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CHAPTER EIGHT
And On—Murphy and Rutledge
President Roosevelt made four more appointments to the Supreme Court before his death in 1945—Justices Murphy, Byrnes, Jackson, and Rutledge. Justice James F. Byrnes was a former congressman and senator from South Carolina. He served on the Court for only one year. He resigned to fill several important wartime posts under Roosevelt, later became Truman’s Secretary of State, and still later Governor of South Carolina. In recent years he has become one of the Court’s severest critics and his words carry much weight since, as a former justice, he knows whereof he speaks.
Justice Robert H. Jackson, we will consider later, together with those other members of the Court who rendered the decision which promises to keep America torn by racial dissension for years to come.
Justice Frank Murphy was still another of the Roosevelt appointees to the Court who had had no previous judicial experience, unless one counts a stint as judge of the Recorders’ Court in Detroit. Murphy, son of poor immigrant parents, typified the old-time novelist’s conception of the “fighting Irishman,” though his battles were not with his fists. He was born (in 1890) and raised in Michigan, and got his education and his law degree at the University of Michigan. Murphy made himself champion of the so-called “underdog” and, in the process, developed a mystical belief in the soaring star of his own destiny. This belief did not preclude even the presidency of the United States, and he once asked a companion plaintively if he didn’t think it was possible for a Catholic to be elected.
Murphy became the “poor man’s” Mayor of Detroit at the bottom of the depression—just prior to Roosevelt’s first campaign for the presidency. The Mayor’s sympathy extended to the “underprivileged” of all classes. He made Mrs. Eleanor Roosevelt’s hapless brother, Hall Roosevelt, City Comptroller of Detroit. His reward came in the form of appointment by Roosevelt to be Governor-General and then High Commissioner of the Philippines. From that post he was called home by the New Deal politicos to run for Governor of Michigan. During his tenure as governor of that state, one of the most disgraceful episodes in American industrial history took place within Murphy’s jurisdiction, while the “fighting Irishman” sat quietly—and inactively—in the executive mansion at Lansing.
On New Year’s Day, 1937, a strike was called in the great automobile plants of Michigan. Twenty-six thousand men quit work in the General Motors plants. Within the next ten days, 135,000 workers were on strike. But this was no ordinary strike, in which workers, exercising their right to collective bargaining, walked out of the plants and refused to carry on production until their terms were met by the employers, or a compromise reached—at which time they would return to the plants. The workers—or a good number of them—seized the plants. Two weeks after the strike was called, the largest plants in the automobile industry in Michigan—built, maintained, financed, and managed by American private enterprise—were in the hands of the “sit-down” strikers inside the plants.
The famous Michigan sit-down strike was instigated, organized, and carried out by the communists. No less an authority than Benjamin Gitlow, a former communist who once headed the Communist Party in the United States, said in 1948 (in his book The Whole of Their Lives):
The Detroit district of the Communist party holds a unique position in the Communist party organization. Since 1929, the ablest Party organizers have been put in charge of its affairs. . . . In the Detroit district are also to be found some of the oldest and most capable Communist trade union officials and Party organizers, men and women who have been purposely sent there from other districts.
Gitlow pointed out that in the sit-down strikes the communists were trying out a new technique in industrial warfare. They “seized factories by staging sit-down strikes. The country was treated to a preview of things to come, of how the communists intended to seize the factories by occupying them from the inside and converting each factory into a fortress of the Communist revolution.”
The sit-down strikes aroused a country that was generally sympathetic to the aims of labor. What many people could not understand was why the governor of a sovereign American state should sit by and allow the illegal seizure of private property within his state without lifting a finger. Bascom N. Timmons reported (in Garner of Texas) that Vice President Garner went to the President to point out the constitutional issue involved. The Constitution guarantees to each state a republican form of government. Roosevelt admitted he believed the sit-down strikes were illegal. Garner wanted him to say so publicly in the hope it would force Murphy, who owed his election to Roosevelt, to act to preserve republican government in Michigan. Roosevelt refused to make a statement, which brought from the angry Garner the retort that the labor leaders had become bigger men than the President.
The following year, Frank Murphy was defeated for reelection as Governor of Michigan. But this would not shake belief in his star of destiny, because Roosevelt brought him to Washington and made him Attorney-General of the United States. He was welcomed with open arms by the Washington gossip columnists. He was a bachelor who enjoyed squiring pretty women around Washington. He was a convivial party-goer who never took a drink. He had a temper that went well with his red hair. And this “poor man’s friend” and battler for the underprivileged found his bosom pals among the richest of Washington’s society.
Murphy served only twelve months as Attorney-General, during which he went after some of the sacred cows of the Democratic Party. He started prosecutions against Tom Pendergast and sent Moe Annenberg to prison. That star of destiny must have been twinkling very brightly in his mind’s eye, what with the 1940 presidential nominations coming up. But he reckoned without his mentor. There were rumors that Murphy was going to go after Ed Kelly, who controlled the Democratic machine in Chicago, and Frank Hague, who did the same in Jersey City. Roosevelt needed Boss Kelly and Boss Hague to swing a third-term nomination for himself.
In any case, in 1940 Roosevelt named Murphy to a vacancy on the Supreme Court created by the death of Pierce Butler. Familiar with Murphy’s mercurially unjudicious temperament, some wag was led to remark that we would now have “justice tempered with Murphy.” It probably never will be known whether Murphy was elevated to the Court because he was a Catholic (as was Butler), or to remove him from the Justice Department, where he was said thoroughly to have messed up its administrative machinery, or to get him off the necks of Bosses Kelly and Hague. The last explanation seems the most logical.
Once on the Court, Murphy continued his gay life in Washington and among New York’s “café society.” This evidently left him little time for the work of the Court, because he wrote few decisions. He seemed to have little liking for the quiet, secluded atmosphere of the Court and no doubt missed sorely the life of active politics. But, in the Court’s decisions, he invariably followed the lead of Frankfurter. Prior to some feuding—of which more later—that developed among the justices, Frankfurter had Murphy’s vote in every case but one. Generally Murphy could be found in the same “judicial” camp as Frankfurter, Black, and Douglas. He died in 1949, as the result of a heart condition from which he had suffered for some time. However, there are those who believe that what really killed him was the realization that his star had finally flickered out. The Supreme Court post seemed to be about as far as he could go—and that was not what the star had promised. He was in many ways a tragic figure, because he undoubtedly believed implicitly in the New Deal, to which he gave his undying loyalty. His only reward was to be kicked upstairs to a post for which he was totally unfitted.
Roosevelt’s last appointee to the Court—Justice Wiley B. Rutledge—was the first to have had any judicial experience worth mentioning. He was born in Cloverport, Kentucky, in 1894, but went to the University of Wisconsin. He taught school in Indiana, New Mexico, and Colorado, and then, in 1922, got his law degree at the University of Colorado. He served successively as professor of law and then dean of the law school at Washington University. His next job was at the State University of Iowa. From there he had come to Washington in 1939 to serve on the United States Court of Appeals for the District of Columbia—an appointment which was a reward for his thorough New Dealism while he was Dean of the Law School of the State University of Iowa. He had been wholeheartedly for Roosevelt’s court-packing scheme and, when the four conservatives on the High Court did not act to Professor Rutledge’s liking, he cynically remarked that the “Four Horsemen do not know that we had an election.” Presumably his belief that the Court should decide cases not according to the Constitution but according to the election returns earned him his elevation to the highest court in 1943. He died in 1949, so that his tenure on the Court was relatively brief. But it was long enough for the leftists to take him to their hearts, since he voted in 98 percent of the cases with their heroes—Douglas, Black, and Murphy.
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