Path to the Supreme Court
Wiley Blount Rutledge, a Baptist preacher's son from Cloverport, Kentucky, fought tuberculosis through his twenties — teaching high school to survive — before Colorado law and the professor's life: dean at Washington University and then Iowa, and one of the few law deans who publicly backed Roosevelt's Court plan. That candor made his name in Washington; the D.C. Circuit followed in 1939, and in February 1943 he became FDR's ninth and final appointment to the Court.
On the Supreme Court
Rutledge packed a generation's work into six years. Thomas v. Collins put the First Amendment's freedoms in their 'preferred position'; Prince v. Massachusetts drew their limit — 'parents may be free to become martyrs themselves,' but not 'to make martyrs of their children.' His Everson dissent demanded 'a complete and permanent separation' of church and state, down to the bus fares. And in Yamashita he wrote the era's great protest against victors' justice: 'More is at stake than General Yamashita's fate… there can be and should be justice administered according to law.' He died of a stroke in September 1949, at fifty-five, seven weeks after Murphy (§80) — the paired deaths that dissolved the Court's liberal wing for a decade. His clerk John Paul Stevens (§101) spent a career repaying the debt.
The Voting Record
How Rutledge voted in the 890 cases the Supreme Court Database records from the 1942 term through the 1948 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 Rutledge voted with Murphy more than with anyone else — the same side of the judgment in 79.8% of their 505 divided cases — and with Burton least, at 44.7%. See the matrices →Compared against the 7 colleagues Rutledge shared at least 300 divided cases with.
Coverage · Rutledge sat across the database’s 1946 join, so these figures pool its legacy and modern releases to cover the whole tenure — but the rank is computed on the 1946-onward record alone, because the justices ranked against have no record before then.
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Thomas v. Collins
1945Holding · Texas could not require union organizers to register before making an organizing speech.
Role · Rutledge wrote the 5–4 majority.
The 'preferred position' of First Amendment freedoms — the phrase and the priority both trace here.
Read the opinion →Prince v. Massachusetts
1944Holding · Child-labor laws may be applied to a child distributing religious literature over a free-exercise objection.
Role · Rutledge wrote for the Court.
'Parents may be free to become martyrs themselves. But it does not follow they are free… to make martyrs of their children' — still the touchstone for state power over children's welfare.
Read the opinion →Everson v. Board of Education
1947Holding · New Jersey's reimbursement of bus fares to parochial-school parents was upheld, 5–4, even as the Court adopted separationist principles.
Role · Rutledge wrote the principal dissent, joined by Frankfurter (§78), Jackson (§82), and Burton (§84).
The purest statement of church-state separation in the U.S. Reports — 'complete and permanent' — and the pole star of one side of the debate ever since.
Read the opinion →In re Yamashita
1946Holding · The military commission's death sentence on General Yamashita stood, 6–2.
Role · Rutledge dissented at length, with Murphy (§80).
'It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions' — the dissent later generations cited from Nuremberg to Guantánamo.
Read the opinion →Go Deeper
Wiley Blount Rutledge is the gentle idealist of the Roosevelt Court — the last of FDR's nine appointees, a beloved law professor and dean who brought to the bench an almost unwavering commitment to civil liberties and the rights of the friendless. In six years, cut short by his death at fifty-five in 1949, he became a reliable member of the Court's liberal wing, dissenting powerfully for the separation of church and state in Everson v. Board of Education and for due process even for a defeated enemy general in In re Yamashita. His most lasting legacy may be human: his law clerk John Paul Stevens (§101) carried Rutledge's example onto the Court decades later. John Ferren's Salt of the Earth, Conscience of the Court is the fine modern biography. Start there, read the Everson and Yamashita dissents, and meet the conscience of the wartime bench.
The Bookshelf
The definitive biography, by a judge of the D.C. Court of Appeals who spent years recovering a justice history had let slip. Ferren traces the Kentucky-born, tubercular young man who found his footing teaching law in the Midwest, rose to deanships at Washington University and Iowa, and was named by Roosevelt in 1943 as a stalwart of the New Deal's judicial vision. He is especially good on Rutledge's civil-liberties jurisprudence and on the warmth that made him beloved by clerks and colleagues. A model judicial biography, and the essential source. University of North Carolina Press.
The first study of Rutledge, by his friend the law professor Fowler Harper — an admiring account of the New Deal liberal who died at fifty-five after only six years on the Court. (John Ferren's Salt of the Earth, above, is the definitive modern life.) Bobbs-Merrill.
Rutledge's most important opinion, and one of the great dissents on the separation of church and state. Though the Court upheld public reimbursement of parents for busing children to parochial schools, both the majority and Rutledge's dissent embraced Jefferson's 'wall of separation' — and Rutledge argued, in a historically rich opinion, that the First Amendment forbade even this modest aid, that its purpose was to keep the state entirely out of religion's support. His view has anchored strict-separationist argument ever since. Free online.
Rutledge's noblest dissent, and a lonely defense of law in the aftermath of war. When the Court allowed the military-commission conviction and execution of the Japanese general Tomoyuki Yamashita on a thin theory of command responsibility, Rutledge — joined by Murphy (§80) — dissented that even a defeated enemy is owed the basic guarantees of due process, that 'the law of war can be observed only if we observe it ourselves.' Written as the Nuremberg principles were being forged, it is a permanent statement of the rule of law's hardest test. Free online.
The reliable short account — the Kentucky boyhood and the fight with tuberculosis, the teaching and the deanships, the six years on the Court, and the early death — in a few well-sourced pages with a portrait. The best compact, citable life to set beside Ferren's fuller one, and a good place to note the clerkship of the young John Paul Stevens (§101). CQ Press for the SCHS.
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.Ferren, Salt of the Earth — for the beloved dean who became the Court's conscience
- 2.Everson dissent — for the strict-separation reading of church and state
- 3.In re Yamashita dissent — for due process even for a defeated enemy
- 4.The SCHS Illustrated Biographies — for the capsule life and the Stevens clerkship
Where the Papers Are Kept
The Wiley B. Rutledge papers at the Library of Congress hold his opinions, correspondence, and conference materials — a valuable if modest collection for a six-year tenure, and a principal source for Ferren's biography and for the study of the Stone and Vinson Courts from the liberal wing. Visit →
Ideas for Further Research
- The teacher on the bench. Rutledge came to the Court from the law school, not the courtroom or politics, and his opinions have the patient, explanatory quality of a great teacher. Ask what the academic path contributes to judging — set him beside Frankfurter (§78), the other professor of the era, whose restraint pointed the opposite way — and what is gained when a scholar rather than a politician takes the seat.
- The Court's liberal moment cut short. Murphy and Rutledge both died in 1949, within two months of each other, ending the Roosevelt Court's civil-libertarian wing and letting Truman remake the bench. Run the counterfactual: how might the incorporation, church-state, and loyalty-oath cases of the 1950s have gone had the two lived, and what does the episode show about the role of mortality and luck in constitutional history?
- Yamashita and the law of war. Rutledge's insistence that due process reaches even a defeated enemy general anticipated the Guantánamo litigation by sixty years. Trace the line from Yamashita through the military-commission cases of the war on terror — Hamdi, Hamdan, Boumediene — and ask whether his lonely 1946 dissent has become, in substance, the modern law. Seat lineage: Byrnes §81 → Rutledge → Sherman Minton §87.