The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights.

• Author: Bond, James E.

Hadley Arkes's The Return of George Sutherland is less a biography of the conservative Supreme Court justice than an extended essay on several major issues of constitutional law through which he issues a clarion call for the restoration of "a jurisprudence of natural rights." The book is thus no traditional "life and letters" portrayal of a justice remembered today, if at all, as one of the "four horsemen" who refused to give constitutional sanction to Franklin Roosevelt's New Deal. Neither does it exemplify the currently more fashionable intellectual biography, though it is the justice's philosophy that intrigues Arkes.

The private record of Sutherland's life is very thin. He left no collection of letters, no diary or journal. He is seldom the subject of private comment in the surviving records of those who knew him. It is no surprise that Arkes cites the Sutherland papers only twice. Neither is the justice's public record as voluminous as a biographer would wish. He served one term in the U.S. House of Representatives before his election in 1905 to the U.S. Senate, where he served until 1922. He made few public speeches. President Warren Harding appointed him to the U.S. Supreme Court in 1922, and he remained there until his retirement in 1938. During his fifteen years on the Court, he wrote 288 opinions. Unlike his more irascible colleague, Justice James McReynolds, the urbane Sutherland dissented infrequently, penning only 33 dissents. Whether writing for the Court or in dissent, he seldom indulged in long philosophical disquisitions.

Still, this slim record suffices to justify Arkes's conclusion that Sutherland "knew long before he ascended the bench the hierarchy of good things that made up the world he would seek to preserve"--a hierarchy "that reason itself disclosed" (p. 292). Indeed, the key to understanding Sutherland, Arkes argues, is his commitment to the natural rights philosophy he had already imbibed by the time he was twenty years old. Writing in his commonplace book in 1882, the young Sutherland quoted the following: "Natural liberty is the right which nature gives to all mankind of disposing of their persons and property after the manner they judge most convenient to their happiness, on the condition...that they do not abuse it in any way to the prejudice of other men" (p. vi).

The burden and message of Arkes's clearly written and carefully argued book are that the Court has undermined Sutherland's hierarchy of values by...