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Nine years ago, John Ferren started looking for something to do with his spare time. He’d been a judge on the D.C. Court of Appeals for 18 years, but always had a hankering to return to the historical pursuits he’d set aside when he went to Harvard Law School more than 30 years earlier. So Ferren went to the Library of Congress to see if there was any under-researched personage whose papers resided there. “Justice Wiley Rutledge” was the immediate response from then-assistant chief of the Manuscript Division, David Wigdor. Rutledge served on the Supreme Court a mere six and a half years, from 1943 to 1949, but Wigdor assured Ferren the papers would yield a book worth writing. So Wiley Rutledge it was, and Ferren set off on a joyful historical dig that last month resulted in the publication by the University of North Carolina Press of the 548-page book Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge ($39.95). The book is gaining attention in part because the Supreme Court’s recent decisions on the status of enemy combatants have echoed Rutledge’s civil liberties views of more than 50 years earlier. At a Sept. 13 reception at the Supreme Court hosted by the Supreme Court Historical Society, Justice John Paul Stevens pronounced the book “a magnificent job,” mixing both the human and jurisprudential sides of Rutledge, for whom Stevens clerked from 1947 to 1948. “All future judicial biographies should be written by judges,” Stevens decreed. Stevens spoke again about the book in a Chicago speech Sept. 15, describing it as “a superb piece of work that anyone interested in the history of our Court will enjoy immensely.” A heady endorsement for a first-time author, but just one of the pieces of good luck Ferren enjoyed on the path to completing his book. As he began the research, he kept running into people he knows, or knew of, who had some connection with Rutledge. Amazingly Rutledge’s secretary was still alive, as were all but one of Rutledge’s seven Supreme Court law clerks, and Ferren was able to interview them. Two of Rutledge’s three children lived in the D.C. area, and Rutledge’s son-in-law just happened to have photocopied and organized all of the justice’s papers in three-ring notebooks. He made them available to Ferren. “Every few weeks I would pick up some new notebooks and return the last ones,” Ferren says. “The convenience factor was tremendous for my research.” Each new source was more enthusiastic about Rutledge than the last, and Ferren began to gain a fuller picture of the man than he could have derived from his opinions and papers. “I really discovered him in the process,” says Ferren, 67. “It just blossomed as I wrote.” Ferren discovered that Rutledge was a decent and modest man who “until his dying day thought of himself as a dean, not a justice.” Rutledge had headed the law schools at Washington University and the University of Iowa. He died at age 55 after suffering a stroke while on vacation in Maine in September 1949. No extensive biography had been written about Rutledge in part because of his short tenure, but also because, as Ferren puts it, “he was lost among the giants” on the Court of the time, including Justices Harlan Fiske Stone, Hugo Black, William O. Douglas, Felix Frankfurter, and Robert Jackson. On a court of strong egos, Ferren says Rutledge was “the only member both liked and respected by all members of the Court.” That factor was important for Ferren. “I don’t think I could spend that much time on someone I didn’t like.” He hastens to add that the book is not all laudatory. “I put in as much criticism as I could.” One oft-mentioned criticism of Rutledge was about his long-winded opinions. Even Stevens alluded to that in his remarks about the book, recalling a time when he wrote a four-page memo on a case in which Rutledge ended up writing a 40-page opinion. Only one paragraph resembled what Stevens had written for him. Ferren had to set aside his research when he was recruited to become D.C. corporation counsel — the municipal government’s top lawyer — for 19 hectic months beginning in 1997. “I couldn’t do anything on the book then.” But when he returned to the court as a senior judge — with roughly a third of the caseload he’d had before — he resumed the writing with enthusiasm, especially at his family’s summer home in South Bethany Beach, Del. “I would get up early, jog, and then be at my desk at 8 a.m.,” he recalls. “My good wife, Linda, would remind me when it was time for lunch.” Ferren completed the book more than a year ago with the help of the Supreme Court Historical Society and a fellowship at the Woodrow Wilson International Center for Scholars. Ferren agrees with Stevens that having been an appellate judge himself helped him to understand Rutledge. “I don’t think I could have written this book as a lawyer as opposed to a judge,” he says. “You can’t write a judicial biography without getting into the cases.” One of the Rutledge cases Ferren wrote about — his dissent in the 1948 case Ahrens v. Clark — took on new importance in the terrorism cases decided by the Supreme Court last term. As with In re Yamashita a few years earlier, Rutledge had sought to extend civil liberties to enemy combatants in some cases, writing in Yamashita that “the Constitution follows the flag” to the Philippines, where the Japanese World War II general was on trial for war crimes. In Ahrens, Rutledge argued in his dissent that D.C. federal courts had habeas corpus jurisdiction over 120 German nationals being held for deportation on Ellis Island. Rutledge’s views were vindicated in Rasul v. Bush, written by Stevens, his former law clerk, who cited the Rutledge dissent in his June 28 opinion. At last month’s reception for Ferren, Stevens said it was not until after he had written the Rasul opinion that he learned that he had actually written a memo for Rutledge in Ahrens. Stevens said he was visiting the Library of Congress to help him decide if he wants his own papers to reside there when a library staffer showed him his own memo on Ahrens in the Rutledge files. Some in the audience were intrigued that Stevens could have forgotten his role in Ahrens while writing Rasul. This revealing story pointed up another bit of good luck for Ferren as his book was being published. At just the moment that Rutledge, a modest former law school dean, was gaining new recognition for his views on individual rights in wartime, his biography has appeared in bookstores. “He has a real connection with what is happening today,” says Ferren, who does not think he’ll write another biography now that he’s finished with the Rutledge work. “It was an absolute thrill to write about a man who was the great balance wheel on the Court, who had a settling and grounding influence that is still felt today.”

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