Morality and Power in the Modern Administrative State

This book has as its focus a scholarly judge, George Sutherland, and is written by a scholarly academic, Hadley Arkes, the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College. But The Return of George Sutherland is both something more and something less than a work of historical scholarship. Something more because Arkes uses Sutherland’s “natural rights” jurisprudence as the foundation of a much broader constitutional commentary that ranges over contemporary as well as historical issues of regulation, delegated administrative power, and executive authority in foreign affairs. Something less because this political and philosophical agenda prevents Arkes from providing a full discussion of Sutherland’s career as a lawyer, Republican senator from Utah from 1910 to 1916, and associate justice of the United States Supreme Court from 1922 to 1938.

In this regard, consider for a moment Arkes’s treatment of Sutherland’s position on women’s legal rights, the discussion that opens this carefully crafted volume. Its placement was probably designed to capture the attention of liberal academics who might be tempted to dismiss out of hand a volume on Sutherland, one of the conservative “Four Horsemen” on the New Deal Court. Sutherland, like many westerners, was a firm advocate of woman suffrage. He introduced the (Susan B.) Anthony Amendment in the United States Senate and, in a public address in Washington in 1915, condemned the “arbitrary division of the citizenship of the country upon the sole ground that one class is made of men, and should therefore rule, and the other class is made up of women, who should, therefore be ruled” (p. 10). Moreover, Arkes insists, Sutherland’s opinions on the Court were consistent with this position. Thus he argues that the famous Adkins cases striking down a minimum wage law for women in the District of Columbia (Adkins v. Lyons; Adkins v. Children’s Hospital, 1923) reflected a similar commitment to sexual equality. And indeed in one of his opinions Sutherland explicitly rejected “the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not be lawfully imposed in the case of men under similar circumstances” (p. 13).

As it turns out, this apparent celebration of Sutherland as a man ahead of his time (as an advocate of “equal-rights” feminism) is not quite the whole story. Tucked away in Arkes’s text, and explained away as “exceptions,” are those decisions by Sutherland in which the justice took a paternalistic stand, upholding laws that protected women in “hazardous or strenuous” jobs or deflected them from “work that carried moral risks—as, for example, in saloons or nightclubs, at late hours” (p. 14).

Then and now, Sutherland’s blend of libertarianism and protectionism with respect to women’s legal rights is not unusual, and is embraced by many feminists. But it is a qualified stance and, as a matter of argument, it complicates Arkes’s enthusiastic and polemical use of Sutherland as a suffragist and quasi-feminist. More important, as a matter of scholarship, this position demands analysis in greater depth. Why is the “moral risk” of saloon work for women a more pressing consideration for Sutherland than the rights to “freedom of contract” and equal protection that were upheld in Adkins and were so important to him and the conservative judges of his generation? Why can morals be regulated but not wages? And, with respect to Arkes’s commentary, it is important to know whether in a jurisprudence of “natural rights” the different genders are to have different rights. Having raised these issues for argumentative purposes, Arkes does not provide a scholarly resolution.

But no matter. The core of Arkes’s concerns lie elsewhere: in using Sutherland’s views on the proper powers of government to establish a “moral foundation” for conservative jurisprudence. Ironically, as Arkes points out, this agenda arrays him (and Sutherland) against those present-day conservative judges...