Harold Hitz Burton
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Harold Hitz Burton (June 22, 1888 – October 28, 1964) was an American politician and lawyer. He served as the 45th
mayor In many countries, a mayor is the highest-ranking official in a Municipal corporation, municipal government such as that of a city or a town. Worldwide, there is a wide variance in local laws and customs regarding the powers and responsibilitie ...
of
Cleveland Cleveland is a city in the U.S. state of Ohio and the county seat of Cuyahoga County. Located along the southern shore of Lake Erie, it is situated across the Canada–U.S. maritime border and approximately west of the Ohio-Pennsylvania st ...
,
Ohio Ohio ( ) is a U.S. state, state in the Midwestern United States, Midwestern region of the United States. It borders Lake Erie to the north, Pennsylvania to the east, West Virginia to the southeast, Kentucky to the southwest, Indiana to the ...
, as a
U.S. Senator The United States Senate is a chamber of the bicameral United States Congress; it is the upper house, with the U.S. House of Representatives being the lower house. Together, the Senate and House have the authority under Article One of the ...
from Ohio, and as an
associate justice of the Supreme Court of the United States An associate justice of the Supreme Court of the United States is a Justice (title), justice of the Supreme Court of the United States, other than the chief justice of the United States. The number of associate justices is eight, as set by the J ...
. Born in
Boston Boston is the capital and most populous city in the Commonwealth (U.S. state), Commonwealth of Massachusetts in the United States. The city serves as the cultural and Financial centre, financial center of New England, a region of the Northeas ...
, Burton practiced law in Cleveland after graduating from
Harvard Law School Harvard Law School (HLS) is the law school of Harvard University, a Private university, private research university in Cambridge, Massachusetts. Founded in 1817, Harvard Law School is the oldest law school in continuous operation in the United ...
. After serving in the
United States Army The United States Army (USA) is the primary Land warfare, land service branch of the United States Department of Defense. It is designated as the Army of the United States in the United States Constitution.Article II, section 2, clause 1 of th ...
during
World War I World War I or the First World War (28 July 1914 – 11 November 1918), also known as the Great War, was a World war, global conflict between two coalitions: the Allies of World War I, Allies (or Entente) and the Central Powers. Fighting to ...
, Burton became active in Republican Party politics and won election to the
Ohio House of Representatives The Ohio House of Representatives is the lower house of the Ohio General Assembly, the state legislature of the U.S. state of Ohio; the other house of the bicameral legislature being the Ohio Senate. The House of Representatives first met in ...
. After serving as the mayor of Cleveland, Burton won election to the United States Senate in 1940. After the retirement of Associate Justice Owen J. Roberts, President
Harry S. Truman Harry S. Truman (May 8, 1884December 26, 1972) was the 33rd president of the United States, serving from 1945 to 1953. As the 34th vice president in 1945, he assumed the presidency upon the death of Franklin D. Roosevelt that year. Subsequen ...
successfully nominated Burton to the Supreme Court. Burton served on the Court until 1958, when he was succeeded by
Potter Stewart Potter Stewart (January 23, 1915 – December 7, 1985) was an American lawyer and judge who was an associate justice of the United States Supreme Court from 1958 to 1981. During his tenure, he made major contributions to criminal justice reform ...
. Burton was known as a dispassionate, pragmatic, somewhat plodding jurist who preferred to rule on technical and procedural rather than constitutional grounds. He was also seen as an affable justice who helped ease tension on the court during an extremely acrimonious time. He wrote the majority opinion in '' Joint Anti-Fascist Refugee Committee v. McGrath'' (1951) and '' Lorain Journal Co. v. United States'' (1951). He also helped shape the Court's unanimous decision in ''
Brown v. Board of Education ''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision of the United States Supreme Court that ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the ...
'' (1954).


Early life

Harold Hitz Burton was born in
Jamaica Plain, Massachusetts Jamaica Plain is a Neighborhoods in Boston, neighborhood of in Boston, Massachusetts, United States. Settled by Puritans seeking farmland to the south, it was originally part of Roxbury, Massachusetts, Roxbury. The community seceded from Roxbur ...
, the second son of Anna Gertrude (Hitz) and Alfred Edgar Burton. His older brother was named Felix Arnold Burton. Harold's father was an engineer and the first Dean of Student Affairs at the
Massachusetts Institute of Technology The Massachusetts Institute of Technology (MIT) is a Private university, private research university in Cambridge, Massachusetts, United States. Established in 1861, MIT has played a significant role in the development of many areas of moder ...
(1902-1921), reporting to the president. He taught at MIT before being selected as dean. As a former explorer, Burton had accompanied
Robert Peary Robert Edwin Peary Sr. (; May 6, 1856 – February 20, 1920) was an American explorer and officer in the United States Navy who made several expeditions to the Arctic in the late 19th and early 20th centuries. He was long credited as being ...
on several expeditions to the
North Pole The North Pole, also known as the Geographic North Pole or Terrestrial North Pole, is the point in the Northern Hemisphere where the Earth's rotation, Earth's axis of rotation meets its surface. It is called the True North Pole to distingu ...
. Barbara Elleman, ''Virginia Lee Burton: A Life in Art''
Houghton Mifflin Harcourt, 2002, pp. 7-9
Harold's mother died young. In 1906, his father married Lena Yates, a poet and artist from England"Virginia Lee Burton"
Gloucester Lyceum & Sawyer Free Library
who later took the name of Jeanne D'Orge. They met that year on a walking trip in France. Yates published children's books as Lena Dalkeith. The couple had three children: Christine,
Virginia Virginia, officially the Commonwealth of Virginia, is a U.S. state, state in the Southeastern United States, Southeastern and Mid-Atlantic (United States), Mid-Atlantic regions of the United States between the East Coast of the United States ...
(1909–1968), and Alexander Ross Burton. The half siblings developed warm relationships over time. Virginia became an author and illustrator. Burton attended
Bowdoin College Bowdoin College ( ) is a Private college, private liberal arts colleges in the United States, liberal arts college in Brunswick, Maine. It was chartered in 1794. The main Bowdoin campus is located near Casco Bay and the Androscoggin River. In a ...
, where he was elected to the
Phi Beta Kappa The Phi Beta Kappa Society () is the oldest academic honor society in the United States. It was founded in 1776 at the College of William & Mary in Virginia. Phi Beta Kappa aims to promote and advocate excellence in the liberal arts and sciences, ...
honor society, was quarterback of the football team, and graduated summa cum laude. His roommate and
Delta Kappa Epsilon Delta Kappa Epsilon (), commonly known as ''DKE'' or ''Deke'', is one of the oldest Fraternities and sororities, fraternities in the United States, with fifty-six active chapters and five active Colony (fraternity or sorority), colonies across No ...
fraternity (Theta chapter) brother was Owen Brewster, later a U.S. Senator from
Maine Maine ( ) is a U.S. state, state in the New England region of the United States, and the northeasternmost state in the Contiguous United States. It borders New Hampshire to the west, the Gulf of Maine to the southeast, and the Provinces and ...
. Burton went on to
Harvard Law School Harvard Law School (HLS) is the law school of Harvard University, a Private university, private research university in Cambridge, Massachusetts. Founded in 1817, Harvard Law School is the oldest law school in continuous operation in the United ...
, graduating in 1912. Felix Arnold Burton became an architect after also attending Bowdoin. The Burton brothers and
J. Edgar Hoover John Edgar Hoover (January 1, 1895 – May 2, 1972) was an American attorney and law enforcement administrator who served as the fifth and final director of the Bureau of Investigation (BOI) and the first director of the Federal Bureau o ...
were second cousins on their mothers' side. Their common great-grandparents were Johannes (Hans) Hitz, first
Swiss Swiss most commonly refers to: * the adjectival form of Switzerland * Swiss people Swiss may also refer to: Places * Swiss, Missouri * Swiss, North Carolina * Swiss, West Virginia * Swiss, Wisconsin Other uses * Swiss Café, an old café located ...
Consul General to the United States, and his wife Anna Kohler.


Marriage and family

Burton married Selma Florence Smith in 1912. They had four children: Barbara (Mrs. Charles Weidner), William (who served on the USS Samuel B. Roberts (DE-413) during WWII, in the
Ohio House of Representatives The Ohio House of Representatives is the lower house of the Ohio General Assembly, the state legislature of the U.S. state of Ohio; the other house of the bicameral legislature being the Ohio Senate. The House of Representatives first met in ...
and was a noted trial lawyer), Deborah (Mrs. Wallace Adler), and Robert (a distinguished attorney and counsel to athletes).


Early career

After graduation and marriage, Burton moved with his wife to Cleveland and began the practice of law there. However, in 1914, he joined his wife's uncle as a company attorney for Utah Power and Light Company in
Salt Lake City Salt Lake City, often shortened to Salt Lake or SLC, is the capital and most populous city of the U.S. state of Utah. It is the county seat of Salt Lake County, the most populous county in the state. The city is the core of the Salt Lake Ci ...
. He later worked for Utah Light and Traction, and then for Idaho Power Company and Boise Valley Traction Company, both in
Boise, Idaho Boise ( ) is the List of capitals in the United States, capital and List of cities in Idaho, most populous city of the U.S. state of Idaho. As of the 2020 United States census, 2020 census, there were 235,685 people residing in the city. Loca ...
.Harold Hitz Burton biography at the Ohio Judicial Center
, accessed March 2, 2011


Military service

Burton's interest in military service was evident from his high school years at West Newton, where
military training Military education and training is a process which intends to establish and improve the capabilities of military personnel in their respective roles. Military training may be voluntary or compulsory duty. It begins with recruit training, proceed ...
was part of the curriculum. He aspired to attend the
United States Naval Academy The United States Naval Academy (USNA, Navy, or Annapolis) is a United States Service academies, federal service academy in Annapolis, Maryland. It was established on 10 October 1845 during the tenure of George Bancroft as United States Secre ...
but was prevented from doing so due to a slight heart murmur. Instead, he attended
Bowdoin College Bowdoin College ( ) is a Private college, private liberal arts colleges in the United States, liberal arts college in Brunswick, Maine. It was chartered in 1794. The main Bowdoin campus is located near Casco Bay and the Androscoggin River. In a ...
and later
Harvard Law School Harvard Law School (HLS) is the law school of Harvard University, a Private university, private research university in Cambridge, Massachusetts. Founded in 1817, Harvard Law School is the oldest law school in continuous operation in the United ...
, but his fascination with military affairs persisted. Anticipating the United States's involvement in
World War I World War I or the First World War (28 July 1914 – 11 November 1918), also known as the Great War, was a World war, global conflict between two coalitions: the Allies of World War I, Allies (or Entente) and the Central Powers. Fighting to ...
, Burton attended a military training camp in
Salt Lake City Salt Lake City, often shortened to Salt Lake or SLC, is the capital and most populous city of the U.S. state of Utah. It is the county seat of Salt Lake County, the most populous county in the state. The city is the core of the Salt Lake Ci ...
in 1916. After the U.S. declared war in April 1917, he enlisted in the
United States Army The United States Army (USA) is the primary Land warfare, land service branch of the United States Department of Defense. It is designated as the Army of the United States in the United States Constitution.Article II, section 2, clause 1 of th ...
in May 1917. He attended officer training at the
Presidio A presidio (''jail, fortification'') was a fortified base established by the Spanish Empire mainly between the 16th and 18th centuries in areas under their control or influence. The term is derived from the Latin word ''praesidium'' meaning ''pr ...
in San Francisco, graduating as a second lieutenant after three months. Assigned to the 361st Infantry Regiment of the 91st Infantry Division at Camp Lewis near
Tacoma, Washington Tacoma ( ) is the county seat of Pierce County, Washington, United States. A port city, it is situated along Washington's Puget Sound, southwest of Seattle, southwest of Bellevue, Washington, Bellevue, northeast of the state capital, Olympia ...
, Burton commanded Company A. He trained his men rigorously, aiming for high performance standards. Burton developed a close relationship with his regimental commander, Colonel William Davis, who became a mentor to him. In June 1918, Burton was sent to France ahead of his division to attend a field officer school. Upon completing the course, he rejoined his regiment near
Saint-Mihiel Saint-Mihiel () is a commune in the Meuse department in the Grand Est region in Northeastern France. Geography Saint-Mihiel lies on the banks of the river Meuse. History A Benedictine abbey was established here in 708 or 709 by Count Wulfoalde ...
in August 1918. He was appointed as the regimental
operations officer Military operations is a concept and application of military science that involves planning the operations for the projected maneuvering forces' provisions, services, training, and administrative functions—to allow them to commence, insert, t ...
, a new role responsible for ensuring that orders were effectively communicated and executed throughout the regiment. Burton first saw combat during the
Meuse–Argonne Offensive The Meuse–Argonne offensive (also known as the Meuse River–Argonne Forest offensive, the Battles of the Meuse–Argonne, and the Meuse–Argonne campaign) was a major part of the final Allies of World War I, Allied Offensive (military), offe ...
. On September 26, 1918, he and Colonel Davis left their command post to follow the first wave of the offensive. Burton was responsible for overseeing movements and maintaining communications within the regiment, often risking his life to deliver orders under heavy fire. The unit included the Cleveland Grays. During this period, he narrowly avoided several artillery attacks and once captured two German snipers despite being unarmed. Promoted to
captain Captain is a title, an appellative for the commanding officer of a military unit; the supreme leader or highest rank officer of a navy ship, merchant ship, aeroplane, spacecraft, or other vessel; or the commander of a port, fire or police depa ...
, Burton also served as assistant regimental adjutant. After eight days of intense combat, the regiment was relieved on October 4, 1918. The 91st Division was then transferred to
Belgium Belgium, officially the Kingdom of Belgium, is a country in Northwestern Europe. Situated in a coastal lowland region known as the Low Countries, it is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeas ...
to assist French forces. During operations near
Audenarde Oudenaarde (; ; in English sometimes ''Oudenarde'') is a Belgian city and municipality in the Flemish province of East Flanders. The municipality comprises the city of Oudenaarde proper and the towns of Bevere, Edelare, Eine, Ename, Heurne ...
, Burton took command of the regiment's forces in the city after Colonel Davis was killed by artillery fire. He established his command post in the town hall, continuing operations despite ongoing shelling. For his service, Burton received several decorations. He was awarded the
Belgian Croix de guerre The ( French) or ''Oorlogskruis'' ( Dutch) is a military decoration of the Kingdom of Belgium established by royal decree on 25 October 1915. It was primarily awarded for bravery or other military virtue on the battlefield. The award was reesta ...
on December 17, 1918, "for extraordinary heroism and gallantry in action during the advance from the Lys to beyond the Scheldt River in the vicinity of Audenarde, Belgium." He also received a Meritorious Citation Certificate from General John J. Pershing "for exceptionally meritorious and conspicuous services during the Argonne Offensive." After the
Armistice An armistice is a formal agreement of warring parties to stop fighting. It is not necessarily the end of a war, as it may constitute only a cessation of hostilities while an attempt is made to negotiate a lasting peace. It is derived from t ...
on November 11, 1918, Burton remained in Europe for occupation duties until 1919. Upon returning to the United States, he was honorably discharged at Camp Sherman in Ohio, rejoined his family in Cleveland, resumed his law practice, and taught at Western Reserve University Law School. Continuing his military involvement, Burton served as a captain in the
Ohio National Guard The Ohio National Guard comprises the Ohio Army National Guard and the Ohio Air National Guard. The commander-in-chief of the Ohio Army National Guard is the List of governors of Ohio, governor of the U.S. state of Ohio. If the Ohio Army Nation ...
with the 331st Infantry Regiment, 83rd Infantry Division, for nearly two decades. In 1921, he authored the regimental history of the 361st Infantry Regiment, titled ''600 Days' Service'' and joined several veterans' organizations, including the Army and Navy Union, the
Veterans of Foreign Wars The Veterans of Foreign Wars (VFW), formally the Veterans of Foreign Wars of the United States, is an Voluntary association, organization of United States Armed Forces, United States war veterans who fought in wars, Military campaign, campaig ...
, and the
American Legion The American Legion, commonly known as the Legion, is an Voluntary association, organization of United States, U.S. war veterans headquartered in Indianapolis, Indiana. It comprises U.S. state, state, Territories of the United States, U.S. terr ...
.


Politics

In the late 1920s, Burton entered politics as a Republican. He was elected to the East Cleveland Board of Education in 1927 and to the
Ohio House of Representatives The Ohio House of Representatives is the lower house of the Ohio General Assembly, the state legislature of the U.S. state of Ohio; the other house of the bicameral legislature being the Ohio Senate. The House of Representatives first met in ...
in 1928. After serving briefly in the Ohio House, he became law director for the City of Cleveland in 1929 before returning to private practice in 1932. In 1935, Burton was elected
mayor of Cleveland The mayor of Cleveland is the head of the executive branch of Local government in the United States, government of the Cleveland, City of Cleveland, Ohio. As the chief executive in Cleveland's Mayor–council government#Strong-mayor government fo ...
. He worked on issues of continuing assimilation of immigrant populations, supporting industry in the city, and dealing with transportation needs. Re-elected twice, he served until entering the
U.S. Senate The United States Senate is a chamber of the bicameral United States Congress; it is the upper house, with the U.S. House of Representatives being the lower house. Together, the Senate and House have the authority under Article One of the ...
in 1941. For his decorous personal life and opposition to
organized crime Organized crime is a category of transnational organized crime, transnational, national, or local group of centralized enterprises run to engage in illegal activity, most commonly for profit. While organized crime is generally thought of as a f ...
, he was dubbed "the
Boy Scout A Scout, Boy Scout, Girl Scout or, in some countries, a Pathfinder is a participant in the Scout Movement, usually aged 10–18 years, who engage in learning scoutcraft and outdoor and other special interest activities. Some Scout organizatio ...
Mayor." In 1940, Burton was elected to the U.S. Senate, with 52.3% of the vote, defeating John McSweeney. He served on the Senate Special Committee to Investigate the National Defense Program, which monitored the U.S. war effort during World War II. Also on the committee was then-Senator
Harry S. Truman Harry S. Truman (May 8, 1884December 26, 1972) was the 33rd president of the United States, serving from 1945 to 1953. As the 34th vice president in 1945, he assumed the presidency upon the death of Franklin D. Roosevelt that year. Subsequen ...
.


Supreme Court


Nomination

Justice Owen J. Roberts announced his resignation from the Supreme Court on June 30, 1945, effective July 31, 1945. President Truman decided, as a bipartisan gesture, to appoint a Republican to replace him. He selected Burton as someone whom he knew and respected. Burton's nomination was presented to the Senate Judiciary Committee on September 18, and the Senate unanimously approved it the next day. Burton resigned from the Senate on September 30, 1945, and was sworn in as an associate justice of the Supreme Court on October 1. Burton was the last sitting member of Congress to be appointed to the Court. (
Sherman Minton Sherman "Shay" Minton (October 20, 1890 – April 9, 1965) was an American politician and jurist who served as a U.S. senator from Indiana and later became an associate justice of the Supreme Court of the United States; he was a member of the ...
, a former senator, was appointed in 1949.)


Judicial philosophy and working style

According to biographer Eric W. Rise, Burton appeared to lack an overarching judicial philosophy. He favored
judicial restraint Judicial restraint is a judicial interpretation that recommends favoring the ''status quo'' in judicial activities and is the opposite of judicial activism. Aspects of judicial restraint include the principle of '' stare decisis'' (that new de ...
and most of his decisions were based on narrow procedural grounds rather than the Constitution. His judicial restraint, however, was informed by his political views, not by a legal philosophy, and he tended to defer to legislative and executive branch judgments because he agreed with them personally. This pragmatism won him the respect of his fellow justices, and served as a unifying influence on the Court when the other justices were split on constitutional issues but could come together on technical or procedural grounds. From 1945 to 1953, Burton was usually in the centrist majority on the court, sometimes finding himself in a slightly more conservative majority on some issues. He was part of the "Vinson bloc", which included Chief Justice
Fred M. Vinson Frederick Moore Vinson (January 22, 1890 – September 8, 1953) was an American attorney and politician who served as the 13th chief justice of the United States from 1946 until his death in 1953. Vinson was one of the few Americans to have ser ...
and Associate Justices
Tom C. Clark Thomas Campbell Clark (September 23, 1899June 13, 1977) was an American lawyer who served as the 59th United States Attorney General, United States attorney general from 1945 to 1949 and as Associate Justice of the Supreme Court of the United St ...
, Sherman Minton, and
Stanley Forman Reed Stanley Forman Reed (December 31, 1884 – April 2, 1980) was an American lawyer and jurist who served as an Associate Justice of the U.S. Supreme Court from 1938 to 1957. He also served as U.S. Solicitor General from 1935 to 1938. Born in Ma ...
. These five voted together 75 percent of the time in non-unanimous decisions. However, beginning with the appointment of
Earl Warren Earl Warren (March 19, 1891 – July 9, 1974) was an American attorney and politician who served as the 30th governor of California from 1943 to 1953 and as the 14th Chief Justice of the United States from 1953 to 1969. The Warren Court presid ...
as Chief Justice in 1953, and more so after the appointment of William J. Brennan Jr. in 1956, Burton found himself increasingly in the minority. Burton biographer Mary Frances Berry has written that Burton knew "he was not brilliant and that writing came hard", and therefore not only worked very hard on his decisions but attempted to show this work by outlining all the precedents he had considered before reaching a conclusion. Burton insisted on having all precedents researched before writing his opinions, wrote the first draft of his opinions himself, and was well known for working long hours in his office. His hard work earned him respect and praise from his colleagues, but his working style also limited his judicial output. Outside the Court, the press and some prominent legal scholars depicted Burton as mediocre, plodding, a weak legal mind, and more concerned with social activities. Burton was also very well-liked by all his colleagues, and his easy-going nature helped to ease tensions on the Court.


Cold War, loyalty oath, and subversion rulings

The
Cold War The Cold War was a period of global Geopolitics, geopolitical rivalry between the United States (US) and the Soviet Union (USSR) and their respective allies, the capitalist Western Bloc and communist Eastern Bloc, which lasted from 1947 unt ...
led state and federal governments to enact a wide variety of laws and regulations aimed at curbing espionage and subversion. Burton consistently showed deference to government restrictions on free speech, voting to uphold government action 27 out of 28 times. He also wrote several important decisions. His basic approach toward these questions was judicial deference, as exemplified in his strong dissent in '' Duncan v. Kahanamoku'', 327 U.S. 304 (1946). His first important majority opinion came in '' Joint Anti-Fascist Refugee Committee v. McGrath'', 341 U.S. 123 (1951), where a group had challenged the authority of the
U.S. Attorney General The United States attorney general is the head of the United States Department of Justice and serves as the chief law enforcement officer of the federal government. The attorney general acts as the principal legal advisor to the president of the ...
to unilaterally declare groups to be Communist. Despite a significant split among the justices, Burton wrote a plurality decision in which he disposed of the case on technical grounds. He argued that the listing was technically legal but that in a court of law the Attorney General had to offer evidence of subversion, which he had not. Burton also joined the majority in three important Fifth Amendment cases. In '' Emspak v. United States'', 349 U.S. 190 (1955), he voted with the majority to extend the Fifth Amendment right against
self-incrimination In criminal law, self-incrimination is the act of making a statement that exposes oneself to an accusation of criminal liability or prosecution. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where ...
to testimony before congressional committees. He also joined the majority in ''
Ullmann v. United States ''Ullmann v. United States'', 350 U.S. 422 (1956), was a United States Supreme Court case in which the court held that a person given immunity from prosecution Legal immunity, or immunity from prosecution, is a legal status wherein an individu ...
'', 350 U.S. 422 (1956), an important decision which upheld the
Immunity Act of 1954 Immunity may refer to: Medicine * Immunity (medical), resistance of an organism to infection or disease * ''Immunity'' (journal), a scientific journal published by Cell Press Biology * Immune system Engineering * Radiofrequence immunity ...
(which stripped the right against self-incrimination from persons given immunity from federal prosecution). Burton's narrow procedural approach proved important in '' Beilan v. Board of Education'', 357 U.S. 399 (1958). Two years earlier, six justices had formed a majority in '' Slochower v. Board of Higher Education of New York City'', 350 U.S. 551 (1956), holding it unconstitutional for a school board to fire an employee for exercising their Fifth Amendment rights against
self-incrimination In criminal law, self-incrimination is the act of making a statement that exposes oneself to an accusation of criminal liability or prosecution. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where ...
. In ''Beilan'', a teacher was dismissed not for exercising Fifth Amendment rights but for refusing to answer a question at all. Despite the retirement of
Sherman Minton Sherman "Shay" Minton (October 20, 1890 – April 9, 1965) was an American politician and jurist who served as a U.S. senator from Indiana and later became an associate justice of the Supreme Court of the United States; he was a member of the ...
(who had joined his dissent in ''Slochower''), Burton's narrow procedural approach in ''Beilan'' won over Justices
Felix Frankfurter Felix Frankfurter (November 15, 1882 – February 22, 1965) was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, advocating judicial restraint. Born in Vienna, Frankfurter im ...
and
John Marshall Harlan II John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1955 to 1971. Harlan is usually called John Marshall Harlan II to distinguish hi ...
and (with the support of new Justice
Charles Evans Whittaker Charles Evans Whittaker (February 22, 1901 – November 26, 1973) was an Associate Justice of the United States Supreme Court from 1957 to 1962. After working in private practice in Kansas City, Missouri, he was nominated for the United States D ...
), Burton was able form a majority upholding the school district's action. At times, Burton's pragmatism could lead to important legislative outcomes. He joined the 7-to-1 majority in '' Jencks v. United States'', 353 U.S. 657 (1957), in which the Court reversed the conviction of a labor leader under federal loyalty laws because the defendant was not given permission to view the evidence against him. Burton agreed with the majority, although he added the caveat that such evidence should first be reviewed by a district court judge to ensure that no national security secrets were revealed. Burton's view was subsequently adopted by Congress with passage of the
Jencks Act In the United States, the Jencks Act () requires the prosecutor to produce a verbatim statement or report made by a government witness or prospective government witness (other than the defendant), but only before cross or adverse examination. Jen ...
in 1958. In one of his last opinions in the area, Burton voted to limit the application of the
Smith Act The Alien Registration Act, popularly known as the Smith Act, 76th United States Congress, 3rd session, ch. 439, , is a United States federal statute that was enacted on June 28, 1940. It set criminal penalties for advocating the overthrow of ...
in ''
Yates v. United States ''Yates v. United States'', 354 U.S. 298 (1957), was a case decided by the Supreme Court of the United States that held that the First Amendment protected radical and reactionary speech, unless it posed a "clear and present danger". Background ...
'', 354 U.S. 298 (1957). The majority had overturned the conviction of seven individuals using the "
clear and present danger ''Clear and Present Danger'' is a political thriller novel, written by Tom Clancy and published on August 17, 1989. A sequel to '' The Cardinal of the Kremlin'' (1988), main character Jack Ryan becomes acting Deputy Director of Intelligence i ...
" First Amendment doctrine by concluding they had advocated violent overthrow of the government as an abstract doctrine, not as advocacy to action. Burton wrote an opinion concurring in the outcome, but cast his vote on narrow procedural grounds.


Church and state

Generally, Burton favored a strict
separation of church and state The separation of church and state is a philosophical and Jurisprudence, jurisprudential concept for defining political distance in the relationship between religious organizations and the State (polity), state. Conceptually, the term refers to ...
. But his pragmatic approach to law sometimes caused him to dissent from majorities favoring a strict separation. For example, in ''
Everson v. Board of Education ''Everson v. Board of Education'', 330 U.S. 1 (1947), was a landmark decision of the United States Supreme Court that applied the Establishment Clause of the First Amendment to state law. Before this decision, the clause, which states, "Congress ...
'', 330 U.S. 1 (1947), Justice
Hugo Black Hugo Lafayette Black (February 27, 1886 – September 25, 1971) was an American lawyer, politician, and jurist who served as a U.S. Senator from Alabama from 1927 to 1937 and as an Associate Justice of the Supreme Court of the United States, ass ...
's 5-4 majority opinion held that while the Constitution required a strict separation between church and state, it was constitutionally permissible for a school district to reimburse parents when their children rode public school buses to religious schools so long as all such parents and religions were treated equally. Burton initially was predisposed to declare the law constitutional. Heavy lobbying from justices Felix Frankfurter,
Robert H. Jackson Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was an American lawyer, jurist, and politician who served as an associate justice of the U.S. Supreme Court from 1941 until his death in 1954. He had previously served as Un ...
, and
Wiley Blount Rutledge Wiley Blount Rutledge Jr. (July 20, 1894 – September 10, 1949) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1943 to 1949. The ninth and final justice appointed by President Franklin ...
changed his mind. Burton dissented in the case not because he disagreed with Black's emphasis on the strict separation between church and state but because he believed that the state law violated the strict separation doctrine laid out by Black. The following year, Burton joined Black in the majority in '' McCollum v. Board of Education'', 333 U.S. 203 (1948). At issue was a state law which gave students "release time" to attend religious instruction on school grounds during the school day. The majority struck down the law as a violation of the First Amendment. Burton joined the majority only after Black agreed not to extend his ruling to release time programs that involved off-site religious instruction. '' Zorach v. Clauson'', 343 U.S. 306 (1952), was factually similar to ''McCollum'', although there was no instruction on school grounds. Although Burton's law clerks argued that the school was tacitly instructing children to attend religious classes, Burton disagreed, characterizing the dismissal as akin to excusing a child from school for a doctor's appointment. Burton joined the 6-to-3 majority.


Criminal procedure

Burton was deferential to the state on criminal procedure and law-and-order issues. Beginning with '' Betts v. Brady'', 316 U.S. 455 (1942), the Supreme Court had ruled in a wide range of cases that except in cases of illiteracy, mental incapacity, or especially complicated cases, defendants did not have an absolute right to be informed of their right to counsel or to have counsel appointed for them by the state. The Court had opportunity to revisit ''Betts'' in '' Bute v. Illinois'', 333 U.S. 640 (1948), where a felon appealed his conviction because the trial court had not advised him of his right to counsel and because the plaintiff felt he had been rushed to trial, claims he felt violated constitutional guarantees to a fair trial and due process of law. Burton wrote for a 5-to-4 majority that the Constitution did not require a state to advise a defendant about his rights to counsel, or to provide such counsel, if the crime is not a capital offense. Applying the 14th Amendment to the states in this area "would disregard the basic and historic power of the states to prescribe their own local court procedures," Burton wrote. Yet, ''Bute'' was notable for carving out a capital-case exemption to ''Betts''. Much criticized at the time for being inconsistent with ''Betts'', the ''Bute'' decision unintentionally established grounds for the Supreme Court to whittle away at ''Betts'', so that by 1962 some legal scholars were already arguing the Court had effectively overruled ''Betts''. ''Betts'' and ''Bute'' were unanimously overruled in ''
Gideon v. Wainwright ''Gideon v. Wainwright'', 372 U.S. 335 (1963), was a List of landmark court decisions in the United States, landmark Supreme Court of the United States, U.S. Supreme Court decision in which the Court ruled that the Sixth Amendment to the United S ...
'', 372 U.S. 335 (1963). Another case decided the same year as ''Bute'' illustrates Burton's reliance on personal views as a guide to court action. Gilbert Thiel suffered a mental breakdown and leapt from a moving
Southern Pacific Railroad The Southern Pacific (or Espee from the railroad initials) was an American Railroad classes#Class I, Class I Rail transport, railroad network that existed from 1865 to 1996 and operated largely in the Western United States. The system was oper ...
passenger car, severely injuring himself. Thiel argued that railway personnel should have stopped him. The trial court blocked hourly-wage workers from being selected for the jury, which Thiel alleged biased the jury against him. Burton was powerfully motivated by a need to protect the Supreme Court's reputation, which he felt would be sullied if it approved such a distasteful practice. The majority in '' Thiel v. Southern Pacific Co.'', 328 U.S. 217 (1946), narrowed its opinion to address only the facts regarding jury selection, and therefore did not decide whether the jury actually was biased against Thiel. This helped to win Burton's approval as well. Burton's belief that criminal procedure should be left to the states influenced his views in other cases as well. In '' Griffin v. Illinois'', 351 U.S. 12 (1956), a majority held that an indigent criminal defendant could not be denied transcripts of the trial. Burton wrote a dissent, joined by justices Minton, Harlan, and
Reed Reed or Reeds may refer to: Science, technology, biology, and medicine * Reed bird (disambiguation) * Reed pen, writing implement in use since ancient times * Reed (plant), one of several tall, grass-like wetland plants of the order Poales * Re ...
, in which he strongly defended the federal nature of criminal procedure. Burton also wrote a stinging dissent in '' Louisiana ex rel. Francis v. Resweber'', 329 U.S. 459 (1947). The state of
Louisiana Louisiana ( ; ; ) is a state in the Deep South and South Central regions of the United States. It borders Texas to the west, Arkansas to the north, and Mississippi to the east. Of the 50 U.S. states, it ranks 31st in area and 25 ...
attempted to execute convicted murderer Willie Francis on May 3, 1946, but the employee and assistant were both drunk while setting up the electric chair, and Francis did not die. The state sought to execute him again, but Francis claimed this violated the
Double Jeopardy Clause The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: ''" r shall any person be subject for the same offence to be twice put in jeopardy of Capital punishment, life or Amputation#Criminal penalty, ...
of the Fifth Amendment. The state's failure to execute Francis the first time should mark the end of the attempt, Burton wrote. Additional attempts constituted
cruel and unusual punishment Cruel and unusual punishment is a phrase in common law describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisdi ...
: "It is unthinkable that any state legislature in modern times would enact a statute expressly authorizing capital punishment by repeated applications of an electric current separated by intervals of days or hours until finally death shall result." It was an opinion that showed "considerable foresight" regarding the Supreme Court's future capital punishment jurisprudence.


Antitrust

Burton's greatest contribution to Supreme Court jurisprudence came in the area of
antitrust Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
law. In '' American Tobacco Co. v. United States'', 328 U.S. 781 (1946), Burton wrote for a near-unanimous court (Justice Rutledge had written a separate concurrence) that the
Sherman Antitrust Act The Sherman Antitrust Act of 1890 (, ) is a United States antitrust law which prescribes the rule of free competition among those engaged in commerce and consequently prohibits unfair monopolies. It was passed by Congress and is named for S ...
barred the mere existence of combinations or conspiracies which created monopolistic or oligopolistic market power, regardless of whether that power was actually used. Legal scholar Eugene V. Rostow declared Burton's decision would usher in a new era of swift, effective antitrust enforcement. But Burton's analysis cut both ways. In '' United States v. Columbia Steel Company'', 334 U.S. 495 (1948), the same reasoning was used to allow
U.S. Steel The United States Steel Corporation is an American steel company based in Pittsburgh, Pennsylvania. It maintains production facilities at several additional locations in the U.S. and Central Europe. The company produces and sells steel products, ...
to buy out the much smaller Columbia Steel. Even though Columbia Steel was the largest steel manufacturer on the West Coast, Burton joined the majority in holding that the acquisition did not violate the
Clayton Antitrust Act The Clayton Antitrust Act of 1914 (, codified at , ), is a part of United States antitrust law with the goal of adding further substance to the U.S. antitrust law regime; the Clayton Act seeks to prevent anticompetitive practices in their inci ...
because Columbia Steel represented such a small percentage of overall American steel production. The ''Columbia Steel'' decision shocked antitrust advocates. Yet, in '' Lorain Journal Co. v. United States'', 342 U.S. 143 (1951), Burton wrote for a unanimous court that a monopoly could not use its power to retain its monopoly position. In that case, the ''Lorain Journal'' newspaper attempted to use its market power to prevent advertisers from placing ads with a new, competing radio station. The case became noted for extending the federal government's antitrust power to local markets. In '' Times-Picayune Publishing Co. v. United States'', 345 U.S. 594 (1953), the majority held that the ''Times-Picayune'' newspaper did not violate the Sherman Antitrust Act by forcing advertisers to buy space in both its evening and morning editions. Burton (joined by Black, Douglas, and Minton) strongly dissented. The Sherman Act barred all monopolistic market power, he argued, whether it was used to create or maintain a monopoly, or whether it was used to harm the public (through monopolistic pricing) or users (as in the ''Times-Picayune'' "must buy" case). Burton wrote the lone dissent in '' Toolson v. New York Yankees, Inc.'', 346 U.S. 356 (1953). A majority of the justices had disposed of the case in a ''per curiam'' decision, citing the ruling in '' Federal Baseball Club v. National League'', 259 U.S. 200 (1922). Citing extensive statistics about the farm system, broadcasting revenues, and national advertising campaigns, Burton concluded it was unreasonable to claim that major league baseball was not engaged in interstate commerce. He strongly criticized the majority for incorrectly construing ''Federal Baseball Club'', and said the majority was wrong to assume that because the Sherman Antitrust Act did not explicitly cover baseball that baseball was intended to be exempt. A notable exception to the broad application of antitrust law came in Burton's dissent in ''United States v. E. I. du Pont de Nemours & Co.'', 353 U.S. 586 (1957). The
DuPont Dupont, DuPont, Du Pont, duPont, or du Pont may refer to: People * Dupont (surname) Dupont, also spelled as DuPont, duPont, Du Pont, or du Pont is a French surname meaning "of the bridge", historically indicating that the holder of the surname re ...
chemical company had purchased a substantial bloc of stock in
General Motors General Motors Company (GM) is an American Multinational corporation, multinational Automotive industry, automotive manufacturing company headquartered in Detroit, Michigan, United States. The company is most known for owning and manufacturing f ...
. Subsequently, General Motors purchased most of its paints and fabrics from DuPont. A majority of the court held that this
vertical integration In microeconomics, management and international political economy, vertical integration, also referred to as vertical consolidation, is an arrangement in which the supply chain of a company is integrated and owned by that company. Usually each ...
constituted a violation of the Clayton Antitrust Act. Burton, dissenting, was highly skeptical that the Clayton Act applied to vertical integration, and strongly criticized the majority's logic concerning market power. Burton found that DuPont simply didn't have the market power the majority claimed it did. The dissent drew widespread praise from legal scholars.


Racial segregation

Burton's other major contribution to Supreme Court jurisprudence came in the area of racial segregation. Burton had been a member of the
National Association for the Advancement of Colored People The National Association for the Advancement of Colored People (NAACP) is an American civil rights organization formed in 1909 as an interracial endeavor to advance justice for African Americans by a group including W. E. B. Du&nbs ...
from 1941 to 1945, and was a dependable vote for civil rights on the high court. One of the exceptions was his first civil rights case on the Court, '' Morgan v. Virginia'', 328 U.S. 373 (1946). Burton was the lone dissenter in the case, which involved the racial segregation of interstate buses with curtains. Burton argued that, in the absence of a federal statute, each state should be free to establish its own laws on racial segregation. After his vote in ''Morgan'', Court observers believed that Burton could not be counted on to vote to expand or protect civil rights. It surprised legal analysts, then, when Burton joined the unanimous majority in ''
Shelley v. Kraemer ''Shelley v. Kraemer'', 334 U.S. 1 (1948), is a landmark United States Supreme Court case that held that racially restrictive housing covenants (deed restrictions) cannot legally be enforced. The case arose after an African-American family purch ...
'', 334 US 1 (1948), a landmark case that held courts could not enforce racially-restrictive real estate covenants. In a string of votes over the next three years, Burton voted to undermine the "
separate but equal Separate but equal was a legal doctrine in United States constitutional law, according to which racial segregation did not necessarily violate the Fourteenth Amendment to the United States Constitution, which nominally guaranteed "equal protectio ...
" doctrine in ''
Plessy v. Ferguson ''Plessy v. Ferguson'', 163 U.S. 537 (1896), was a landmark U.S. Supreme Court decision ruling that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality, a doctrine that ...
'', 163 U.S. 537 (1896). He joined the unanimous majority in '' Sweatt v. Painter'', 339 U.S. 629, in 1950, which held that "separate but equal" professional legal education was unconstitutional. Heman Marion Sweatt, an African American man, was refused admission to the all-white
University of Texas School of Law The University of Texas School of Law (Texas Law) is the Law school in the United States, law school of the University of Texas at Austin, a public university, public research university in Austin, Texas. According to Texas Law’s American Bar ...
. One of the first cases to find that "separate but equal" was not equal, the case deeply influenced the Court's opinion in ''
Brown v. Board of Education ''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision of the United States Supreme Court that ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the ...
'' four years later. During the ''Sweatt'' deliberations, Burton came to the conclusion that ''Plessy v. Ferguson'' should be reversed. He informed the other justices about his conclusion the during post-oral argument
conference A conference is a meeting, often lasting a few days, which is organized on a particular subject, or to bring together people who have a common interest. Conferences can be used as a form of group decision-making, although discussion, not always d ...
on ''Sweatt''. The same year, Burton joined the unanimous majority in '' McLaurin v. Oklahoma State Regents'', 339 U.S. 637, which racially desegregated all graduate schools in the United States on essentially the same grounds as ''Sweatt''. Burton subsequently wrote the unanimous majority opinion in '' Henderson v. United States'', 339 U.S. 816 (1950). The case involved interstate travel on a passenger train. Henderson, an African-American federal worker, held a ticket that cost the same and allegedly provided the same level of service as a ticket sold to a white passenger. Nevertheless, Henderson was denied seating in the dining car after attendants seated white passengers at the tables reserved for blacks. Although the ''Sweatt'' and ''McLaurin'' courts had ruled on constitutional grounds, Burton hesitated to do so if there were procedural or technical grounds available. In ''Henderson'', Burton was able to form a unanimous majority by basing his decision on the
Interstate Commerce Act of 1887 The Interstate Commerce Act of 1887 is a United States federal law that was designed to regulate the railroad industry, particularly its monopolistic practices. The Act required that railroad rates be "reasonable and just", but did not empowe ...
, rather than the 14th Amendment. By 1953, Burton's thinking on racial segregation had evolved to embrace a constitutional attack on ''Plessy''. That year, the Supreme Court took up '' Terry v. Adams'', 345 U.S. 461, a case in which a whites-only private political club dominated the local Democratic
primary election Primary elections or primaries are elections held to determine which candidates will run in an upcoming general election. In a partisan primary, a political party selects a candidate. Depending on the state and/or party, there may be an "open pr ...
in an electoral district where Republicans were not competitive. This system served to disenfranchise black voters. The federal district and appellate courts had upheld the constitutionality of the system, persuaded that the club was purely private and thus no state action was involved. At the first post-oral argument conference held by the justices, Burton was adamant that the Supreme Court reverse and declare the practice unconstitutional. The justices took a widely varying approach to the case. The opinion of the Court was authored by Hugo Black, and joined only by Burton and Douglas. Frankfurter, personally at odds with Black, authored a separate opinion agreeing with Black's, but which he refused to have listed as "concurring". Clark authored a concurrence, which was joined by Vinson, Reed, and Jackson. Surprisingly, Burton joined Black in declaring the whites-only club in violation of the 15th Amendment. Black won over all but one justice (Minton) by agreeing to remand the case to the district court for a solution, but not specifying what that solution should be.


Role in ''Brown v. Board of Education''

Burton played a crucial role in the Supreme Court's decision in ''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954). Several cases alleging unconstitutional racial discrimination in elementary and secondary public schools were coming before the court in 1952. In the first sign that Burton was ready to reverse ''Plessy'', on June 7 he voted with Clark and Minton to grant
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of a prerogative writ in England, issued by a superior court to direct that the recor ...
to both ''Brown'' and another case, '' Briggs v. Elliott'', 342 U.S. 350 (1952). The Supreme Court subsequently agreed to also hear ''
Bolling v. Sharpe ''Bolling v. Sharpe'', 347 U.S. 497 (1954), is a landmark United States Supreme Court case in which the Court held that the Constitution prohibits segregated public schools in the District of Columbia. Originally argued on December 10–11, 1952 ...
'', 347 U.S. 497 (1954), '' Davis v. County School Board of Prince Edward County'', 103 F. Supp. 337 (1952), and '' Gebhart v. Belton'', 91 A.2d 137 (Del. 1952). Oral argument in all five cases was heard in early December 1952. The justices held their first post-oral argument judicial conference on the cases on December 13. Burton, Black, Douglas, and Minton had all come out against racial segregation in the public schools during the conference. Clark seemed unsure, but it appeared that he could be persuaded to join the majority. Burton himself noted in his diary that he felt the court was likely to vote 6-to-3 to bar racial discrimination in schools, but not on constitutional grounds. Other justices were not so sure. William O. Douglas believed that five justices would vote to uphold ''Plessy'': Vinson, Clark, Frankfurter, Jackson and Reed. Among these, Frankfurter and Jackson exhibited the most doubt about ''Plessy''. Douglas even worried that a 5-to-4 decision would be reached in which schools would be given a decade or more to bring unequal African American schools up to par. Vinson was a fence-sitter of a different kind: he was deeply troubled by the effect a desegregation order would have on the nation. It was likely that, even if Vinson joined a majority in barring "separate but equal" in public schools, he would do so only on narrow, technical grounds—leading to a plurality decision, a fragmented court, and a ruling lacking in legal and moral weight. Frankfurter, who personally believed racial segregation to be "odious", argued for the cases to be held over to the next term and reargued. A majority of the court agreed. Some hoped for changes in the political landscape that would make a decision easier, while others worried about the effect a divided opinion would have. On June 8, the Supreme Court issued its order, scheduling reargument for October 12, 1953. Chief Justice Fred Vinson died unexpectedly of a heart attack on September 8, 1953. On September 30, President Eisenhower nominated Earl Warren, the outgoing Republican governor of California, to replace Vinson as Chief Justice. The news was not unexpected; Warren had declined a fourth term as governor on September 2, and he had long been seen as a favorite for a Supreme Court nomination. Warren's was a
recess appointment In the United States, a recess appointment is an appointment by the President of the United States, president of a Officer of the United States, federal official when the United States Senate, U.S. Senate is in Recess (motion), recess. Under the ...
, which meant he would have to give up his seat unless the Senate confirmed him before the end of its next session. Warren was sworn in as Chief Justice on October 5. Warren's nomination was sent to the Senate on January 11, 1954. Senator
William Langer William "Wild Bill" Langer (September 30, 1886November 8, 1959) was an American lawyer and politician who served as the 17th governor of North Dakota from 1932 to 1934 and the 21st governor from 1937 to 1939. His governorship was demarcated by ...
, chairman of the Senate Judiciary Committee, kept the nomination bottled up for seven weeks in order to hold hearings on unsubstantiated charges that Warren was a Marxist and controlled by the California liquor lobby. Warren's nomination was forwarded to the Senate on February 24 on a favorable 12-to-3 vote, and the Senate confirmed him on March 1 on a voice vote after just eight minutes of discussion. Even before oral reargument, Warren was convinced that ''Plessy'' had to be reversed and racial discrimination in public education ended. Warren perceived Burton as a key ally in overturning ''Plessy''. Immediately after his swearing-in ceremony, Warren worked hard to become as friendly as possible with Burton, quietly seeking him out before any of the more senior justices. (Had Warren's actions become widely known, he would have offended court tradition and the other justices.) Reargument in ''Brown'' and the other cases was set for early December 1953. The first post-oral reargument conference was held December 12, at which time Warren made it very clear he would join Black, Burton, Douglas, and Minton in voting to overturn ''Plessy''. Warren believed a unanimous decision in ''Brown'' was necessary to win public acceptance for the decision. Stanley Forman Reed appeared to Warren to be the justice most comfortable with segregation and ''Plessy'', but even Reed admitted on December 12 that what was constitutional in 1896 might not be in 1953, due to changing circumstances. Warren went to work on Reed immediately. During the lunch break on December 12, Warren invited Reed to lunch, accompanied by Burton, Black, Minton, and Douglas. The social pressure on Reed continued for the next five days, as he lunched daily with Warren, Burton, Black, and Minton. Burton wholeheartedly supported Warren's attempt to forge a unanimous majority, and Warren accurately judged Burton to be his most valuable ally. Burton not only pushed for pragmatic solutions, which helped win over Reed, but proved to be articulate, passionate, and persuasive—which few on the Court expected. As the justices continued to debate its approach to ''Brown'' and the other cases in conferences, in memoranda, and privately among themselves, Burton worked to alleviate fears about implementation by talking freely about his experiences as mayor of Cleveland. Burton had ended racial discrimination in healthcare by hiring African American nurses to work in whites-only hospitals. This had gone relatively smoothly, and black nurses earned widespread respect among white citizens for their professionalism. The efforts of Warren and Burton paid off. The Supreme Court handed down a unanimous decision in ''Brown'' on May 17, 1954. Pragmatically, Warren declined to overturn ''Plessy'', but argued that it did not apply to the field of public education. Implementation of the decision was left up to district courts, at a later date. During part of his time on the Supreme Court, Burton kept notes on all judicial conferences as well as a diary in which he documented the discussions he had with other justices. Burton's diary has proven to be an invaluable resource in understanding how Earl Warren achieved unanimity on ''Brown''.


Retirement

By June 1957, Burton began suffering from significant shaking in his hands. As the October 1957 term began, his handwriting became difficult to read, and he began taking longer afternoon naps. He was diagnosed with
Parkinson's disease Parkinson's disease (PD), or simply Parkinson's, is a neurodegenerative disease primarily of the central nervous system, affecting both motor system, motor and non-motor systems. Symptoms typically develop gradually and non-motor issues become ...
. The shaking in his left arm had become so severe by the start of 1958 that he decided to retire from the Supreme Court. He informed President
Dwight D. Eisenhower Dwight David "Ike" Eisenhower (born David Dwight Eisenhower; October 14, 1890 – March 28, 1969) was the 34th president of the United States, serving from 1953 to 1961. During World War II, he was Supreme Commander of the Allied Expeditionar ...
of his decision in March. Worried about other domestic and international events, Eisenhower asked Burton to consider staying one more year, and make no public announcement. Burton agreed. In the meantime, arrangements were made to give Burton's law clerks positions at the
United States Department of Justice The United States Department of Justice (DOJ), also known as the Justice Department, is a United States federal executive departments, federal executive department of the U.S. government that oversees the domestic enforcement of Law of the Unite ...
should Burton retire before the end of the October 1958 Supreme Court term. Burton's condition worsened, and in June 1958 he was advised by his doctors to retire. Burton informed Chief Justice Earl Warren of his decision, and Warren urged him to stay on the Court at least until September 30. A week later, Attorney General William P. Rogers met with Burton to discuss rumors that Burton was retiring. Once more, Burton reiterated his desire to leave the Court, and Rogers, too, asked him to remain until September 30. Various crises and events conspired to keep Burton from meeting with the president until July 17, at which time Burton privately informed Eisenhower of his intention to resign. (Burton had turned 70 years old on June 22, enabling him to retire at full pay.) Eisenhower asked Burton to keep the resignation private for a time. In part, this was because Eisenhower wanted time to consider a replacement without public pressure. Additionally, Eisenhower was worried that a resignation now might create unnecessary complications for the Supreme Court, which had agreed to hear ''
Cooper v. Aaron ''Cooper v. Aaron'', 358 U.S. 1 (1958), was a landmark decision of the Supreme Court of the United States that denied the school board of Little Rock, Arkansas the right to delay racial desegregation for 30months. On September12, 1958, the War ...
''. This case concerned the
Little Rock Nine The Little Rock Nine were a group of nine African American students enrolled in Little Rock Central High School in 1957. Their enrollment was followed by the Little Rock Crisis, in which the students were initially prevented from entering th ...
, a group of African American students barred from enrolling at
Little Rock Central High School Little Rock Central High School (LRCH) is an accredited comprehensive education, comprehensive public high school in Little Rock, Arkansas, Little Rock, Arkansas, Secondary education in the United States, United States. The school was the Little ...
by
Orval Faubus Orval Eugene Faubus ( ; January 7, 1910 – December 14, 1994) was an American politician who served as the List of governors of Arkansas, 36th Governor of Arkansas from 1955 to 1967, as a member of the Democratic Party (United States), D ...
, the
Governor of Arkansas The governor of Arkansas is the head of government of the U.S. state of Arkansas. The Governor (United States), governor is the head of the Executive (government), executive branch of the Politics and government of Arkansas, Arkansas government a ...
. William G. Cooper and other members of the Little Rock school district board of education had alleged they could not implement the Supreme Court's decision in '' Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), because of public hostility and the opposition of Governor Faubus and the state legislature. The case was clearly headed for the Supreme Court: The
United States District Court for the Eastern District of Arkansas The United States District Court for the Eastern District of Arkansas (in case citations, E.D. Ark.) is a federal court in the Eighth Circuit (except for patent claims and claims against the U.S. government under the Tucker Act, which are appea ...
had ruled in favor of the school district, and the NAACP had appealed both to the
United States Court of Appeals for the Eighth Circuit The United States Court of Appeals for the Eighth Circuit (in case citations, 8th Cir.) is a United States federal court with appellate jurisdiction over the following United States district courts: * Eastern District of Arkansas * Western ...
and the
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
(which, on June 30, declined to hear the appeal until the Court of Appeals had ruled but which also had advised the Court of Appeals to rule swiftly—before the school year began). The Supreme Court held a special summer session on September 11 and issued its decision on September 29, after which Burton informed his law clerks and the rest of the Supreme Court of his decision to retire. Burton publicly announced his retirement from the Supreme Court on October 6, 1958. Burton publicly announced that he was suffering from Parkinson's disease. He retired on the advice of physicians, who said the condition might improve without the stress from his Court position. His last day at the Supreme Court was October 13.


Late life

Following his retirement from the Supreme Court, Burton sat by designation for several years on panels of the
United States Court of Appeals for the District of Columbia The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. courts of appeals, ...
. He died on October 28, 1964, in Washington, D.C., from complications arising from Parkinson's disease,
kidney failure Kidney failure, also known as renal failure or end-stage renal disease (ESRD), is a medical condition in which the kidneys can no longer adequately filter waste products from the blood, functioning at less than 15% of normal levels. Kidney fa ...
, and pulmonary trouble. His remains were interred at Highland Park Cemetery in Cleveland.
Supreme Court Historical Society The Supreme Court Historical Society (SCHS) describes itself as "a Washington, D.C.–based private, nonpartisan, not for profit 501(c)(3) membership organization dedicated to preserving and communicating the history of the U.S. Supreme Court, in ...
at
Internet Archive The Internet Archive is an American 501(c)(3) organization, non-profit organization founded in 1996 by Brewster Kahle that runs a digital library website, archive.org. It provides free access to collections of digitized media including web ...
.


Legacy

Cleveland's Main Avenue Bridge was renamed in his honor in 1986. His papers and other memorabilia are primarily in four collections.
Bowdoin College Bowdoin College ( ) is a Private college, private liberal arts colleges in the United States, liberal arts college in Brunswick, Maine. It was chartered in 1794. The main Bowdoin campus is located near Casco Bay and the Androscoggin River. In a ...
has 750 items including documents concerning 47 judicial opinions. The
Hiram College Hiram College ( ) is a private liberal arts college in Hiram, Ohio, United States. It was founded in 1850 as the Western Reserve Eclectic Institute by Amos Sutton Hayden and other members of the Disciples of Christ Church. The college is nonse ...
Archives collection holds 69 items. The Manuscript Division of the
Library of Congress The Library of Congress (LOC) is a research library in Washington, D.C., serving as the library and research service for the United States Congress and the ''de facto'' national library of the United States. It also administers Copyright law o ...
has 187 ft. (120,000 items) consisting mainly of correspondence and legal files. The
Western Reserve Historical Society The Western Reserve Historical Society (WRHS) is a historical society in Cleveland, Ohio. The society operates the Cleveland History Center, a collection of museums in University Circle. The society was founded in 1867, making it the oldest ...
has 10 linear ft. relating mainly to his tenure as mayor of Cleveland; the collection contains correspondence, reports, speeches, proclamations, and newspaper clippings relating to routine administrative matters and topics of special interest during Burton's mayoralty. Other papers repose at various institutions around the country, as part of other collections.


See also

*
List of justices of the Supreme Court of the United States The Supreme Court of the United States is the highest-ranking judicial body in the United States. Its membership, as set by the Judiciary Act of 1869, consists of the chief justice of the United States and eight associate justices, any six of ...
* List of law clerks of the Supreme Court of the United States (Seat 8) * List of members of the American Legion *
List of United States Supreme Court justices by time in office A total of 116 people have served on the Supreme Court of the United States, the highest judicial body in the United States, since it was established in 1789. Supreme Court justices have life tenure, meaning that they serve until they die, resig ...
* United States Supreme Court cases during the Stone Court * United States Supreme Court cases during the Vinson Court * United States Supreme Court cases during the Warren Court


References


Bibliography

* * * * * * * * * * * * * * * * * * * * * * * * * * * * *


Further reading

* Abraham, Henry J., ''Justices and Presidents: A Political History of Appointments to the Supreme Court. 3d. ed.'' (New York: Oxford University Press, 1992). . * Cushman, Clare, ''The Supreme Court Justices: Illustrated Biographies,1789–1995'' (2nd ed.) (
Supreme Court Historical Society The Supreme Court Historical Society (SCHS) describes itself as "a Washington, D.C.–based private, nonpartisan, not for profit 501(c)(3) membership organization dedicated to preserving and communicating the history of the U.S. Supreme Court, in ...
), (Congressional Quarterly Books, 2001) ; . * Forrester, Ray. (October 1945) "Mr. Justice Burton and the Supreme Court" New Orleans: ''
Tulane Law Review The ''Tulane Law Review'', a publication of the Tulane University Law School, was founded in 1916, and is currently published five times annually. The ''Law Review'' has an international circulation. History The ''Law Review'' was started as the ...
''. * Frank, John P., ''The Justices of the United States Supreme Court: Their Lives and Major Opinions'' (Leon Friedman and Fred L. Israel, editors) (Chelsea House Publishers: 1995) , . * Martin, Fenton S. and Goehlert, Robert U., ''The U.S. Supreme Court: A Bibliography'', (Congressional Quarterly Books, 1990). .


External links


Ohio Judicial Center, Harold Hitz Burton.


* ttps://web.archive.org/web/20100410073537/http://www.supremecourthistory.org/history/supremecourthistory_history_assoc_072burton.htm Harold Hitz Burton, Timeline of the Court at* {{DEFAULTSORT:Burton, Harold H. 1888 births 1964 deaths People from Jamaica Plain Politicians from Boston Businesspeople from Boston Republican Party United States senators from Ohio Justices of the Supreme Court of the United States United States federal judges appointed by Harry S. Truman Republican Party members of the Ohio House of Representatives Mayors of Cleveland 20th-century American judges 20th-century mayors of places in Ohio Lawyers from Cleveland Bowdoin College alumni Harvard Law School alumni Military personnel from Massachusetts United States Army personnel of World War I United States Army officers American recipients of the Croix de guerre (Belgium) 20th-century United States senators 20th-century members of the Ohio General Assembly