Pierce Butler

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Pierce Butler
Former Associate Justice of the U.S. Supreme Court
From: December 21, 1922 – November 16, 1939
Nominator Warren G. Harding
Predecessor William R. Day
Successor Frank Murphy
Party Democrat
Spouse(s) Annie M. Cronin
Religion Roman Catholic

Pierce Butler (1866-1939) was an Associate Justice of the U.S. Supreme Court. Appointed by conservative President Warren G. Harding, Butler served on the U.S. Supreme Court from 1923 to 1939. He was a conservative Democrat picked by a Republican, and was opposed by liberals at the time. He became one of the finest Supreme Court Justices ever, notable for dissenting from two of the biggest mistakes of his era: Olmstead (allowing wiretapping without a warrant), and Buck v. Bell (allowing forced sterilization).


Butler became one of the so-called "Four Horsemen" who repeatedly invalidated portions of President Franklin D. Roosevelt's New Deal. The unwillingness of Justice Butler and the others to capitulate to the President's desires led Roosevelt in 1937 to propose his ill-fated plan to pack the Court with additional justices sympathetic to his agenda. FDR never fully recovered from the intensively negative reaction of both parties in rejecting his scheme.

Perhaps intimidated, several of the Four Horsemen soon retired, enabling President Roosevelt to replace them and attain the judicial majority he sought. But Butler did not give his seat to President Roosevelt voluntarily: Butler served until his death in 1939.


Justice Butler's dissent from the famous wiretapping case of Olmstead v. United States, 277 U.S. 438 (1928) opinion demonstrated his insight and provides a unique opportunity to compare him with the more liberal Justices Oliver Wendell Holmes and Louis Brandeis.

Olmstead had been convicted of conducting massive bootlegging in Washington State, in violation of Prohibition. His business sold up to 200 cases of liquor a day, garnering more than two million dollars annually, the equivalent of about $22 million today.

Federal agents secretly wiretapped phone lines of his office in addition to several residences, documenting incriminating information to convict him. In so doing, however, federal agents violated a Washington law against secret wiretaps.

Olmstead appealed his conviction to the U.S. Supreme Court, where the presiding Chief Justice was former President William Howard Taft. Chief Justice Taft and three of the Four Horsemen, along with another justice, upheld the conviction. At the time, the court believed a literal reading of the Fourth Amendment, taking into account the framers' intent, required a physical intrusion onto the premises in question and the seizure of material items. A wiretap taking place outside the house, capturing only intangible conversations, could not fit within the literal interpretation of the Fourth Amendment conceived of by the majority.

Justice Pierce Butler dissented, finding that because "[t]he direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions" therefore "the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words." [emphasis added] And, since telephone communications can contain privileged discussions between "physician and patient, lawyer and client, parent and child, husband and wife" they belong to the participants in the same way that papers (specifically mentioned in the Fourth Amendment) might.

Justice Holmes also dissented, but not because he felt that the Fourth Amendment protected against unlawful wiretaps. Using a principle of judicial economy, Justice Holmes did not reach the constitutional issue. His dissent proposed that evidence obtained unlawfully, should be excluded, a view that was echoed in Mapp v. Ohio.[1]

Justice Brandeis's dissent invoked "man's spiritual nature," but the media prefer to quote his statement that the Constitution confers "the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men." Justice Brandeis provided no authority for his sweeping claim, which seem odd in the context of blatant criminal activity. Do those engaging in crime have a "right to be let alone"? Justice Douglas, in concurring with the pro-abortion decision of Doe v. Bolton, 410 U.S. 179 (1973), relied on Brandeis's sweeping assertion; so did Justice Harry Blackmun in writing that there is a constitutional right to homosexual activity in Bowers v. Hardwick, 478 U.S. 186 (1986).

Pierce Butler, although agreeing in result with Brandeis in Olmstead, did not agree with Brandeis's sweeping claim. Butler also rejected many other mistakes of the Court of his time. Butler was the only dissenter, for example, from Justice Holmes' repugnant upholding of forced sterilization in Buck v. Bell, 274 U.S. 200 (1927). When Justice Holmes declared that "three generations of imbeciles are enough," Butler was the only Justice who objected.


Pierce Butler had been outspoken against liberal professors at the University of Minnesota prior to his nomination. Labor and progressive groups and even his own Senator actively opposed his confirmation. Warren Harding did not seek a stealth nomination, and Butler proved to be perhaps the best Supreme Court Justice ever.