Hallows Lecture 2012

Barnette, the Roosevelt Appointees, and the Progressive Embrace of Judicial Review

Hon. Jeffrey S. Sutton
U.S. Court of Appeals for the Sixth Circuit, Adjunct Professor of Law at The Ohio State University, and Lecturer in Law at Harvard University

February 28, 2012
4:30 p.m.
1 CLE CREDIT Applied for

In Board of Education v. Barnette (1943), the U.S. Supreme Court held that the First Amendment protected students unwilling on religious grounds to salute the American flag. The 6-3 decision overturned Minersville School District v. Gobitis, a 7-2 decision only three years earlier. Appointees of Franklin D. Roosevelt were central in this drama: Robert H. Jackson wrote for the Court in Barnette, over the dissent of Felix Frankfurter, who had authored Gobitis but found himself abandoned by William O. Douglas and Hugo L. Black. The lecture will discuss how this reversal of course happened so quickly and why it marked a turning point away from the progressive opposition to many forms of judicial review.

The Hon. Jeffrey S. Sutton serves on the U.S. Court of Appeals for the Sixth Circuit. He is an Adjunct Professor of Law at The Ohio State University and a Lecturer in Law at Harvard University.

Before his appointment to the federal bench in 2003, Judge Sutton worked in private practice in Columbus, Ohio, and as Solicitor of the State of Ohio, arguing a dozen cases in the U.S. Supreme Court. A graduate of Williams College and holder of a law degree from Ohio State, he clerked for the late Judge Thomas J. Meskill of the Second Circuit and Justice Antonin Scalia and the late Justice Lewis F. Powell at the U.S. Supreme Court.