This justice’s story is told through the reading shelf: the best accounts of the life and the tenure are mapped, with recommendations, under Go Deeper.
This justice’s story is told through the reading shelf: the best accounts of the life and the tenure are mapped, with recommendations, under Go Deeper.
The opinions that defined this tenure are cited, with context, on the reading shelf — see the Go Deeper tab for the cases and the books that tell their story.
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 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.