis (§67), Holmes (§58), and Stone (§73).
The conservative's textual case against wiretapping — vindicated when Katz overruled Olmstead in 1967.
Read the opinion →United States v. Schwimmer
1929Holding · A pacifist unwilling to promise to bear arms could be denied naturalization.
Role · Butler wrote the 6–3 majority; Holmes (§58) dissented — 'freedom for the thought that we hate.'
Overruled in 1946 — but immortal as the provocation for Holmes's final great dissent.
Read the opinion →Morehead v. New York ex rel. Tipaldo
1936Holding · New York's minimum wage for women fell, 5–4, under Adkins.
Role · Butler wrote the majority.
Liberty of contract's last stand — overturned within a year by West Coast Hotel.
Read the opinion →Go Deeper
Pierce Butler is the junior member of the 'Four Horsemen' and the hardest of them to place. A self-made Minnesota railroad lawyer, an Irish-Catholic Democrat named by the Republican Warren Harding in 1923, he was a reliable conservative vote against the New Deal — and also the lone dissenter in Buck v. Bell, the only justice to stand against Holmes's (§58) opinion approving forced sterilization, and a quiet but persistent defender of criminal defendants and the rights of the accused. He has no full biography; the closest thing is David Danelski's classic study of how he was appointed. Approach him through the Friedman & Israel chapter, the lone dissent that is his moral high point, and the history of Taft's Court.
The Bookshelf
The fullest short life of a justice with no full biography. The Chelsea House chapter recovers the self-made career — a Minnesota farm boy turned formidable railroad and corporate lawyer, one of the ablest advocates of his day, elevated to the Court without ever having held judicial office. It is honest about the Four Horseman who fought the New Deal and honest too about the complications: the lone dissent in Buck v. Bell, the sympathy for defendants' rights, the Catholic conscience that set him apart from his bloc. The starting point.
The only book-length study of Butler — a Catholic University monograph on the conservative Minnesota Democrat's philosophy, and the fullest account of the most reticent of the Four Horsemen. Catholic University of America Press.
Butler's moral high point, and one of the loudest silences in the Court's history. When the Court, 8–1, upheld Virginia's forced sterilization of Carrie Buck — Holmes writing 'three generations of imbeciles are enough' — Butler alone dissented. A devout Catholic, he left no opinion explaining why, and scholars have argued ever since over how much was faith and how much was conscience. But he was the only member of the Court to refuse his assent to one of its darkest acts. Read the case for Holmes's notorious majority and Butler's wordless refusal. Free online.
A small classic of Court scholarship, and the closest thing to a Butler book. Danelski uses Butler's 1923 nomination as a case study in the politics of appointment — how a Catholic Democratic railroad lawyer was maneuvered onto a Republican Court, who lobbied for him, and how confirmation actually works behind the scenes. It is less a life than an anatomy of a single appointment, but for a justice without a biography it supplies the richest close look we have. Random House.
The definitive history of the Court Butler joined in 1923. Post's Holmes Devise volume supplies the setting a bookless justice otherwise lacks — the conservative bloc he anchored, the business and regulatory docket where his railroad-lawyer expertise counted, and the criminal-procedure cases where he sometimes broke ranks. The era anchor for §68–§73. Cambridge University Press.
The only substantial modern Butler scholarship — a re-examination of the 1922 appointment with sources unavailable to Danelski's classic study on this shelf. The railroad lawyer, the Catholic seat, and the campaign that put him on the bench, revisited.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The Reading Path
A researched route through the literature — in order.
- 1.The Friedman & Israel chapter — for the self-made lawyer and the whole tenure
- 2.Buck v. Bell — for the lone dissent that is his moral high point
- 3.Danelski, A Supreme Court Justice Is Appointed — for the anatomy of how he reached the Court
- 4.Post, The Taft Court — for the Court he anchored on the right
Where the Papers Are Kept
No large Butler collection survives; he destroyed much of his correspondence, and the scattered remainder sits in Minnesota repositories and among his colleagues' papers. A thin record for a sixteen-year justice — part of why no biography has been written. Visit →
Online Resources
Ideas for Further Research
- The wordless dissent. Butler dissented alone in Buck v. Bell but wrote nothing, leaving a century of speculation about his reasons — Catholic doctrine, lawyerly doubt, simple humanity. Weigh the evidence for each reading, and ask what it means that the Court's one act of conscience against eugenics survives only as a name in the reporter with no opinion attached.
- The Horseman who protected the accused. Butler, the economic conservative, was often the most solicitous of the Four Horsemen toward criminal defendants and Fourth Amendment claims. Map his criminal-procedure record against his economic votes, and ask whether a single conservatism can hold both — or whether 'the Four Horsemen' obscures real differences among them.
- The appointment as artifact. Thanks to Danelski we know more about how Butler was chosen than about almost anything he did on the Court. Use his 1923 confirmation to study the machinery of appointment in the pre-television age — the lobbying, the religion-and-region calculus, the Senate courtesies — and compare it with the public spectacle confirmations became after Brandeis (§67) and, later, Bork. Seat lineage: Day §59 → Butler → Murphy §80.