Revisiting Justice George Sutherland, the Nineteenth Amendment, and Equal Rights for Women

• Author: David E. Bernstein
• Position: University Professor, Antonin Scalia Law School, George Mason University
• Pages: 143-161

Revisiting Justice George Sutherland, the

Nineteenth Amendment, and Equal Rights for

Women

DAVID E. BERNSTEIN*

ABSTRACT

Justice George Sutherland was a strong supporter of women’s rights. Among

other things, as a Senator from Utah he was Congress’ leading supporter of the

Nineteenth Amendment. But Sutherland’s record on women’s rights has long

been obscured by his undeserved reputation as a reactionary.

Part I of this Article discusses Sutherland’s argument in Adkins v. Children’s

Hospital that, in light of passage of the Nineteenth Amendment, women were

entitled to the same level of liberty of contract as men, including the liberty to

bargain for wages.

Part II of this Article reviews the dismissive attitude historians have taken

towards Sutherland’s egalitarian reasoning and rhetoric in Adkins. As dis-

cussed in Part II, this dismissiveness neglects Sutherland’s pre-judicial record

of support for women’s rights.

Part III of this Article reviews several speeches Sutherland gave in support of

the Nineteenth Amendment, with the purpose of trying to better understand his

support for women’s rights.

Among other contributions made by this Article, it is the first to note that

Justice Sutherland’s wife, Rosamond Lee Sutherland, was a strong public sup-

porter of women’s suffrage. Mrs. Sutherland may have influenced her husband’s

perspective regarding women’s rights.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

I. SUTHERLAND’S OPINION IN ADKINS V. CHILDREN’S HOSPITAL . . . . . 145

II. HISTORIANS, SUTHERLAND, AND THE SEXISM OF “PROTECTIVE”

LABOR LEGISLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

III. SUTHERLAND’S SPEECHES ON BEHALF OF WOMEN’S SUFFRAGE . . . 155

A. Senate Speech in 1914 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

* University Professor, Antonin Scalia Law School, George Mason University. The author thanks

fellow participants in the Georgetown Center for the Constitution’s colloquium commemorating the

100th anniversary of the adoption of the Nineteenth Amendment for their helpful comments and

suggestions. © 2022, David E. Bernstein.

143

B. Speech at Women’s Suffrage Meeting in 1915 . . . . . . . . . . . . 158

C. Senate Speech in 1916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

INTRODUCTION

Historians and legal scholars have often described Justice George Sutherland,

who served on the Supreme Court from 1923 to 1938, as a reactionary, pro-lais-

sez-faire ideologue. This is quite an unfair assessment of Sutherland, who was a

far more subtle thinker and much more moderate in ideology than his reputation

suggests.

1

Further complicating Sutherland’s reactionary reputation is his liberalism (for

his day) regarding women’s rights. Sutherland was the Senate’s most vigorous

proponent of the Nineteenth Amendment when he served as a Senator from Utah.

In 1916, he pressed Republican presidential candidate Charles Evan Hughes to

express support for the amendment.

2

Woman Suffrage is Favored by Hughes, SALT LAKE TRIBUNE, Aug. 1, 1916, https://newspapers.

lib.utah.edu/ark:/87278/s6f2066d [https://perma.cc/NB4U-R2GM].

Sutherland was also involved in the drafting

of the proposed Equal Rights Amendment.

3

On the Supreme Court, he wrote two

opinions denouncing women-only minimum wage laws as discriminatory.

4

In

doing so, Sutherland argued that the Nineteenth Amendment established that

women were no longer properly subject to special civic and economic disabilities

solely because of their sex.

Part I of this Article reviews Sutherland’s 1923 opinion for the Court in Adkins

v. Children’s Hospital

5

and the contemporary reaction to that opinion. Adkins

invalidated the District of Columbia’s women-only minimum wage law. Part I

focuses on Sutherland’s argument in Adkins that women are entitled to the same

level of liberty of contract as men, including the liberty to bargain for wages.

Part II of this Article discusses the dismissive attitude historians have taken

towards Sutherland’s egalitarian reasoning and rhetoric in Adkins. Many histori-

ans have refused to take Sutherland’s professed support for women’s legal equal-

ity at face value. They see it instead as a cover for what they consider reactionary

motives. As discussed in Part II, this dismissiveness neglects Sutherland’s pre-

1. For more favorable assessments of Justice Sutherland’s jurisprudence, see HADLEY ARKES, THE

RETURN OF GEORGE SUTHERLAND (1997); Samuel R. Olken, Justice Sutherland Reconsidered, 62 VAND.

L. REV. 639 (2009); Samuel R. Olken, The Business of Expression: Economic Liberty, Political

Factions and the Forgotten First Amendment Legacy of Justice George Sutherland, 10 WM. & MARY

BILL RTS. J. 249, 270–73 (2002); Samuel R. Olken, Justice George Sutherland and Economic Liberty:

Constitutional Conservatism and the Problem of Factions, 6 WM. & MARY BILL RTS. J. 1 (1997).

2.

3. Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the

Family, 115 HARV. L. REV. 947, 1014 (2002).

4. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 413 (1937) (Sutherland, J., dissenting); Adkins v.

Children’s Hosp., 261 U.S. 525, 561 (1923).

5. 261 U.S. 525 (1923).

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