Solid Man

One day the late great Supreme Court Justice Oliver Wendell Holmes twirked his sweeping cavalry mustache, drawled to his chubby Irish protege, Tommy Corcoran :

"Sonny, that fellow is on the other side but I admire him more than any other man. That man is a monolith. There are no seams that the frost can get through. He is of one piece."

That man was Pierce Butler, who died one day last week, just before dawn. With this 220-lb., 6-foot-2-inch monolith died the last hopes of those who believe that the frost is getting through the seams of the U. S. Constitution. With four New Dealers on the Supreme Court bench and a fifth to take Pierce Butler's place, snowy-whiskered Chief Justice Charles Evans Hughes will no longer control the balance of power.

Pierce Butler was a poor boy, born near Northfield, Minn., on March 17, 1866, but he had no Lincolnian tenderness for those in humble circumstances. His own bitter struggle to the top only taught him that those who were successful need not be held responsible for those who failed.

In a characteristic judicial opinion he wrote: "Should all the rewards which are due to foresight, wisdom and enterprise of the men who conceived and constructed wisely be transferred by legislative authority to others?"

Wrestling milk-cans on cold Minnesota mornings while his college classmates slept snugly, "Fierce" Butler thrust his way painfully on & up, became by the century's turn a crack railroad lawyer in the days when railroads were among the biggest U. S. corporations. To Wall Street, to conservatives, to Catholics he was a big name in 1922, when President Harding appointed him to the highest Court.

But to the U. S. public he was only a name until he wrote one of his first Supreme Court decisions--the Panhandle Oil Co. case. His decision: the Panhandle Oil Co. need not pay a Mississippi State gas tax on sales made to the U. S. Coast Guard, because the company's part in such sales made it a "Federal instrumentality" and thus it could not be taxed.

With ex-Justice George Sutherland he concurred in two other now-famous decisions which typified the conservatives' views: the 1927 journeymen stonecutters' case, the 1930 Baltimore Street Railway case. In the first the conservatives granted employers an injunction against union stonecutters who refused to work on nonunion stone shipped into their territory. In the second, conservatives ruled that a fare fixed by the State of Maryland, which permitted the railway a 6 1/4% rate of return, was "confiscatory," that the company was entitled to a return of 7 1/2% or more.

Pierce Butler's most-criticized decision was one he wrote in the Indianapolis Water Co. case, which established the practice of using "reproduction cost new" of a plant as the basis for valuation in cases where high rates were attacked. Too, Pierce Butler was with the conservative majority which held that the New York State minimum-wage law for women was unconstitutional.

Little wonder was it when Franklin Roosevelt came to Washington with his New Deal that Pierce Butler was regarded as head hatchet-man for the conservatives. The score-sheet bore out this feeling: On the 14 major New Deal Cases, Pierce Butler voted 13 times against, once for.

In pre-New Deal days, Justice Holmes, reading an 8-to-1 decision holding constitutional a Virginia law requiring sterilization of third-generation defectives, dryly noted, "Three generations of imbeciles are enough. Justice Butler dissents."

None enjoyed this jest better than ponderous, granitic Roman Catholic Pierce Butler. The man who died alone in Washington's Garfield Memorial Hospital last week was as solid as arctic ice, but a friend to his friends, an honest foe to his foes, a tender father to his incurably ill daughter Margaret. Legends accumulated around softer men, not around Pierce Butler--except about his enthusiastic, notorious golf (he never broke 110), which he endured with almost masochistic resignation.

In the court which "Zeus" Hughes molded into a harddriving, efficient agency of government, Justice Butler was two invaluable things--a workhorse and a judicial craftsman. All jobs need professionals, plowmen who can drive their furrow in hard ground, and cut that furrow straight, deep and clean. Such a hard-working plowman was Pierce Butler, carrying the burden and heat of the day for his conservative colleagues, while Justice Van Devanter smiled blandly, Justice Sutherland worked sporadically, and Justice McReynolds contented himself with indignant snorts.

As the black casket of the only millionaire on the Court rested beneath six wavy-flamed candles in the gloom of St. Matthews Church, the man most mentioned last week as Pierce Butler's successor could jingle all his wealth in his jeans at any time. Frank Murphy, once Mayor of Detroit, High Commissioner to the Philippines, now Attorney General of the U. S., was freely nominated by the Palace Janizariat to Butler's seat before the black drapes were placed there.

Franklin Roosevelt, now in no mood to hurry, announced he did not intend to appoint a successor to Justice Butler until next January.

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