Most scholars have viewed Justice George Sutherland as a conservative jurist who opposed government regulation because of his adherence to laissez-faire economics and Social Darwinism, or because of his devotion to natural rights. In this Article, Professor Olken analyzes these widely held misperceptions of Justice Sutherland's economic liberty jurisprudence, which was based not on socio-economic theory, but on historical experience and common law. Justice Sutherland, consistent with the judicial conservatism of the Lochner era, wanted to protect individual rights from the whims of political factions and changing democratic majorities. The Lochner era differentiation between government regulations enacted for the public welfare and those for the benefit of certain groups illuminates this underlying tenet of Justice Sutherland's jurisprudence. Professor Olken also examines Justice Sutherland's work prior to his years on the Court, his strict construction of constitutional limitations, his view of the judiciary's role in protecting individual rights, and his commitment to equal operation of the law. The ultimate irony in Justice Sutherland's jurisprudence is that his strong aversion to factions and his failure to understand changing industrial and social conditions, in some instances, actually reinforced economic inequalities.
Samuel R. Olken, Justice George Sutherland and Economic Liberty: Constitutional Conservatism and the Problem of Factions, 6 Wm. & Mary Bill Rts. J. 1 (1997).