Pierce butler: A supreme technician

Vanderbilt Law Review

Volumn 62, Issue 2, 2009, Pages 695-756

  Stras, David R ^a  

^a UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

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EID: 57749108534     PISSN: 00422533     EISSN: None     Source Type: Journal    
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References (513)

1. E.g., Maxwell L. Stearns, Standing at the Crossroads: The Roberts Court in Historical Perspective, 83 NOTRE DAME L. REV. 875, 930 n. 218 (2008).
2. NORMAN BINDLER, THE CONSERVATIVE COURT, 1910-1930, at 204 (1986).
3. See generally DAVID J. DANELSKI, A SUPREME COURT JUSTICE IS APPOINTED (1964).
4. E.g., ALBERT P. BLAUSTEIN and ROY M. MERSKY, THE FIRST ONE HUNDRED JUSTICES: STATISTICAL STUDIES ON THE SUPREME COURT OF THE UNITED STATES 48 (1978).
5. John T. Harding, Address at the Memorial of Mr. Justice Butler at the United States Court of Appeals for the Eighth Circuit: An Appreciation of Mr. Justice Butler (Mar. 4, 1940) (transcript on file with the Vanderbilt Law Review).
6. Indeed, the most influential position for Patrick Butler, Pierce's father, prior to his emigration to America was his participation in Sir Roger Murcheson's survey of Ireland. See John Paul Frank, The Confirmation of Pierce Butler 1 (1940) (unpublished M. A. thesis, The University of Wisconsin), available at http://minds.wisconsin. edu/handle/1793/28616.
7. Letter from Robert O'Sullivan to John D. Carmody (Jan. 23, 1940) (on file with the Vanderbilt Law Review).
8. See DANELSKI, supra note 3, at 4; UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, IN MEMORIAM: HON. PIERCE BUTLER 12 (1940) [hereinafter EIGHTH CIRCUIT MEMORIAM] (noting that Patrick Butler came to America "either in 1851 or 1852").
9. DANELSKI, supra note 3, at 4.
10. Different sources cite different dates for Patrick Butler's marriage to Mary Ann. Compare EIGHTH CIRCUIT MEMORIAM, supra note 8, at 12 (suggesting that the Butlers married in 1854), with DANELSKI, supra note 3, at 4 (listing a marriage date of 1855).
11. Frank, supra note 6, at 1.
12. DANELSKI, supra note 3, at 4; Evelyn Burke, The Butler Family, NORTHWEST LIFE, Mar. 1944, at 18-20.
13. The youngest child in the family, Effie, passed away at the age of eight. See sources cited supra note 12.
14. DANELSKI, supra note 3, at 4-5.
15. Id. at 5.
16. David Burner, Pierce Butler, in 3 JUSTICES OF THE UNITED STATES SUPREME COURT, 1789-1978: THEIR LIVES AND MAJOR OPINIONS 1082, 1082 (Leon Friedman and Fred L. Israel eds., Chelsea House Publishers, 3d ed. 1997). Butler punished unruly students through corporal punishment and, on one notable occasion, he physically disciplined a student, threw a pail of water on his bleeding face, and then continued to teach the class as usual. Id.
17. Francis Joseph Brown, The Social and Economic Philosophy of Pierce Butler, 13 CATH. U. AM. STUD. SOC. 1, 1 (1945);
18. Interview by Robert Goff and Lila Johnson with Pierce Butler III, attorney, Doherty, Rumble, and Butler, in Minneapolis, Minn. 6 (June 19, 1968) [hereinafter Pierce Butler III Interview] (on file with the author). The oral history with Butler's grandson, Pierce Butler III, appears to be based on personal knowledge because, during the course of the interview, Butler stated that he "knew... [his] grandfather well." Id. at 3.
19. THE FORGOTTEN MEMOIR OF JOHN KNOX: A YEAR IN THE LIFE OF A SUPREME COURT CLERK IN FDR'S WASHINGTON 76 (Dennis J. Hutchinson and David J. Garrow eds., 2002) [hereinafter KNOX MEMOIR]; Eddy Gilmore, Justice Butler Rose from West, EVENING BULL.-PHILA., Feb. 24, 1937 (on file with the Vanderbilt Law Review) (noting that the "valedictory music of Butler's youth" was the "clanking of milk cans he wrestled for college money").
20. KNOX MEMOIR, supra note 18, at 76.
21. "Tergiverous Tim, " Tales of the Town, NORTHFIELD NEWS (Minn.), Jan. 27, 1922, at 2. Some sources, however, suggest that Butler rode his horse to school instead of walking. E.g., KNOX MEMOIR, supra note 18, at 76.
22. Butler's rejection from West Point potentially spared his life. The candidate who gained admission through the "competitive examination" process was killed in the Philippines in 1901 or 1902. Memorandum from Francis D. Butler to Sunnie Hershberg 1 (Jan. 6, 1961) [hereinafter Hershberg Memorandum] (on file with the Vanderbilt Law Review).
23. Brown, supra note 17, at 1.
24. DANELSKI, supra note 3, at 6-7. Walker defined the term "laissez-faire" by recounting a famed meeting between a French finance minister and French manufacturers: "When a distinguished French minister of finance called the manufacturers of that country to Paris, and asked what he could do for them, they made well-known the answer, 'Laissez nous faire.' " AMASA WALKER, THE SCIENCE OF WEALTH: A MANUAL OF POLITICAL ECONOMY 115 (Boston, Little, Brown and Co. 1866). Walker continued: "It will, doubtless, be a matter of profound astonishment to the future historian, that a people who had a free and untrammeled industry, with natural advantages for the most productive agriculture in the world and for the legitimate growth of every kind of manufacture, should ever have asked for restrictions upon trade." Id. at 115-16. For purposes of this Article, therefore, I define "laissez-faire" as the theory of political economy favoring development of national industry without government regulation. See also Richard A. Posner, The Constitution as an Economic Document, 56 GEO. WASH. L. REV. 4, 20 (1987) (defining proposals to constitutionalize laissez-faire as advocating the interpretation of "the Constitution as a general guarantor of free markets") [hereinafter Posner, Economic Document]; Richard A. Posner, Natural Monopoly and Its Regulation, 21 STAN. L. REV. 548, 620 (1969) (defining the notion of 'laissez faire" as "leaving the function of determining price and output to the market").
25. DANELSKI, supra note 3, at 6 (quoting Walker's text).
26. Id. (same).
27. Id. (same).
28. Id. at 6-7. Ironically, Butler received a failing grade in his constitutional law class. Burner, supra note 16, at 1082.
29. Id. (quoting CLYDE E. JACOBS, LAW WRITERS AND THE COURTS 30 (1954)).
30. Hershberg Memorandum, supra note 21, at 1.
31. It is interesting that Butler's Catholicism played such a prominent role in his early life given that Carleton was a Congregational institution at the time and that Patrick Butler was Protestant. See Brown, supra note 17, at 1; Pierce Butler III Interview, supra note 17, at 6 (noting that Pierce "took instruction and became a Catholic" partly because of the "indifference to the religion of his father who was from Trinity College, which is, of course, a Protestant institution").
32. DANELSKI, supra note 3, at 5-6 (internal citation omitted).
33. Id. at 19 (internal citation omitted).
34. EIGHTH CIRCUIT MEMORIAM, supra note 8, at 14.
35. Id.
36. Id.
37. Id.
38. Burner, supra note 16, at 1082.
39. EIGHTH CIRCUIT MEMORIAM, supra note 8, at 42 (statement of Judge Thomas O'Brien). I acknowledge that remembrances of individuals often provide an extremely favorable impression of the deceased, and thus might provide a skewed picture of Butler. Nonetheless, it is necessary to rely, at least to a limited extent, on these sources because of Butler's order to destroy many of his public papers upon his death. See infra note 303 and accompanying text.
40. Brown, supra note 17, at 1.
41. DANELSKI, supra note 3, at 7-8.
42. Id. at 8.
43. Id.
44. Id.
45. Id.
46. Burner, supra note 16, at 1083.
47. Brown, supra note 17, at 1.
48. While in private practice, Butler also managed his family's mining affairs. RONALD F. HOWELL, CONSERVATIVE INFLUENCE ON CONSTITUTIONAL DEVELOPMENT, 1923-1937: THE JUDICIAL THEORY OF JUSTICES VAN DEVANTER, MCREYNOLDS, SUTHERLAND AND BUTLER 29 (1952) (noting that Butler handled "all the legal work of his five brothers who were engaged in a prosperous contracting and mining business" in Northern Minnesota);
49. Pierce Butler III Interview, supra note 17, at 3 (explaining that the Butler brothers were innovative in that they were the first to use "standard gauge railway equipment" and "really large shovels and drag lines" in the iron-ore mines of Northern Minnesota).
50. DANELSKI, supra note 3, at 8.
51. EIGHTH CIRCUIT MEMORIAM, supra note 8, at 18 (statement of Wilfrid Rumble, Butler's employee and later partner in Butler's firm).
52. DANELSKI, supra note 3, at 8.
53. Id. at 9.
54. Id. (internal citation omitted).
55. Id. at 8.
56. Id. at 8-9.
57. Id. at 9 (internal citation omitted).
58. Id.
59. Id.; see also Pierce Butler III Interview, supra note 17, at 8 (characterizing Butler's firm as "highly individualistic, " without particular commitment to any kind of legal work or any particular group of clients).
60. UNITED STATES SUPREME COURT BAR, PROCEEDINGS OF THE BAR AND OFFICERS OF THE SUPREME COURT OF THE UNITED STATES IN MEMORY OF PIERCE BUTLER, JANUARY 27, 1940, at 19 [hereinafter SUPREME COURT MEMORIAM] (statement of Wilfred Rumble).
61. Id.
62. M. H. Hedges, Pierce Butler: Friend of Intolerance, in BINDLER, supra note 2, at 124, 125. The Nonpartisan League was a political party that advocated state control of mills, grain elevators, banks, and other farm-related industries in order to reduce the power of corporate political interests in Minnesota. See generally CAROL E. JENSON, AGRARIAN PIONEER IN CIVIL LIBERTIES: THE NONPARTISAN LEAGUE IN MINNESOTA DURING WORLD WAR I (1986).
63. Hedges, supra note 60, at 125.
64. HOWELL, supra note 47, at 30.
65. DANELSKI, supra note 3, at 11.
66. Id. at 9.
67. Letter from Robert O'Sullivan to John D. Carmody, supra note 7.
68. MEMORIAL SERVICES FOR DECEASED MEMBERS-RAMSEY COUNTY BAR 6 (Mar. 23, 1940) [hereinafter RAMSEY COUNTY BAR MEMORIAM] (on file with the Vanderbilt Law Review) (remarks of M. J. Doherty).
69. DANELSKI, supra note 3, at 10.
70. Id. at 12.
71. Memorandum from Francis Butler to David J. Danelski, Professor, Univ. of Wash. 4 (Mar. 25, 1963) (on file with the Vanderbilt Law Review) [hereinafter Danelski Memorandum]
72. DANELSKI, supra note 3, at 13.
73. Of course, Van Devanter and Butler would later become two pillars of the so-called "Four Horsemen of the Apocalypse, " who would impede President Franklin Delano Roosevelt's New Deal reforms for a number of years. See, e.g., Barry Cushman, The Secret Lives of the Four Horsemen, 83 VA. L. REV. 559, 559 (1997) (listing Butler and Van Devanter as two of the so-called "Four Horsemen").
74. DANELSKI, supra note 3, at 10.
75. Brown, supra note 17, at 96 and nn. 53-54 (internal citation omitted).
76. Id. (internal citation omitted).
77. Id. at 96-97.
78. DANELSKI, supra note 3, at 11.
79. Id. at 11-12.
80. Id.
81. Id. at 12; see Lexington Mill and Elevator Co. v. United States, 202 F. 615 (8th Cir. 1913);
82. United States v. Swift, 186 F. 1002 (N. D. 111. 1911).
83. Burner, supra note 16, at 1083.
84. Minnesota Rate Cases, 230 U. S. 352, 371 (1913) (listing Pierce Butler as the appellees' attorney).
85. Id. at 420 ("The question we have now before us, essentially, is whether, after the passage of the interstate commerce act, and its amendment, the state continued to possess the state-wide authority which it formerly enjoyed to prescribe reasonable rates for its exclusively internal traffic").
86. Id. at 380.
87. Id. at 432-33:
88. If the situation has become such, by reason of the interblending of the interstate and intrastate operations of interstate carriers, that adequate regulation of their interstate rates cannot be maintained without imposing requirements with respect to their intrastate rates which substantially affect the former, it is for Congress to determine, within the limits of its constitutional authority over interstate commerce and its instruments the measure of the regulation it should supply.
89. EIGHTH CIRCUIT MEMORIAM, supra note 8, at 6.
90. See Shreveport Rate Cases, 234 U. S. 342, 353 (1914):
91. While these decisions sustaining the Federal power relate to measures adopted in the interest of the safety of persons and property, they illustrate the principle that Congress, in the exercise of its paramount power, may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce.
92. See DANELSKI, supra note 3, at 10 (explaining that Butler's firm became "regarded as one of the leading firms in the state").
93. Danelski Memorandum, supra note 69, at 5.
94. Hedges, supra note 60, at 125.
95. DANELSKI, supra note 3, at 13.
96. Danelski Memorandum, supra note 69, at 5.
97. Id.
98. Id. at 14.
99. SUPREME COURT MEMORIAM, supra note 58, at 13 (noting the "warm friendship" Butler developed with Taft, despite Taft's dissent in the arbitration).
100. DANELSKI, supra note 3, at 13.
101. Danelski Memorandum, supra note 69, at 7.
102. Hershberg Memorandum, supra note 21, at 5.
103. See DANELSKI, supra note 3, at 49-55 (noting that Taft gave "encouraging words to Butler" and wrote that Butler "would make a great Justice of our Court"). In fact, Butler became so close to Taft and regarded him as such a highly capable Chief Justice that when Taft died and President Hoover was looking for a replacement, Butler took it upon himself to contact Charles Evans Hughes, the author of the opinion against Butler in the Minnesota Rate Cases, in an effort to persuade Hughes to become "available" for the job. Butler then recommended to President Hoover that Hughes be nominated to replace Taft as Chief Justice. Pierce Butler III Interview, supra note 17, at 9-10. The story of Butler's role in the Hughes nomination has not been reported previously.
104. Letter from Pierce Butler to William Howard Taft, Chief Justice of the Supreme Court of the United States (Dec. 14, 1922) (on file with the Vanderbilt Law Review).
105. See DANELSKI, supra note 3, at 39-40. Though not normally the province of the Chief Justice, Taft "expected to be consulted" by Harding with respect to any vacancies on the Supreme Court. Id. at 40. As Danelski explained, not only had Taft given greater thought to potential replacements for aging Justices, but Taft had also served as an advisor to Harding on a variety of matters, including the composition of Harding's cabinet right after the presidential election. Id. at 29-30. Accordingly, as an informal advisor to Harding and a former President himself, Taft felt free to make suggestions to Harding regarding suitable replacements for vacancies on the federal courts. Id. at 33-34.
106. Id. at 39-40 (describing Justice McKenna's "senility, " Justice Holmes's "difficulty breathing, " and Justice Pitney's "stroke"). Indeed, Joseph McKenna was so mentally infirm by the end of his tenure on the Court that he drafted an opinion that was contrary to the result agreed upon by every member of the Court, including himself. Id. at 40.
107. Id. at 40.
108. Id. at 39.
109. Indeed, the only book written about Butler's life thoroughly chronicles his nomination and confirmation. DANELSKI, supra note 3. David Danelski's excellent book, entitled A Supreme Court Justice is Appointed, is the basis for much of the discussion in this Part regarding Butler's nomination and confirmation to the Supreme Court.
110. Id. at 43-45.
111. Id. at 43.
112. Id.
113. Id. Though not Catholic, Davis was viewed as a viable nominee because of his prominent standing with Democrats. In the view of one of Taft's advisors, Davis was the best choice because he was from New York, the state that was widely thought to be entitled to the next Supreme Court appointment. Id.
114. In fact, by the time Davis passed away in 1955, he had argued more cases before the Supreme Court than any other twentieth-century lawyer; it is believed that only Daniel Webster and Walter Jones argued more cases before the Court. For a detailed description of Davis's tenure in the Solicitor General's Office, see PETER N. UBERTACCIO III, LEARNED IN THE LAW AND POLITICS: THE OFFICE OF THE SOLICITOR GENERAL 73-80 (2005).
115. DANELSKI, supra note 3, at 43, 45, 46.
116. Id. at 47, 53.
117. Id. at 45. At the time, Taft viewed Manton as too political because he was closely associated with Tammany Hall. Id. Taft's reservations regarding Manton turned out to be prophetic because Manton later resorted to accepting gifts and bribes from litigants having business before the Second Circuit. He resigned in 1939 after Manhattan District Attorney Thomas Dewey wrote to the House Judiciary Committee suggesting that Manton be impeached. Manton was later indicted and became the first federal judge to be convicted of accepting bribes. JOSEPH BORKIN, THE CORRUPT JUDGE 25-82 (1962) (noting that Manton was ultimately sentenced to two years imprisonment and ordered to pay a fine of $10, 000);
118. see also United States v. Manton, 107 F.2d 834, 850 (2d Cir. 1939) (affirming Manton's conviction).
119. DANELSKI, supra note 3, at 45.
120. Id. at 42 (quoting the Taft papers).
121. Id. at 46.
122. Id. at 48.
123. Id. at 49.
124. Id. at 54 (quoting Taft's letter to President Harding).
125. Id.
126. Id.
127. Id. at 49.
128. Id. at 50.
129. Id. at 54.
130. Id.
131. Id. at 61.
132. Id. at 65-66.
133. Id. at 66.
134. Id. (quoting the letter from the Minnesota Supreme Court).
135. Id. at 86.
136. Id.
137. Id.
138. Id. at 87.
139. Id. at 88. Justice Van Devanter was so pleased with Butler's nomination that he wrote to a friend that Butler was "a fine lawyer, a broad-gauged, red-blooded man and in every way fitted for the [Supreme Court]." Id.
140. See id. at 90 (noting LaFollette's concerns about Butler's railroad advocacy).
141. See Telegram from Burghild Kuhlney, Secretary, Wisconsin Women's Progressive Association of Superior, to Knute Nelson, Chairman, Subcomm. of the S. Comm. of the Judiciary (Dec. 6, 1922) (on file with the Vanderbilt Law Review);
142. Telegram from John Fitzpatrick, President, Chicago Federation of Labor, to Knute Nelson, Chairman, Subcomm. of the S. Comm. of the Judiciary (Dec. 6, 1922) (on file with the Vanderbilt Law Review);
143. Telegram from Frank Fischer, Chairman, Working People's Political League, to Knute Nelson, Chairman, Subcomm. of the S. Comm. of the Judiciary (Nov. 29, 1922) (on file with the Vanderbilt Law Review).
144. DANELSKI, supra note 3, at 90; Hedges, supra note 60, at 124-26.
145. DANELSKI, supra note 3, at 92.
146. EIGHTH CIRCUIT MEMORLAM, supra note 8, at 7.
147. To my knowledge, the transcript of the proceedings of the subcommittee and other related documents have never been published. All sources related to those proceedings, including the transcript of the hearings, were obtained from the libraries of the Minnesota Historical Society and the University of Washington.
148. Letter from Henrik Shipstead, Senator-Elect of Minn., to Knute Nelson, Chairman, Subcomm. of the S. Comm. of the Judiciary (Dec. 7, 1922) (on file with the Vanderbilt Law Review) (noting four main concerns with Butler's nomination).
149. See The Nomination of Pierce Butler, of Minnesota, to Be Associate Justice of the Supreme Court of the United States: Hearing Before the Subcomm. of the S. Comm. on the Judiciary (Dec. 8, 1922) [hereinafter Subcommittee Hearings] (on file with the author).
150. Letter from Henrik Shipstead, Senator-Elect of Minn., to Knute Nelson, Chairman, Subcomm. of the S. Comm. of the Judiciary (Dec. 7, 1922) (on file with the Vanderbilt Law Review).
151. DANELSKI, supra note 3, at 14-15.
152. Subcommittee Hearings, supra note 141, at 58.
153. Letter from Henrik Shipstead, supra note 140.
154. See Subcommittee Hearings, supra note 141, at 21 (noting Shipstead's argument that Butler "let his bias and his prejudice" against Schaper and Rypins "rule his reason").
155. Id. at 59.
156. Butler was also allegedly involved in the termination of Gerhard Dietrichson, a professor in the Department of Chemistry. Dietrichson accused Butler of suppressing a report that confirmed Dietrichson's allegations of irregularities and difficulties in the school of chemistry, amounting to maladministration and waste of public funds. Dietrichson argued that he should have been reinstated once the report was made available to the Board of Regents. DANELSKI, supra note 3, at 95-97.
157. Subcommittee Hearings, supra note 141, at 79.
158. DANELSKI, supra note 3, at 98-99.
159. Subcommittee Hearings, supra note 141, at 81.
160. Id. at 80.
161. Letter from Pierce Butler to William Howard Taft, supra note 99.
162. Subcommittee Hearings, supra note 141, at 66.
163. Letter from Pierce Butler, Jr., to Knute Nelson, Chairman, Subcomm. of the S. Comm. of the Judiciary (Dec. 7, 1922) (on file with the Vanderbilt Law Review).
164. Telegram from William D. Mitchell, to Knute Nelson, Chairman, Subcomm. of the S. Comm. of the Judiciary (Nov. 29, 1922) (on file with the Vanderbilt Law Review).
165. E.g., id.
166. Subcommittee Hearings, supra note 141, at 70.
167. Id.
168. Id. at 83.
169. Id. at 78.
170. Letter from Henrik Shipstead to Knute Nelson, supra note 140.
171. See Subcommittee Hearings, supra note 141, at 8-13 (discussing the issue of Butler being a "partisan advocate" on behalf of corporations);
172. id. at 96 (addressing the recusal problem).
173. Id. at 95.
174. Id. at 96.
175. Id. It appears that the reservations expressed by Butler's critics in this regard were valid because Butler later participated in a case involving his former client, the Great Northern Railway. See infra note 335.
176. For instance, Shipstead was upset by Butler's representation of the Twin City Rapid Transit Company, which was accused of using "corrupt and improper" methods to secure the approval of the company's projects. Butler apparently fought to keep the city from examining the company's accounting records. The Committee quickly dismissed the charge, finding that Butler zealously advocated for his client, an obligation of every competent attorney. Subcommittee Hearings, supra note 141, at 93; Letter from Henrik Shipstead to Knute Nelson, supra note 140.
177. DANELSKI, supra note 3, at 71-72, 116.
178. Telegram from Lotus D. Coffman, President, Univ. of Minn., to Knute Nelson, Chairman, Subcomm. of the S. Comm. on the Judiciary (Nov. 28, 1922) (on file with the Vanderbilt Law Review).
179. Telegram from M. L. Burton, President, Univ. of Mich., to Knute Nelson, Chairman, Subcomm. of the S. Comm. on the Judiciary (Nov. 28, 1922) (on file with the Vanderbilt Law Review).
180. DANELSKI, supra note 3, at 116.
181. Id. at 127. In fact, Frankfurter wrote to Butler's son prior to the Senate subcommittee hearings to stress that the allegations made by Senator Shipstead that Frankfurter opposed Butler's appointment were false:
182. Therefore, I should like you, and your father, to know, that it's all rubbish- made out of whole cloth. That I am to appear as a witness, or that I am in any wise [sic] involved, directly or indirectly, in the opposition [to your father's nomination], is as true as that I am a son-in-law of Mr. Justice Brandeis-in other words, it's utterly baseless in fact.
183. Letter from Felix Frankfurter, Professor of Law, Harvard Univ., to Pierce Butler, Jr. (Dec. 9, 1922) (on file with the Vanderbilt Law Review).
184. Burner, supra note 16, at 1085.
185. Id.
186. Id. at 1090.
187. E.g., FRED RODELL, NINE MEN: A POLITICAL HISTORY OF THE SUPREME COURT FROM 1790 TO 1955, at 217 (1955) (naming Butler as one of the "Four Horsemen of Reaction").
188. EDWARD NEWTON KEARNEY, FOUR ECONOMIC CONSERVATIVES AND CIVIL LIBERTIES: A STUDY OF THE POSITIONS OF JUSTICES BUTLER, MCREYNOLDS, SUTHERLAND AND VAN DEVANTER, WITH EMPHASIS ON THE PERIOD 1923-1937, at 6 (1965).
189. Robert W. Langran, Why Are Some Supreme Court Justices Rated As "Failures"?, 1985 Y. B. SUP. CT. HIST. SOC'Y 9, 10.
190. Id. at 11.
191. See, e.g., Jack M. Balkin, "Wrong the Day It Was Decided": Lochner and Constitutional Historicism, 85 B. U. L. REV. 677, 685 (2005) (characterizing Butler as a member of a "four person conservative bloc" that opposed many of President Roosevelt's New Deal programs);
192. Samuel R. Olken, The Business of Expression: Economic Liberty, Political Factions and the Forgotten First Amendment Legacy of Justice George Sutherland, 10 WM. and MARY BILL RTS. J. 249, 252 n. 12 (2002) (same);
193. William G. Ross, When Did the "Switch in Time" Actually Occur?: Re-Discovering the Supreme Court's "Forgotten" Decisions of 1936-1937, 37 ARIZ. ST. L. J. 1153, 1159 (2005) (characterizing Butler as a "deeply conservative" member of the Supreme Court in the 1930s). As this Article explains, I do not think it is particularly helpful to refer to Butler as a "conservative" because his views are much more nuanced than that simple label conveys. Instead, I use that term in this Article not so much to describe Butler's jurisprudence, but to refer to the four Justice voting bloc that many historians label as the "Four Horseman"-which includes Justices Butler, McReynolds, Sutherland, and Van Devanter.
194. For purposes of this Article, I use Jan Narveson's definition of the term "libertarianism":
195. the doctrine that the only relevant consideration in political matters is individual liberty: that there is a delimitable sphere of action for each person, the person's "rightful liberty, " such that one may be forced to do or refrain from what one wants to do only if what one would do or not do would violate, or at least infringe, the rightful liberty of some other person (s).
196. JAN NARVESON, THE LIBERTARIAN IDEA 7 (2001);
197. see also DAVID BOAZ, LIBERTARIANISM; A PRIMER 2 (1997):
198. Libertarians defend each person's right to life, liberty, and property-rights that people possess naturally, before governments are created. In the libertarian view, all human relationships should be voluntary; the only actions that should be forbidden by law are those that involve the initiation of force against those who have not themselves used force-actions like murder, rape, robbery, kidnapping, and fraud.
199. Posner, Economic Document, supra note 23, at 21:
200. [T]he economic libertarian approach (whether it takes the form of reinterpretation of the existing Constitution, amendment, or both) diminishes the role of democracy-potentially dramatically. The approach does not entail merely a redirection of constitutional protection from so-called personal liberties to economic liberties, for the consistent libertarian believes as strongly in the former as in the latter. To him the "marketplace in ideas" is a reality and not a metaphor, and sexual freedom, provided it does not cause harm to third parties, is as worthy of constitutional protection as freedom to choose an occupation or decide how much rent to charge a tenant. What is envisaged therefore is a drastic curtailment, across the board, in the scope of permissible legislative, executive, and administrative action.
201. See generally LEONARD E. READ, ELEMENTS OF LIBERTARIAN LEADERSHIP 13-183 (1962) (chronicling the basic tenets of libertarianism in America).
202. See infra notes 194-222 and accompanying text.
203. Compare Buck v. Bell, 274 U. S. 200, 208 (1927) (Butler, J., dissenting without opinion from the Supreme Court's holding that a compulsory sterilization statute as applied to the feeble-minded was constitutional, a position considered liberal in retrospect), with McCardle v. Indianapolis Water Co., 272 U. S. 400, 408 (holding that utility rates set by the Indianapolis Water Company were too high and therefore confiscatory under Justice Butler's cost of reproduction analysis of the Fourteenth Amendment, a position considered conservative).
204. See, e.g., Nebbia v. New York, 291 U. S. 502 (1934) (opinion by Justice Roberts);
205. Pierce v. Soc'y of Sisters, 268 U. S. 510 (1925) (opinion by Justice McReynolds);
206. Adkins v. Children's Hosp., 261 U. S. 525 (1923) (opinion by Justice Sutherland).
207. See infra notes 306-428 and accompanying text.
208. Even in Butler's life, he remained largely "unknown to the public, " and his contribution to American constitutional law is described as "minimal." BINDLER, supra note 2, at 204. However, Butler is not the only lesser-known Justice to serve for such a lengthy period: James M. Wayne (thirty-two years), Samuel Nelson (twenty-seven years), and Robert Grier (twenty-four years) all served on the Court for decades while remaining relatively unknown. JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 28 (2007).
209. E.g., HOWELL, supra note 47; KEARNEY, supra note 177; see also Cushman, supra note 71, at 572-80 (discussing the approach of the "Four Horsemen" to constitutional questions).
210. E.g., KEARNEY, supra note 177, at 6.
211. See, e.g., Near v. Minnesota, 283 U. S. 697, 723-38 (1931) (Butler, J., dissenting) ("It is of the greatest importance that the States shall be untrammeled and free to employ all just and appropriate measures to prevent abuses of the liberty of the press.").
212. See, e.g., Morehead v. New York ex rel. Tipaldo, 298 U. S. 587, 618 (1936) (finding state legislation fixing wages for women "repugnant" to the Fourteenth Amendment).
213. See Pierce v. Soc'y of Sisters, 268 U. S. 510, 534-35 (1925) (invalidating legislation that unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of their children);
214. see also Meyer v. Nebraska, 262 U. S. 390, 402-03 (1923): Without doubt, [the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
215. See, e.g., Jay Burns Baking Co. v. Bryan, 264 U. S. 504, 513 (1926) ("But a state may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.").
216. As his son Francis would later explain, Butler's experience as a prosecutor made him especially committed to giving criminal defendants all of the procedural rights that they were entitled under the Constitution. See infra notes 220-21 and accompanying text. As Ramsey County Attorney, Butler was exposed to the types of abuses that can occur when prosecutors and the police elevate the need to win above all else. Id. As a result, Butler was a "stickler" in criminal cases. See infra text accompanying note 212.
217. U. S. CONST. amend. IV.
218. Id.
219. 277 U. S. 438, 486-88 (1928).
220. Id. at 465.
221. Id. (quoting U. S. CONST, amend. TV). The Court reasoned: The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office, any more than are the highways along which they are stretched.
222. Id.
223. Id. at 488 (Butler, J., dissenting).
224. Id. at 487.
225. Id. at 488.
226. Compare id. at 487 (Butler, J., dissenting) (employing a broad construction of the Fourth Amendment), with id. at 477 (Brandeis, J., dissenting) (arguing that the Amendment should be construed "in light of its object"), and id. at 484 (suggesting that the government should not foster crime by using tainted evidence in criminal trials).
227. 389 U. S. 347 (1967).
228. Id. at 359. In a 1937 decision, the Court held that federal agents were not authorized by the Federal Communication Act of 1934 to intercept telephonic communications through a wiretap. Nardone v. United States, 302 U. S. 379, 384 (1937). That case, however, did not involve the question addressed in Olmstead-whether a wiretap is a search under the Fourth Amendment.
229. 269 U. S. 20 (1925).
230. Id. at 31.
231. Id. at 32. Justice Butler further noted that "Congress ha[d] never passed an act purporting to authorize the search of a house without a warrant. On the other hand, special limitations have been set about the obtaining of search warrants for that purpose." Id.
232. Id. at 33.
233. 285 U. S. 452 (1932).
234. Id. at 467.
235. See, e.g., Nathanson v. United States, 290 U. S. 41, 44 (1933) (finding a search warrant deficient because it rested upon mere suspicion without supporting facts);
236. Sgro v. United States, 287 U. S. 206, 212 (1932) (voiding a search warrant because it had not been executed within ten days as required by law);
237. Grau v. United States, 287 U. S. 124, 128 (1932) (invalidating a search warrant for lack of probable cause);
238. Gambino v. United States, 275 U. S. 310, 316 (1927) (holding that evidence wrongfully procured without a search warrant was inadmissible);
239. Byars v. United States, 273 U. S. 23, 28-34 (1927) (invalidating a search warrant issued upon affiant's statement that he had "good reason" to believe that defendant possessed certain illegal items).
240. Burner, supra note 16, at 1087.
241. E.g., District of Columbia v. Colts, 282 U. S. 63, 73-74 (1930);
242. see also District of Columbia v. Clawans, 300 U. S. 617, 633 (1937).
243. 300 U. S. 617 (1937).
244. Id. at 633 (McReynolds and Butler, JJ., dissenting).
245. Id. at 627.
246. Colts, 282 U. S. at 73-74.
247. Snyder v. Massachusetts, 291 U. S. 97 (1934).
248. Id. at 134-35.
249. See also Palko v. Connecticut, 302 U. S. 319, 329 (1937) (Butler, J., dissenting without opinion from the Court's holding that the Double Jeopardy Clause did not bar the retrial of a criminal defendant for first-degree murder after the first jury found him guilty of second-degree murder in a trial replete with legal errors prejudicing the State of Connecticut);
250. Brown v. Mississippi, 297 U. S. 278, 287 (1936) (Butler, J., joining a unanimous Court in holding that use of a confession obtained by coercion, brutality, and violence could not be a basis for a conviction under the Due Process Clause of the Fourteenth Amendment);
251. Moore v. Dempsey, 261 U. S. 86, 91-92 (1923) (Butler, J., joining an opinion, over the dissent of Justices McReynolds and Sutherland, holding that a district court should have held a hearing on a motion for a writ of habeas corpus when the state trial appeared to be a sham and the defendants were convicted under the pressure of a mob).
252. Hershberg Memorandum, supra note 21, at 3.
253. 287 U. S. 45 (1932).
254. See, e.g., HOWELL, supra note 47, at 36 (arguing that Butler was a "stubborn bigot, " who was "callous to human needs and well-being"). Although I do not believe that Butler was a bigot or racist based on my review of his entire voting record, the possibility cannot be completely dismissed in light of his votes in the Scottsboro Boys case as well as in other cases involving the constitutional rights of minorities and aliens under the Fourteenth Amendment. See infra notes 249-264 and accompanying text.
255. Brown, 297 U. S. at 281; Moore, 261 U. S. at 87.
256. Powell, 287 U. S. at 74-76 (Butler, J., dissenting). On the incorporation issue, Butler would have refused to address it as a procedural matter because it was not properly raised in the courts below or before the Supreme Court. Id. at 76.
257. Id. at 73 (internal quotation marks omitted).
258. Id. at 75.
259. See, e.g., Burner, supra note 16, at 1090 ("[Butler] was concerned for the rights of the criminal."). It is important to note, however, that when the rights of aliens were at issue, Butler almost always sided with the United States government. See, e.g., Kessler v. Strecker, 307 U. S. 22, 38 (1937) (Butler, J., concurring in Justice McReynolds's dissenting opinion arguing that an alien should have been deported because of his association with socialist organizations);
260. United States v. Bland, 283 U. S. 636, 637 (1931) (Butler, J., joining Justice Sutherland's majority opinion denying an alien's citizenship petition because she would only take the required oath by adding qualifying language);
261. United States v. Macintosh, 283 U. S. 605, 626 (1931) (same);
262. United States v. Schwimmer, 279 U. S. 644, 652 (1929) (Butler, J., holding for a six-justice majority that Rosika Schwimmer was properly denied her citizenship application because she refused to take up arms even in cases of national necessity).
263. 198 U. S. 45 (1905).
264. Id. at 64.
265. See Olken, supra note 180, at 278 (describing Lochner and the cases that followed as employing "a relatively narrow, categorical conception of local police powers");
266. William M. Wiecek, The Debut of Modern Constitutional Procedure, 26 REV. LITIG. 641, 687 (2007) (stating that "[t]he death of Lochner liberated the states' police powers").
267. KATHLEEN M. SULLIVAN and GERALD GUNTHER, CONSTITUTIONAL LAW 94-95 (16th ed. 2007) ;
268. Laura Kalman, Law, Politics, and the New Deal (s), 108 YALE L. J. 2165, 2170 (1999).
269. W. Coast Hotel Co. v. Parrish, 300 U. S. 379, 400 (1937) (overruling Adkins in an opinion authored by Chief Justice Hughes);
270. 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 333 (1998);
271. Kalman, supra note 232, at 2172. But see BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION 4-5 (1998) (criticizing the standard story of the "switch in time that saved the nine").
272. William H. Rehnquist, Judicial Independence, 38 U. RICH. L. REV. 579, 593-94 (2004). Some authorities question the conventional view that Roberts's vote was cast in Parrish after Roosevelt's announcement of his plan to pack the Supreme Court. Under the alternative view, it was primarily the resignation of Justice Willis Van Devanter a month after Parrish was decided that led to the eventual defeat of Roosevelt's Court-packing plan. See Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. PA. L. REV. 971, 1028-30, 1053-56 (2000) (discussing the differing historical accounts of the demise of the Court-packing plan, and noting that Justice Van Devanter's resignation was well-timed to thwart the proposal) ;
273. Stephen O. Kline, Revisiting FDR's Court Packing Plan: Are the Current Attacks on Judicial Independence So Bad?, 30 MCGEORGE L. REV. 863, 942 (1999) (explaining how Justice Van Devanter resigned strategically in order to "help defeat FDR's plan").
274. 264 U. S. 504 (1924).
275. Id. at 517.
276. Id. In a decision involving a similar Nebraska statute ten years later, Justice Butler again wrote for the Court but upheld the amended statute. P. F. Peterson Baking Co. v. Bryan, 290 U. S. 570, 575 (1934). According to Justice Butler, the amended statute was far more flexible than the statute considered in Jay Burns because it involved three rather than two ounce allowances for bread weight and required the minimum weight to be maintained for just twelve instead of twenty-four hours after baking. Id. at 573 (noting that, under the Jay Burns statute, "it was impossible to make good bread in the regular way without exceeding the tolerances then prescribed"). Accordingly, the Court held in P. F. Peterson that the amended Nebraska statute did not violate the Due Process Clause of the Fourteenth Amendment. Id. at 575.
277. Under the Pennsylvania statute, "shoddy" was defined as "any material which has been spun into yarn, knit or woven into fabric, and subsequently cut up, torn up, broken up, or ground up. " Weaver v. Palmer Bros., 270 U. S. 402, 409 (1926).
278. Id. at 415.
279. Id.
280. Id. at 412.
281. E.g., id.
282. 298 U. S. 587 (1936).
283. Id. at 618.
284. Id. at 610.
285. Id. at 610-11.
286. Id. at 616.
287. Id. at 618.
288. Frick v. Webb, 263 U. S. 326, 335 (1923);
289. Webb v. O'Brien, 263 U. S. 313, 318 (1923);
290. Porterfield v. Webb, 263 U. S. 225, 231 (1923);
291. Terrace v. Thompson, 263 U. S. 197, 211 (1923).
292. Porterfield, 263 U. S. at 232; Terrace, 263 U. S. at 220.
293. Frick, 263 U. S. at 333.
294. O'Brien, 263 U. S. at 319 n. 1.
295. See, e.g., Porterfield, 263 U. S. at 232-33 (observing that the California Alien Land Law "forbids [Japanese aliens] to lease land in the State" and "deprives Porterfield of the right to enter into contracts for the leasing of his realty").
296. Terrace, 263 U. S. at 217. In Terrace, Justice Butler recognized the broad regulatory authority of the state in regulating the health and welfare of its citizens: "And in the exercise of such powers the state has wide discretion in determining its own public policy and what measures are necessary for its own protection and properly to promote the safety, peace and good order of its people." Id.
297. Id. at 218.
298. Id.
299. Id. at 220.
300. One explanation for the seeming inconsistency between his staunch protection of private property rights in other contexts and his approval of the highly restrictive limitations on property rights in the "Alien Land Law Cases" is that the latter involved a conflict between two core pillars of his philosophy: his deep and abiding sense of national patriotism, DANELSKI, supra note 3, at 15, and his opposition to restrictions on private property. Indeed, Butler was rarely sympathetic (and perhaps even hostile) to the claims of aliens in naturalization and deportation cases. See, e.g., Kessler v. Stricker, 307 U. S. 22, 35-38 (1939) (Butler, J., dissenting from the majority's holding that a federal statute authorizing the deportation of aliens who belonged to certain proscribed organizations did not apply to an individual who joined the Communist Party but then later failed to pay his membership dues);
301. United States v. Macintosh, 283 U. S. 605, 613, 626 (1931) (denying citizenship to a Canadian professor who stated that he would only take up arms for the United States if he believed a war was morally justified);
302. United States v. Schwimmer, 279 U. S. 644, 647, 653 (1929) (upholding a lower court decision denying naturalization to a woman who stated that she would refuse to take up arms even in cases of national necessity). One passage in Schwimmer aptly summarizes Justice Butler's views on national loyalty and patriotism: "[O]ne who is without any sense of nationalism is not well bound or held by the ties of affection to any nation or government. Such persons... are incapable of the attachment for and devotion to principles of the Constitution...." Id. at 652.
303. Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 353-54 (1938) (McReynolds, J., dissenting).
304. 163 U. S. 537, 540, 548 (1896).
305. Gaines, 305 U. S. at 344.
306. Id. at 350.
307. Id. at 353-54 (McReynolds, J., dissenting). Indeed, Justice McReynolds's dissent quoted language from prior opinions of the Court to the effect that "[t]he right and power of the state to regulate the method of providing for the education of its youth at public expense is clear." Id. at 353 (quoting Gong Lum v. Rice, 275 U. S. 78, 85 (1927)).
308. Id. at 353-54.
309. Meyer v. Nebraska, 262 U. S. 390, 399 (1923).
310. Id. at 401.
311. 268 U. S. 510 (1925).
312. Id. at 534-35.
313. 274 U. S. 200, 208 (1927) (Butler, J., dissenting).
314. Perhaps Butler would have been viewed differently had he explained the reasons for his dissent in Buck, one of the least celebrated decisions in Supreme Court history. For example, Justice John Marshall Harlan was rarely thought of as one of the great Supreme Court Justices until the 1950s when his views in Plessy v. Ferguson, 163 U. S. 537, 554-64 (1896) (Harlan, J., dissenting), were vindicated in Brown v. Board of Education, 347 U. S. 483 (1954). I do not mean to suggest that Butler would be lauded as one of the great Justices if he had explained his vote in Buck, only that he might be remembered more favorably had he articulated the justifications for his dissent.
315. In fact, some prominent scholars have asserted that the entire line of economic liberties cases beginning with Lochner set the stage for Griswold v. Connecticut, 381 U. S. 479 (1965), Roe v. Wade, 410 U. S. 113 (1973), and their progeny, which have a distinctly liberal character. See Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" That Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1939 (2004) (arguing that the "ghost of Lochner was reborn in the guise of Griswold v. Connecticut"). Moreover, even if one doubts the link between Lochner and the Court's recent privacy cases, Justice Butler joined in two opinions of the Court that undoubtedly set the stage for the Court's modern substantive due process case law. See id. at 1934 (characterizing Meyer and Pierce as the "two sturdiest pillars" of the modern "substantive due process temple").
316. Indeed, Butler's interactions with giants like Holmes were memorable. Once, after persuading all of his colleagues except Holmes to vote in a certain way, Butler said, "I am glad we have finally arrived at a just decision, " to which Holmes replied, "[h]ell is paved with just decisions." Burner, supra note 16, at 1086.
317. Taft, in fact, was influential in Butler's nomination to the Supreme Court. See supra notes 90-124 and accompanying text.
318. See, e.g., Associate Justice Butler of U. S. Supreme Court Speaks at Dedication of Civil Courts Building, ST. LOUIS DAILY GLOBE-DEMOCRAT, June 22, 1930 (on file with the Vanderbilt Law Review);
319. see also Symposium, National Conference on Judicial Biography, 70 N. Y. U. L. REV. 485, 487 (1995) (examining why certain Justices have received critical attention and discussing, among other topics, the "Biographies of Titans: Holmes, Brandeis and other Obsessions").
320. See, e.g., McDonald v. Thompson, 305 U. S. 263, 264-67 (1938) (seven paragraph majority opinion);
321. Moore v. Mitchell, 281 U. S. 18, 22-24 (1930) (six paragraph majority opinion). 276. Although there are a number of conceptions of judicial minimalism in the scholarly literature, this Part primarily works from the definition advanced by Cass Sunstein, which stresses "two principal features, narrowness and shallowness" of judicial opinions and "the phenomenon of saying no more than necessary to justify an outcome, and leaving as much as possible undecided." CASS SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT 3, 10-11 (1999).
322. E.g., Pierce Butler III Interview, supra note 17, at 18 (describing Justice Butler's perception of the judge as one "whose job is to declare what the law is" and his philosophy as a "belie[f] in the omni-presence theory of law, the natural law notion").
323. SUPREME COURT MEMORIAM, supra note 58, at 14 (statement of Solicitor General Robert H. Jackson).
324. Hershberg Memorandum, supra note 21, at 3. In fact, Butler was such a strong adherent to the principle of stare decisis that he even advocated in favor of it when it would contradict his dissent in another case. Memorandum from Pierce Butler, Associate Justice of the Supreme Court of the United States, to Harlan F. Stone, Associate Justice of the Supreme Court of the United States 3 (Nov. 8, 1928) ("In order to avoid any possibility of impairing the zoning decisions-and I did not agree with the first one-I think it better to let the decision rest upon the ground stated in the opinion. ") (on file with the Vanderbilt Law Review).
325. RAMSEY COUNTY BAR MEMORIAM, supra note 66, at 7 (statement of Michael Doherty).
326. EIGHTH CIRCUIT MEMORIAM, supra note 8, at 22 (statement of Wilfred Rumble).
327. Id.
328. RAMSEY COUNTY BAR MEMORIAM, supra note 66, at 8 (statement of Michael Doherty).
329. EIGHTH CIRCUIT MEMORIAM, supra note 8, at 45 (statement of James O'Brien).
330. RAMSEY COUNTY BAR MEMORIAM, supra note 66, at 8 (statement of Michael Doherty).
331. Hershberg Memorandum, supra note 21, at 3.
332. R. R. Comm'n of Cal. v. Pac. Gas and Elec. Co., 302 U. S. 388, 418 (1938) (Butler, J., dissenting).
333. SUPREME COURT MEMORIAM, supra note 58, at 29 (statement of Robert Taft).
334. Hershberg Memorandum, supra note 21, at 4. The papers of Justice Harlan Fiske Stone reveal Butler's willingness to incorporate language suggested by his colleagues when doing so would not compromise the Court's holding. For example, in United States v. Schwimmer, 279 U. S. 644 (1929), Butler heeded Justice Stone's advice to "leave out the references to distrust and dislike" of conscientious objectors, because of the potential for such language to give the impression that the Court was "actuated by feelings of prejudice." Memorandum from Harlan F. Stone, Associate Justice of the Supreme Court of the United States, to Pierce Butler, Associate Justice of the Supreme Court of the United States 2 (May 23, 1929) [hereinafter Stone Memorandum] (on file with the Vanderbilt Law Review). Instead, Butler inserted Stone's proposed language linking the Court's holding to the relevant statute. Compare Schwimmer, 279 U. S. at 652-53 ("It is obvious that the acts of such offenders evidence a want of that attachment to the principles of the Constitution of which the applicant is required to give affirmative evidence by the Naturalization Act."), with Stone Memorandum, supra, at 2 (same). 290. Hershberg Memorandum, supra note 21, at 4. One example of Butler's minimalism in this regard is Clark v. Paul Gray, Inc., 306 U. S. 583 (1939), in which he indicated that he was "disposed to acquiesce in the opinion and conclusion reached, " despite believing Justice Stone's opinion to be a "tight squeeze on all points." Letter from Pierce Butler, Associate Justice of the Supreme Court of the United States, to Harlan F. Stone, Associate Justice of the Supreme Court of the United States (Apr. 14, 1939) (on file with the Vanderbilt Law Review).
335. E.g., Palko v. Connecticut, 302 U. S. 319, 329 (1937) (Butler, J., dissenting without comment). When Justice Butler did write separately to note his dissent, his opinions were again forceful, direct, and often short. His dissenting opinion in Olmstead v. United States, discussed above, spanned less than three pages. 277 U. S. 438, 485-88 (1928) (Butler, J., dissenting). Even in one of his lengthier dissents in the famous case of Erie Railroad Co. v. Tompkins, 304 U. S. 64 (1938), Butler wrote separately to criticize the Court's decision to overrule Swift v. Tyson, 41 U. S. (16 Pet.) 1 (1842), rather than resolving the case on narrower grounds. Erie, 304 U. S. at 87-90 (Butler, J., dissenting).
336. During the Taney Court, dissents never exceeded twenty-five percent of the Court's overall docket. PERCIVAL E. JACKSON, DISSENT IN THE SUPREME COURT: A CHRONOLOGY 18-19 (1969). That ratio declined slightly to a maximum of twenty-one percent during the pre-New Deal Court, then rose dramatically to more than half of the decisions rendered after 1942. Id.
337. Id. at 167-70 (chronicling the formation of voting blocs on the Court during this period).
338. As John Paul Frank has explained, "Justices Holmes and Brandeis gave the practice [of dissent] a glorious connotation because their dissents were usually so far superior to the majority opinions, and because so many of their dissents subsequently became the law." JOHN P. FRANK, MARBLE PALACE: THE SUPREME COURT IN AMERICAN LIFE 126 (1958).
339. As discussed later in this Article, Butler authored over half of his dissents during his last few years on the Supreme Court. See infra notes 427-28 and accompanying text. Though Butler was hesitant to write separately, that began to change once his colleagues started overruling cases that were decided earlier in his tenure, particularly those in which he had authored the opinion. See id. Thus, it is possible to argue that Butler deviated from his minimalist tendencies during his last two years on the Court, though it was often to attack his colleagues for deviating from prior case law. A strong adherence to stare decisis, however, is arguably consistent with judicial minimalism. See James E. Ryan, Does it Take A Theory? Originalism, Active Liberty, and Minimalism, 58 STAN. L. REV. 1623, 1634 (2006) (reviewing CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE BAD FOR AMERICA (2005) and STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005)) ;
340. Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 353, 402 (2006).
341. 274 U. S. 200, 207 (1927).
342. Id. at 208.
343. See, e.g., John T. Noonan, Jr., The Catholic Justices of the United States Supreme Court, 67 CATH. HIST. REV. 369, 378 (1981) (suggesting that Butler's muteness leaves his true motivations for dissenting unknown).
344. 302 U. S. 319, 329 (1937).
345. See supra notes 194-228 and accompanying text (discussing Justice Butler's jurisprudence involving the rights of criminal defendants). In yet another case, Nashville, Chattanooga and St. Louis Railway v. White, 278 U. S. 456 (1929), Butler wrote to Justice Van Devanter that, though he disagreed with the holding reached by the Court, it was "doubtful whether [a] dissenting opinion or noting of disagreement would do any good, and unless you['re] inclined the other way, I am disposed to acquiesce." Memorandum from Pierce Butler, Associate Justice of the Supreme Court of the United States, to Willis Van Devanter, Associate Justice of the Supreme Court of the United States (Jan. 22, 1929) (on file with the Vanderbilt Law Review). Interestingly, neither Justice Butler nor Justice Van Devanter dissented in the case. See White, 278 U. S. 456.
346. Associate Justice Butler of U. S. Supreme Court Speaks at Dedication of Civil Courts Building, ST. LOUIS DAILY GLOBE-DEMOCRAT, June 22, 1930 (on file with the Vanderbilt Law Review).
347. Justice Butler Catches Limit, WATERTOWN DAILY TIMES (N. Y.), Apr. 24, 1937, at 20 (on file with the Vanderbilt Law Review).
348. Letter from Francis Butler to Paul E. Edlund, Acting Chief, Gift and Exchange Div., Library of Congress (Aug. 4, 1965) (on file with the Vanderbilt Law Review);
349. Letter from Francis Butler to David C. Mearns, Chief, Manuscript Div., Library of Congress (June 11, 1959) (on file with the Vanderbilt Law Review).
350. I am thankful to Mrs. Pierce Butler III, who kindly gave my research assistant and me access to all of the Butler family papers housed at the Minnesota Historical Society. 305. Like many Justices, Pierce Butler spoke occasionally at dedications of new buildings and graduation ceremonies. E.g., Associate Justice Butler of U. S. Supreme Court Speaks at Dedication of Civil Courts Building, ST. LOUIS DAILY GLOBE-DEMOCRAT, June 22, 1930. However, even these events were rare.
351. 277 U. S. 438, 485-88 (1928) (Butler, J., dissenting).
352. 274 U. S. 200 (1927).
353. 300 U. S. 379 (1937).
354. 304 U. S. 144 (1938).
355. 5 U. S. (1 Cranch) 137 (1803).
356. 347 U. S. 483 (1954).
357. HOWELL, supra note 47, at 65.
358. See supra notes 61-71 and accompanying text.
359. Brown, supra note 17, at 20.
360. Bluefield Water Works and Improvement Co. v. Pub. Serv. Comm'n, 262 U. S. 679, 692 (1923).
361. HOWELL, supra note 47, at 69.
362. CHARLES F. PHILLIPS, JR., THE REGULATION OF PUBLIC UTILITIES 321, 325-26 (3d ed. 1993). As Phillips's leading treatise on public utilities regulation explains, "the prudent investment standard... shift[s] attention from the left-hand, or asset, side to the right side of the balance sheet, which constitutes the capital embarked in the enterprise." Id. at 326.
363. There are two primary differences between Butler's cost of reproduction theory and Brandeis's prudent investment theory: time and scope. First, Justice Butler calculated the value of a public utility at the time of the ratemaking proceedings, while Justice Brandeis considered only the cost incurred by the utility at the point when the plant and any improvements were originally constructed. Id. at 322-26. Second, Butler employed a broad measure of a utility's value by comparing it to private business ventures and including measures for such intangible property rights as goodwill and going value, while Brandeis narrowly calculated the value of a public utility by examining only the amount prudently invested in it and counting only the utility's property that was employed in the public interest. See supra note 316 and accompanying text. In a decade when prices were rising steadily, the choice between these two theories was stark, especially for public utilities companies, who had millions of dollars hanging in the balance. Compare, e.g., McCardle v. Indianapolis Water Co., 272 U. S. 400, 420-21 (1926) (holding, in an opinion by Justice Butler, that a rate of return of no less than 7% of the value of the utility-$19 million-was the minimum necessary to avoid being confiscatory), with id. at 422 (Brandeis, J., dissenting) (arguing that a lower rate would not be confiscatory and that a $19 million valuation was "clearly in error").
364. Munn v. Illinois, 94 U. S. 113, 126, 133-34 (1876). Munn involved Illinois legislation that set a schedule of maximum prices on grain elevators located in the city of Chicago. Id. at 123. The Supreme Court extended the Munn rule to the regulation of railroads in Chicago, Burlington and Quincy Railroad Co. v. Iowa, 94 U. S. 155, 161 (1877).
365. See Munn, 94 U. S. at 133-34 ("For protection against abuses by legislatures the people must resort to the polls, not to the courts.").
366. See Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362, 399 (1894) (asserting that review of rate regulations was "within the scope of judicial power and a part of judicial duty");
367. Chicago, Minneapolis and St. Paul Ry. Co. v. Minnesota, 134 U. S. 418 (1890) (holding that "[t]he question of the reasonableness of a rate charge for transportation by a railroad company... is eminently a question for judicial investigation").
368. 169 U. S. 466, 546-47 (1898).
369. Id. at 522-24.
370. Id. at 526-27.
371. Id. at 546-47.
372. Stephen A. Siegel, Understanding the Lochner Era: Lessons from the Controversy over Railroad and Utility Rate Regulation, 70 VA. L. REV. 187, 251, 261-62 (1984).
373. Smyth, 169 U. S. at 546-47; see also supra text accompanying notes 314-17.
374. William P. Barr et al., The Gild That Is Killing the Lily: How Confusion over Regulatory Takings Doctrine Is Undermining the Core Protections of the Takings Clause, 73 GEO. WASH. L. REV. 429, 450 (2005).
375. See PHILLIPS, supra note 317, at 326 (noting that the Court "consistently refused to resolve the controversy" between the two theories of valuation). In the early part of the twentieth century, public utilities and state utility commissions switched sides in the debate over the competing valuation methods. Id. at 321. Prior to World War I when prices were stable, public utilities generally argued for original cost while utility commissions applied a reproduction cost formula. Id. But when construction prices began to soar during and after World War I, utilities began to demand consideration of reproduction cost in determining the fair value of utility property, while commissions endorsed an original cost formula. Id. at 322.
376. Brown, supra note 17, at 9.
377. Pierce Butler, Valuation of Railway Property for Purposes of Rate Regulation, 23 J. POL. ECON. 17, 17-18 (1915). Butler viewed the low rates set by many public utility commissions as an unconstitutional deprivation of the private property rights of railroads and its investors. See id. at 25 (emphasizing that the Fifth Amendment prohibits states from setting rates "so unreasonable and low as not to yield a fair return upon the full value of the property"). According to Butler, "The title to railroad property is not held either in whole or in part for the use or benefit of the public. The company has full title and ownership. " Id. at 26.
378. Id. at 29.
379. Id. at 18.
380. The concerns of critics of his nomination that feared that he would be biased in favor of railroads appeared to be well-founded. See supra note 140 and accompanying text. Although I do not mean to suggest that Butler acted improperly in advancing his cost of reproduction theory while serving on the Court, he did raise eyebrows when he participated in a 1936 Supreme Court case involving his former client, the Great Northern Railway. Great N. Ry. Co. v. Weeks, 297 U. S. 135 (1936). Recusal decisions have always been left up to the discretion of members of the judiciary, except in limited circumstances, and there is a long history of Justices that have participated in cases where the ethical course of action is not always clear. See generally Jeffrey W. Stempel, Rehnquist, Recusal, and Reform, 53 BROOK. L. REV. 589 (1987) (reviewing the history of judicial recusal and the controversy surrounding judges' decisions not to recuse themselves).
381. Because the opinion was released several months after Butler was confirmed and there is no indication that he declined to participate, it appears that Butler took an active part in the consideration of this case, although it is unclear what role he played in the outcome or the opinion itself. See Brown, supra note 17, at 24 (observing that Justice Butler's "influence, if any,... on the decision is not evident from the record").
382. Sw. Bell Tel. Co. v. Pub. Serv. Comm'n of Mo., 262 U. S. 276, 287 (1923).
383. See supra notes 229-48 and accompanying text.
384. See Sw. Bell, 262 U. S. at 287 ("The property [of utilities] is held in private ownership, and it is that property, and not the original cost of it, of which the owner may not be deprived without due process of the law." (quoting Minnesota Rate Cases, 230 U. S. 352, 454 (1913))).
385. 262 U. S. 679 (1923).
386. Id. at 683.
387. Id.
388. Id. at 689.
389. Id. at 692.
390. Id. at 692-93.
391. Id. at 693.
392. Id. at 692.
393. 272 U. S. 400 (1926).
394. Id. at 411-12.
395. Id. at 408-09.
396. Id.
397. Id. at 413-15; HOWELL, supra note 47, at 78.
398. PHILLIPS, supra note 317, at 323.
399. Though the cost of reproduction theory dominated the Court's consideration of the reasonableness of public utility rates during the first decade of Butler's tenure, the Court never concluded that it was the sole method on which to calculate the rate base. Instead, in many cases, the Court held that it was an essential factor for public utility commissions to consider along with the many other factors discussed in Smyth v. Ames, 169 U. S. 466 (1898).
400. Sw. Bell Tel. Co. v. Pub. Serv. Comm'n of Mo., 262 U. S. 276, 292 (1923) (Brandeis, J., dissenting). Brandeis criticized the cost of reproduction method as circular to the extent that it calculated the value of utilities by capitalizing their net earnings because such earnings are determined primarily by the rates that a utility will be permitted to charge, which is the core question in ratemaking investigations. Id.
401. Id. at 308. As Stephen Siegel has pointed out, however, the prudent investment theory is not free from administrative difficulties. For instance, to attract new capital, the theory required setting railroad and utility rates of return higher than "prevailing rates to compensate investors for... unique" limits on investments in the public utility context, yet politicians were unlikely to set above-normal rates of return when the general public was generally seeking lower utility rates. Siegel, supra note 326, at 238-39.
402. Sw. Bell, 262 U. S. at 306-07 (Brandeis, J., dissenting).
403. Id. at 290-92. In a later case, Justice Stone harshly attacked the cost of reproduction theory along similar lines, calling it "the most speculative undertaking imposed upon [courts] in the entire history of English jurisprudence." West v. Chesapeake and Potomac Tel. Co., 295 U. S. 662, 689 (1935) (Stone, J., dissenting).
404. Sw. Bell, 262 U. S. at 289, 291; HOWELL, supra note 47, at 70. The cost of service, as defined by Brandeis, consisted of capital charges, including an allowance for the use of capital, "the risk incurred, " and a sufficient return "to attract [additional] capital, " as well as operating expenses, such as the cost of labor and raw materials. Sw. Bell, 262 U. S. at 291.
405. See PHILLIPS, supra note 317, at 327 (explaining that a judicial shift away from the cost of reproduction theory began in 1933). Around this time, scholars and commentators also began to criticize the cost of reproduction theory. For instance, the Interstate Commerce Commission continued to defend the use of original cost or prudent investment formulas in valuing public utilities. Id. One prominent commentator, Ben Lewis, summarized the prevailing criticism against the cost of reproduction theory at the time, referring to it as "the unpredictable product of incalculable considerations" that bear "no derivative relation to any figures in evidence and no ascertainable relation to any functional purpose of rate making" and resulting only in "indecision and confusion. " Ben W. Lewis, Public Utilities, in 2 GOVERNMENT AND ECONOMIC LIFE 616, 692-94 (Leverett S. Lyon and Victor Abramson eds., 1940). For instance, using a cost of reproduction theory, the nation's railroads would have been worth nearly $18 billion in 1914, $41 billion by 1920, but then would have dropped to $31 billion just three years later. See PHILLIPS, supra note 317, at 336 (using estimations computed by the Interstate Commerce Commission).
406. 289 U. S. 287, 305-06 (1933). In other words, the Court focused primarily on the end result of the Commission's findings, the rates imposed on the utility, rather than the question of whether the Commission used the preferred methodology to calculate those rates.
407. Id. at 297.
408. Id. at 316-17.
409. Id. at 323 (Butler, J., dissenting).
410. See id. at 324-26 (explaining that when "any going value exists, the amount justly attributable thereto must be ascertained and included").
411. Id. at 325.
412. Id. at 326.
413. PHILLIPS, supra note 317, at 328 (citing R. R. Comm'n of Cal. v. Pac. Gas and Elec. Co., 302 U. S. 388 (1938);
414. Denver Union Stock Yard Co. v. United States, 304 U. S. 470 (1938);
415. Lindheimer v. Ill. Bell Tel. Co., 292 U. S. 151 (1934);
416. and Dayton Power and Light Co. v. Pub. Utils. Comm'n, 292 U. S. 290 (1934)).
417. The Court's rapidly changing jurisprudence in utility rate cases generally coincides in time with its landmark reversal in economic liberties cases starting with West Coast Hotel v. Parrish, 300 U. S. 379 (1937), suggesting more generally that the Court was retreating from its robust role in economic regulation in a variety of areas.
418. R. R. Comm'n of Cal. v. Pac. Gas and Elec. Co., 302 U. S. 388, 402 (1938) (Butler, J., dissenting).
419. Id. at 402, 408, 415.
420. Id. at 418.
421. Id.
422. 320 U. S. 591 (1944);
423. see also PHILLIPS, supra note 317, at 328 (discussing the impact of the Hope Natural Gas case).
424. See, e.g., Duquesne Light Co. v. Barasch, 488 U. S. 299, 314 (1989) (citing Bluefield Water Works and Improvement Co. v. Pub. Serv. Comm'n, 262 U. S. 679, 692-93 (1923)). According to a Westlaw search conducted on August 6, 2008, Bluefield Water Works has been cited in over 1700 cases and administrative decisions.
425. PHILLIPS, supra note 317, at 331.
426. Id.
427. Id.
428. Id. at 338.
429. Ninety-two results were found when the following Westlaw search was conducted on January 26, 2009, in the Supreme Court database: "au (Butler) and sy, di (railway or railroad or utility)." Though only a rough measure, this search reveals that approximately twenty-eight percent of the 327 majority opinions that Justice Butler authored were related to public utilities or the nation's railroads.
430. Eighty-one results were found when the following Westlaw search was conducted on January 26, 2009, in the Supreme Court database: "au (Butler) and sy, di (tax!)." Approximately twenty-five percent of Butler's majority opinions were in tax-related cases.
431. Burner, supra note 16, at 1082.
432. See supra notes 23-26 and accompanying text.
433. EIGHTH CIRCUIT MEMORIAM, supra note 8, at 8.
434. In a 1926 address to Catholic women at Soldier Field, Butler argued that "care should be taken lest activities of government be expanded beyond their public sphere. It is possible by too many enactments and regulations to impair the dignity of law and respect for authority." Justice Butler Says Church Is Nation's Guide, N. Y. HERALD-TRIB., June 23, 1926.
435. DANELSKI, supra note 3, at 17; HOWELL, supra note 47, at 309.
436. See supra notes 229-71 and accompanying text.
437. KEARNEY, supra note 177, at 6.
438. See Brown, supra note 17, at 50-51 (explaining that "[t]he due process and equal protection clauses of the Fourteenth Amendment were the constitutional arguments most frequently used by Justice Butler and the conservatives in nullifying state taxation" and listing the cases in which those arguments were made).
439. 282 U. S. 582 (1931).
440. Id. at 605-06.
441. Id. at 599, 605-06. Writing for three other Justices, Justice Owen Roberts vigorously dissented to the result in the case, disagreeing with Butler that the property had vested in the beneficiaries before the inheritance tax was enacted and that the Contracts Clause limited the Commonwealth's ability to tax the property in question. Id. at 617 ("The Coolidge children could not obtain possession or control of the corpus despite their parents' release of all interest in it. The trustees still had duties to perform.");
442. id. at 638 (stating that "the power to tax property" is "no wise [sic] hindered or impeded by the fact of the existence of the contract whether it antedates or follows the effective date of the taxing act").
443. It bears mentioning that Butler had a similar view about federal taxes operating retroactively on vested property interests. In at least two cases, Butler joined an opinion of the Court invalidating such taxes under the Due Process Clause of the Fifth Amendment. See Nichols v. Coolidge, 274 U. S. 531, 542-43 (1927) (Butler, J., joining an opinion authored by Justice McReynolds invalidating a federal statute under the Fifth Amendment that retroactively taxed property transferred by a decedent prior to the statute's passage, even if "the conveyance was intended to take effect in possession or enjoyment at or after [the decedent's] death");
444. see also Blodgett v. Holden, 275 U. S. 142 (1927) (Butler, J., joining an opinion authored by Justice McReynolds that held a gift tax with retroactive effects in violation of the Fifth Amendment).
445. See supra notes 235-71 and accompanying text.
446. See Robert C. DeGaudenzi, Note, Death Is Still Certain, But Are Taxes?: An Examination of the Due Process Limitations on Retroactive Tax Legislation After Carlton v. United States, 67 ST. JOHN'S L. REV. 327, 333-34 (1993) (explaining that the Court "retreated from these early estate and gift tax decisions, often by distinguishing them factually") (internal citation omitted). Coolidge's importance is also diminished by the Court's greater willingness to tolerate retroactivity with respect to income taxes than estate and gift taxes. See Kyle D. Logue, Tax Transitions, Opportunistic Retroactivity, and the Benefits of Government Precommitment, 94 MICH. L. REV. 1129, 1168 and n. 130 (1996) ("According to the Supreme Court's most recent pronouncement on retroactive federal income taxation, to survive a due process challenge Congress's decision to apply a tax change retroactively need only pass the 'rational-basis' test.");
447. Pat Castellano, Comment, Retroactively Taxing Done Deals: Are There Limits?, 43 U. KAN. L. REV. 417, 447 (1995) ("Although the Supreme Court consistently upheld retroactive income tax legislation because it serves a legitimate legislative purpose, the Supreme Court was less deferential to retroactive gift and estate tax legislation affecting voluntary, vested transactions.").
448. See, e.g., Colgate v. Harvey, 296 U. S. 404, 433 (1935) (Butler, J., joining an opinion authored by Justice Sutherland that set aside a Vermont law that exempted from taxation income from intrastate loans, but not those originating from out of state, on the basis of the Privileges and Immunities Clause of the Fourteenth Amendment);
449. Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389, 402 (1928) (invalidating a Pennsylvania tax on the gross receipts of taxicab operators on the basis of the Equal Protection Clause of the Fourteenth Amendment because it was levied solely on "incorporated operators" and not on "natural persons and partnerships").
450. E.g., Puget Sound v. Tax Comm'n, 302 U. S. 90 (1937);
451. Cooney v. Mountain States Tel. Co., 294 U. S. 384 (1935);
452. State Tax Comm'n v. Interstate Natural Gas Co., 284 U. S. 41 (1931);
453. Carson Petroleum Co. v. Vial, 279 U. S. 95 (1929);
454. Ozark Pipe Line Corp. v. Monier, 266 U. S. 555 (1925);
455. Tex. Transp. and Terminal Co. v. New Orleans, 264 U. S. 160 (1924).
456. 280 U. S. 338, 349 (1930).
457. 25 U. S. (12 Wheat.) 419 (1827). In Brown, Chief Justice Marshall wrote for the Court in holding that it was unconstitutional for a state or locality to tax goods that were imported in their original packaging and then transported through the state or locality to be sold elsewhere. Id. at 457.
458. Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U. S. 218, 229 (1933).
459. Id. at 225, 229. Justice Cardozo, by contrast, would have characterized the franchise tax not as a tax on imports, but as a tax on the privilege of doing business within the State of Alabama. Id. at 232-33 (Cardozo, J., dissenting).
460. 306 U. S. 167, 181 (1939) (Butler, J., dissenting).
461. E.g., Magnano Co. v. Hamilton, 292 U. S. 40 (1934);
462. Monamotor Oil Co. v. Johnson, 292 U. S. 86 (1934);
463. Virginia v. Imperial Coal Sales Co., 293 U. S. 15 (1934);
464. E. Ohio Gas Co. v. Tax Comm'n, 283 U. S. 465 (1931);
465. Lacoste v. Dep't. of Conservation, 263 U. S. 545 (1924).
466. Barry Cushman has written that "the Four Horsemen repeatedly sustained the power of big government to take other people's money, " that they "upheld scores of taxes on business in the face of every conceivable manner of constitutional challenge, " and even that they were "closet liberals, " whose intent was to work "surreptitiously to undermine the very causes that their conservative patrons held most dear." Cushman, supra note 71, at 560-61. While it is true that Butler and the other so-called "Horsemen" did vote in a number of cases to sustain taxes in a variety of contexts, Cushman overstates his case at least insofar as Butler is concerned. Indeed, in many of the closely divided cases involving the constitutionality of federal, state, or local taxes, Butler voted to invalidate such taxes on the basis of a myriad of constitutional provisions, many of which I discuss in this Article. In these cases, rarely was Butler joined by Justices that are traditionally viewed by historians as liberal, such as Justices Brandeis, Cardozo, Stone, or Holmes. See, e.g., Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U. S. 218 (1933) (holding, in an opinion by Justice Butler joined by the other "Horsemen, " that an Alabama franchise tax on bags of nitrate fertilizer violated the Commerce Clause, with Justices Stone, Cardozo and Brandeis dissenting);
467. Coolidge v. Long, 282 U. S. 582 (1931) (holding, in an opinion by Justice Butler, that a state inheritance tax as applied to a trust deed violated the Due Process Clause of the Fourteenth Amendment, over the dissent of Justices Roberts, Stone, Holmes, and Brandeis);
468. Missouri ex rel. Missouri Ins. Co. v. Gehner, 281 U. S. 313 (1930) (holding, in an opinion by Justice Butler, that a Missouri tax on insurance companies violated the doctrine of intergovernmental tax immunity, with Justices Stone, Holmes, and Brandeis dissenting);
469. Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389 (1928) (holding, in an opinion by Justice Butler, that a tax levied solely against "incorporated operators" and not on "natural persons and partnerships" was arbitrary and thus violated the Equal Protection Clause, with Justices Holmes, Brandeis, and Stone dissenting).
470. Brown, supra note 17, at 46.
471. 17 U. S. (4 Wheat.) 316, 436 (1819). The concept of state immunity from federal taxation, by contrast, did not become firmly established until 1870 when the Supreme Court decided in Collector v. Day that a state judge could not be subjected to federal income tax on the money that he earned as a judge. 78 U. S. (11 Wall.) 113, 124 (1870).
472. See, e.g., Helvering v. Gerhardt, 304 U. S. 405, 428 (1938) (Butler, J., dissenting) (holding that "[i]t is an established principle of our constitutional system of dual government" that the states cannot tax the "instrumentalities, means and operations whereby the United States exercises its governmental powers, " the federal government cannot tax the "instrumentalities, means and operations whereby the states exert the governmental powers belonging to them, " and that "[w]here th[is] principle applies it is not affected by the amount of the particular tax or the extent of the resulting interference, but is absolute").
473. 271 U. S. 609 (1926).
474. Id. at 612-14.
475. Panhandle Oil Co. v. Mississippi, 277 U. S. 218, 221 (1928).
476. See Graves v. Tex. Co., 298 U. S. 393, 400-01 (1936). In Graves, the Court rejected a construction of the Alabama statute proffered by the Attorney General of Alabama that the excise tax was on the storage of gasoline, not its withdrawal and sale to the United States. Id. at 398-40. But even if the tax was on mere storage, Butler still would have invalidated it under the doctrine of intergovernmental tax immunity:
477. A tax upon anything so essential to the sale of the gasoline to the United States is as objectionable as would be a tax upon the sale itself.... So far as concerns the federal immunity from state taxation, a tax upon storing or withdrawal so involved cannot be distinguished from the tax on sales imposed by the Mississippi statute condemned as unconstitutional.
478. Id. at 401.
479. Eduard A. Lopez, The Constitutional Doctrines of State Immunity from Federal Regulation and Taxation After Garcia v. San Antonio Metropolitan Transit Authority, 4 J. L. and POL. 89, 95 (1987).
480. See Helvering v. Gerhardt, 304 U. S. 405, 419 (1938) (holding that states were not immune from federal taxation of "activities thought not to be essential to the preservation of state governments");
481. see also Helvering v. Mountain Producers Corp., 303 U. S. 376, 386 (1938) (holding that states were not immune from federal taxes on income derived from a lease of school lands because interference with state government "cannot be supported by merely theoretical conceptions of interference with the functions of government").
482. Gerhardt, 304 U. S. at 430 (Butler, J., dissenting). In his dissent in Gerhardt, Butler again advanced his view that intergovernmental tax immunity is "not affected by the amount of the particular tax or the extent of the resulting interference, but is absolute." Id. at 428.
483. Mountain Producers, 303 U. S. at 390 (Butler, J., dissenting).
484. Id. at 390-91. Mountain Producers, in particular, drew Butler's opinion in Jaybird Mining Co. v. Weir, 271 U. S. 609 (1926), into substantial doubt by overruling Gillespie v. Oklahoma, 257 U. S. 501 (1922), a case that formed the foundation for Jaybird Mining, and by holding that a federal tax on the profits of a company "operating under a government contract or lease" with Wyoming resulted in only an "indirect and remote" tax on the state. Mountain Producers, 303 U. S. at 386-87.
485. Gerhardt, 304 U. S. at 415 (Butler, J., dissenting) (characterizing the immunity recognized in Collector v. Day as "narrowly limited to a state judicial officer engaged in the performance of a function which pertained to state governments at the time the Constitution was adopted");
486. id. at 412 ("The exercise of the national taxing power is thus subject to a safeguard which does not operate when a state undertakes to tax a national instrumentality.").
487. Graves v. New York, 306 U. S. 466, 486 (1939) (Butler, J., dissenting).
488. Id. at 487.
489. 299 U. S. 401 (1937).
490. Id. at 408-09.
491. Graves, 306 U. S. at 493 (Butler, J., dissenting).
492. See, e.g., M. E. Blatt Co. v. United States, 305 U. S. 267, 275 (1938) (employing a mathematical table in the majority opinion to explain the effect of depreciation on the value of alterations and improvements paid for by a lessee);
493. Helvering v. Tex-Penn Co., 300 U. S. 481, 493-94 (1937) (using tables to explain the consequences of a commercial transaction);
494. U. S. Cartridge Co. v. United States, 284 U. S. 511, 513 (1932) (using a table to illustrate the taxpayer's income, deductions, and reductions from judgment).
495. See, e.g., Thomas v. Perkins, 301 U. S. 655, 663 (1937) (holding that the taxpayer did not have to include in his income a payment made from a purchaser of an oil interest because the assignor was entitled to deduct depletion);
496. Tex-Penn Co., 300 U. S. at 499 (holding that cash received by the taxpayer from a stock sale was not includable in taxable income);
497. Helvering v. Taylor, 293 U. S. 507, 514-16 (1935) (holding that a taxpayer need not pay an amount shown to be "arbitrary and excessive" even when he cannot show the exact amount owed in taxes);
498. U. S. Cartridge Co., 284 U. S. at 520 (holding that the taxpayer could properly deduct the lost value of buildings and leftover inventory);
499. Bonwit Teller and Co. v. United States, 283 U. S. 258, 265 (1931) (holding that the taxpayer could bring a suit for overpayment of income taxes);
500. V. Loewers Gambrinus Brewery Co. v. Anderson, 282 U. S. 638, 645 (1931) (holding that the taxpayer was entitled to a deduction as a result of the obsolescence of the company's buildings).
501. 284 U. S. 498, 508, 510-11 (1932). The oleomargarine tax was promulgated to support the dairy industry by eliminating the competitive price advantage enjoyed by butter substitutes. Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 COLUM. L. REV. 272, 353 (2004).
502. Standard Nut, 284 U. S. at 509.
503. See Bonwit Teller, 283 U. S. at 263 (stating that a refund portion of a tax law "is to be construed liberally in favor of the taxpayers");
504. Bowers v. N. Y. and Albany Lighterage Co., 273 U. S. 346, 350 (1927) ("[S]uch laws are to be interpreted liberally in favor of the taxpayers.").
505. See White v. United States, 305 U. S. 281, 292 (1938) (stating, over the dissent of Butler and two other Justices, that the Court was "not impressed by the argument that... all doubts should be resolved in favor of the taxpayer"). Although the canon generally laid dormant in federal courts for more than fifty years after White, it has recently regained favor with Justices Stevens and Thomas, both of whom discussed it in a 2001 Supreme Court opinion. See United Dominion Indus., Inc. v. United States, 532 U. S 822, 839 (2001) (Thomas, J., concurring) (arguing that the Court "should be inclined to rely on the traditional canon that construes revenue-raising laws against their drafter");
506. id. at 839 n. 1 (Stevens, J., dissenting) (noting that Justice Thomas "accurately points to a tradition of cases construing 'revenue-raising laws' against their drafter"). Moreover, the canon is still invoked relatively frequently by a number of state courts. E.g., Ex parte Healthsouth Corp., 978 So. 2d 745, 756 (Ala. 2007);
507. Ordlock v. Franchise Tax Bd., 135 P.3d 628, 633 (Cal. 2006);
508. Maas Bros., Inc. v. Dickinson, 195 So. 2d 193, 198 (Fla. 1967);
509. Tax Appeal of Dir. of Taxation v. Med. Underwriters of Cal., 166 P.3d 353, 368 (Haw. 2007);
510. In re 1605 Book Center, Inc., 631 N. E.2d 86, 88 (N. Y. 1994);
511. Qwest Corp. v. City of Bellevue, 166 P.3d 667, 673 (Wash. 2007).
512. Brown, supra note 17, at 54.
513. Id. at 105.