Harold Hitz Burton (June 22, 1888 – October 28, 1964) was an American politician and lawyer. He served as the 45th mayor of Cleveland, Ohio, as a U.S. senator from Ohio, and as an associate justice of the Supreme Court of the United States.
Born in Boston, Burton practiced law in Cleveland after graduating from Harvard Law School. After serving in the United States Army during World War I, Burton became active in Republican Party politics and won election to the Ohio House of Representatives. 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 successfully nominated Burton to the Supreme Court. Burton served on the Court until 1958, when he was succeeded by Potter Stewart.
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 (1954).
Early life
Harold Hitz Burton was born in Jamaica Plain, Massachusetts, 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 (1902–1921), reporting to the president. He taught at MIT before being selected as dean. As a former explorer, Burton had accompanied Robert Peary on several expeditions to the North Pole.
Harold's mother died young. In 1906, his father married Lena Yates, a poet and artist from England 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 (1909–1968), and Alexander Ross Burton. was quarterback of the football team, and graduated summa cum laude. His roommate and Delta Kappa Epsilon fraternity (Theta chapter) brother was Owen Brewster, later a U.S. Senator from Maine. Burton went on to Harvard Law School, graduating in 1912.
Felix Arnold Burton became an architect after also attending Bowdoin. The Burton brothers and J. Edgar Hoover were second cousins on their mothers' side. Their common great-grandparents were Johannes (Hans) Hitz, first Swiss 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 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. He later worked for Utah Light and Traction, and then for Idaho Power Company and Boise Valley Traction Company, both in Boise, Idaho.
Military service
Burton's interest in military service was evident from his high school years at West Newton, where military training was part of the curriculum. He aspired to attend the United States Naval Academy but was prevented from doing so due to a slight heart murmur. Instead, he attended Bowdoin College and later Harvard Law School, but his fascination with military affairs persisted. 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.
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, 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 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 and Associate Justices Tom C. Clark, Sherman Minton, and Stanley Forman Reed. These five voted together 75 percent of the time in non-unanimous decisions. However, beginning with the appointment of Earl Warren 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 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 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 to testimony before congressional committees. He also joined the majority in Ullmann v. United States, 350 U.S. 422 (1956), an important decision which upheld the Immunity Act of 1954 (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 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 (who had joined his dissent in Slochower), Burton's narrow procedural approach in Beilan won over Justices Felix Frankfurter and John Marshall Harlan II and (with the support of new Justice Charles Evans Whittaker), 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 1958.
In one of his last opinions in the area, Burton voted to limit the application of the Smith Act in Yates v. United States, 354 U.S. 298 (1957). The majority had overturned the conviction of seven individuals using the "clear and present danger" 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. 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, 330 U.S. 1 (1947), Justice Hugo Black'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, and Wiley Blount Rutledge 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. 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: "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." 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, 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" doctrine in Plessy v. Ferguson, 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. 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 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 during the post-oral argument conference 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, 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 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 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, 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, 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, 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. 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.
He died on October 28, 1964, in Washington, D.C., from complications arising from Parkinson's disease, kidney failure, and pulmonary trouble. His remains were interred at Highland Park Cemetery in Cleveland.
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 has 750 items including documents concerning 47 judicial opinions. The Hiram College Archives collection holds 69 items. The Manuscript Division of the Library of Congress has 187 ft. (120,000 items) consisting mainly of correspondence and legal files. The Western Reserve Historical Society 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.