Burton, Harold Hitz

Harold Hitz Burton
Harold Hitz Burton

Harold Hitz Burton (June 22, 1888-October 28, 1964) was a Unitarian layman, lawyer, and politician who served as Moderator of the American Unitarian Association (AUA). After three terms as mayor of Cleveland, Ohio, he was elected to the United States Senate and in 1945 appointed to the United States Supreme Court by President Truman.

Burton’s father, Alfred Edgar Burton—the first dean of students at the Massachusetts Institute of Technology—taught topographical engineering and organized astronomy and geodesy expeditions. His mother, Gertrude Hitz Burton, was the daughter of John Hitz, the Swiss Consul-General in Washington, D.C. An advocate for the education of women and author of several books on education, his mother was the head teacher at Alexander Graham Bell’s school for the deaf in Washington, D.C. but she resigned after getting married in 1884.

The Burton’s lived in the Jamaica Plain section of Boston, Massachusetts and had two sons, Harold and an older brother, Felix Arnold. Admirers of Emerson, Thoreau, and Whitman, the Burtons were a Unitarian family even though their parents had followed Swedenborg. Harold and Felix were living in Lausanne, Switzerland, near the Swiss sanatorium where their mother was being treated for tuberculosis, when she died in 1896. The boys returned to their father in Newton Centre, Massachusetts where Harold attended local schools before going off to college. After they were in college their father would remarry.

Like his father and older brother, Burton graduated from Bowdoin College in Brunswick, Maine. He was the quarterback of the football team and a member of Phi Beta Kappa. Graduating summa cum laude, he attended the Harvard Law School where he received his law degree in 1912. He was married to Selma Florence Smith on June 15, 1912 by C.A. Bartol at Boston’s West Church. They moved to Ohio where he joined the law practice of his wife’s uncle. When the United States entered World War I, he served in the infantry, finishing the war as a Captain and receiving a Purple Heart and Belgium’s Croix de Guerre.

After the war, he returned to Cleveland and resumed his law practice. He also taught at Western Reserve University, 1923-25. A lifelong Republican, he found himself drawn to politics. He was elected to the Ohio state legislature as a Republican, 1928; he served the city of Cleveland as law director, 1930-31; acting Mayor, 1931-32; and as the elected mayor, 1935-40. As mayor, Burton was a strong supporter of the federal

Works Progress Administration
(WPA): Unemployment in Cleveland was over 23% in 1935. Cleveland also had a crime problem. Deprived of income by the repeal of prohibition, gangs had moved on to gambling, numbers and policy. Encouraged by the local press, Burton hired Eliot Ness as Cleveland’s public safety director. Ness rooted out police corruption before going after the mobs. He also modernized the fire department and put police officers in automobiles. While Burton was mayor, Cleveland hosted the 1936 Republican National Convention and the

Great Lakes Exposition
in 1936-37. When steel workers struck Cleveland factories in 1937, Burton revoked the steel company’s airport operating permit, thereby preventing them from airlifting supplies to non-union workers inside their plants. Burton’s reputation for clean living and high ethics earned him the moniker as the “Boy Scout Mayor.”

Burton was an active and dedicated Unitarian; he served as President of First Unitarian Church in Cleveland, Moderator of the American Unitarian Association during 1944 and 1945, and was one of the first officers of the Unitarian Service Committee. His commitment to liberal religion was summed up by his statement in a 1946 edition of The Christian Register explaining why he believed in promoting Unitarianism; “I regard religious liberalism as but another name for search for the truth in the field of religion wherever that truth may be found.”

Despite his earlier support of the WPA, in 1940 he was elected to the Senate as an “anti-New Deal” Republican. He was especially critical of Franklin Roosevelt’s court packing attempt. His voting record in the Senate was independent and bipartisan or, as his biographer Mary Frances Berry put it; Burton should “be labeled a middle-of-the-roader with a conservative slant.” He served on Harry S. Truman’s
Senate Special Committee to Investigate Defense Spending, where he formed a working relationship with the future president.
During his time in the Senate, Burton quietly supported the efforts of the Unitarian Service Committee (USC) to aid victims of Fascism and Nazism and to deal with the refugee situation caused by World War II. Among his papers are letters to USC Executive Director Robert Dexter to facilitate USC efforts to obtain passports and visas and to assist their efforts to transfer funds to the committee’s office in Lisbon, where Charles Joy was directing efforts to aid refugees.

Burton Greets Jesse OwensHowever, as a member of the Senate Committee on Immigration, he took a conservative approach on the immigration issue that put him at odds with the USC which was working to bring refugee children into the United States. In a letter of November 5, 1942 to William Emerson, chairman of the USC, Burton took umbrage with the implication that he opposed the immigration of these children. He wrote that he “would not suggest that 5000 children would overrun the country,” but that he was “concerned by the larger aspects of the immigration” problem.

Troubled by previous policies that admitted people “who have made trouble through their subversive activities,” Burton felt that the United States needed a comprehensive immigration policy. He was referring to violent labor strikes and social unrest that were common in the early 20th Century and which were often blamed on immigrants. Despite his differences on the immigration question, Burton maintained his strong support for the USC.

In the Senate, he was a strong supporter of a United Nations organization. In 1943, along with Senators Ball of Minnesota, Hatch of Arizona, and Hill of Alabama, Burton sponsored the bipartisan B2H2 resolution spelling out steps for postwar cooperation. In the end, the less specific Connally Bill, named for Senator Tom Connally of Texas was passed. In early 1945, Burton made a trip to the Middle East and North Africa to investigate the work of the

United Nations Relief and Rehabilitation Administration
. At the same time, he was serving as the moderator of the AUA, and he met with members of the USC who were working in conjunction with the UN agency. He was impressed with the efforts of the USC personnel and upon his return wrote a report to the USC Secretary Alfred Whitman praising their work and encouraging the USC to continue to apply the principles of “our denomination . . . to the needs of our time.” He is also remembered for co-sponsoring with Senator Hill of Alabama, the Hospital Survey and Construction Act which is commonly called the Hill-Burton Act.

Burton’s career took a dramatic turn in 1945 when Supreme Court Justice Owen Roberts retired. For political reasons, President Truman felt compelled to appoint a Republican, and although Burton had no previous judicial experience, Truman chose his former Senate colleague. There was a political calculation to Truman’s decision. By selecting a moderate Republican, he ensured the support of that party’s senators. At the same time, Burton’s nomination created a vacancy that allowed the democratic governor of Ohio to name a Democrat to fill Burton’s seat. With both parties having something to gain, Burton was unanimously confirmed the day after Truman announced his nomination. Like his Senate career, Burton’s judicial decisions were often more progressive than early indicators predicted.

Burton Associate Justice U.S. Supreme Court
Burton Associate Justice U.S. Supreme Court

An analysis of Burton’s voting record using the Supreme Court Data Base scdb.wustl.edu, created by political scientist Harold Spaeth, shows that Burton shifted toward more liberal positions after 1954. From 1946 until 1953, Burton was a true moderate and voted for liberal positions slightly less than half the time. However, from 1954 until his retirement in 1958, the data base shows his voting pattern becoming more progressive; voting for liberal positions over 65% of the time. The reason for Burton’s increasingly liberal stance is unknown, but it may be related to the arrival in 1954 of new Chief Justice Earl Warren and the general leftward shift of the court.

Burton’s record on race relations was generally progressive throughout his career. During his campaigns for the Ohio state house and for mayor, he received black support due to his work for relief measures. In the Senate, he supported the anti-poll tax amendment as well as the creation of a permanent Fair Employment Practices Commission. His sentiments on race were expressed in a 1943 speech to the Unitarian Ministry for Students in Cambridge, Massachusetts where he reminded his audience that the government was “representative of all the people for the benefit of them all, majority and minority alike, regardless of race, color, creed, wealth or occupation.” Burton’s words recalled the legacy of the many early Unitarians who were strident
abolitionists prior to the Civil War. However, while abolitionists were morally opposed to slavery and worked diligently to end it, they did not equate ending slavery with racial equality. They often held paternalistic views. While Unitarian statements of principles as early as 1870 proclaimed “the great brotherhood of man without limit or bound,” it was not until the 1940’s that the Unitarians began to expand that definition to be “undivided by nation, race or creed.”

Sometimes Burton’s conservative legal philosophy trumped his concern for racial justice. In a case early in his judicial career, Morgan v. Virginia, his vote was the lone dissent when he voted to uphold a Virginia statute that required racially segregated seating on buses engaged in interstate travel. The majority voted to overturn the statute basing their decision on the interstate commerce clause of the Constitution. The majority thought that the lack of standardization of state laws regulating racial separation imposed an undue burden on interstate commerce. In his dissent, Burton wrote that it was the role of Congress, not the courts, to create “affirmative national uniformity of action,” and that by not acting; Congress had effectively decided to leave the issue for the states to decide. Neither Burton nor the majority addressed racial discrimination or the validity of the “separate but equal” doctrine.

In a later 1950 case, Henderson v. United States, Burton moved closer to addressing the question of racial inequality. This case involved the practice of interstate railroads designating separate dining tables for black and white customers: A curtain was drawn to separate the black diners from white customers. If the tables reserved for blacks were vacant and space was needed for white diners, the curtain was removed, and whites were seated at the vacant tables. Black passengers seeking to eat were made to wait until the “black” tables were empty. Burton wrote that the railroad’s rules subjected black passengers to “undue or unreasonable prejudice or disadvantage” and thereby violated the Interstate Commerce Act. While he did not invoke the Fourteenth Amendment nor address the “separate but equal” doctrine, Burton did assert that the “curtains, partitions, and signs…serve[d] only to call attention to a racial classification of passengers holding identical tickets and using the same public dining facility.”

With the appointment of Earl Warren as Chief Justice in 1954, Burton served on what became known as the “Warren Court,” probably the most progressive and controversial period in the court’s history. The most famous and arguably the most important decision to be made during Burton’s tenure on the court was the Brown v. Board of Education school desegregation case. This unanimous decision overturned Plessy v. Ferguson and the “separate but equal” doctrine of racial segregation in public schools. Burton took special pride in this decision. In a letter to Chief Justice Warren he wrote, “I expect there will be no more significant decision made during our service in the Court. . . . I cherish the privilege of sharing in this.”

Burton was often criticized for being anti-civil libertarian, and indeed his opinions concerning First Amendment and civil liberties issues were mixed. In his 1951 opinion for Joint Anti-Fascist Refugee Committee v. McGrath in which the appellant organization was designated as “communist” by the U. S. Attorney General, Burton wrote that the Attorney General based his action on “unfounded designations” that were “patently arbitrary” and ruled for the appellant. However, in 1954 he took a more conservative legal position in a related case, Barsky v. Board of Regents of the University of The State of New York. Dr. Barsky had refused to produce records of the Joint Anti-Fascist Refugee Committee which had been subpoenaed by the House Un-American Activities Committee. For his actions, Dr. Barsky was sentenced to six months in jail, a $500 fine, and his medical license was suspended for six months. He appealed the suspension of his medical license. In his opinion, Burton upheld the suspension of Dr. Barsky’s medical license writing that “the practice of medicine in New York . . . is a privilege granted by the state under its substantial plenary powers,” and that “a state has broad power to establish and enforce standards of conduct within its borders . . . [as] a vital part of its police powers.”

Both of these cases occurred during the Red Scare era when many people were accused of being communist or communist sympathizers, often with little or no evidence. Some of the accused were Unitarians which caused controversies both in individual congregations and among the national leadership. During the 1940’s,
Stephen H. Fritchman, the editor of the AUA publication The Christian Register and the national AUA Director of Youth Work, was a frequent speaker to groups accused of being communist fronts, including the Joint Anti-Fascist Refugee Committee.

Burton’s judicial and political values are hard to qualify. His opinions for the Morgan and Barsky cases were based on the conservative legal principle of respect and deference to the police powers of the individual states. On the other hand, his decisions in Henderson, Joint Anti-Fascist Refugee Committee and especially Brown illustrated a justice who believed governments were required to act fairly and to offer equal treatment under the law. As the New Orleans Times-Picayune described him; he was a “mildly progressive Republican of considerable independence.” Suffering from Parkinson’s disease, Burton retired from the court in 1958 and died in 1964.

“In our families,
among our neighbors and toward the world,
in all things, large and small,
let us too be ever true and ever kind,
for Truth and Kindness are the parents of Peace and Good Will.”
HHB – 1953


An extensive collection of Burton papers, particularly from his Senate and Supreme Court years are in the Manuscript Division at the Library of Congress in Washington, D.C. Materials from his Cleveland, Ohio years, including hundreds of photographs, are housed in the collections of the Western Reserve Historical Society in Cleveland, Ohio. The George J. Mitchell Department of Special Collections & Archives at Bowdoin College in Brunswick, Maine also has a small collection of Burton papers, clippings, and ephemera.

Books written by Burton include; 600 days’ service; a history of the 361st infantry regiment of the United States Army (1921); and a number of shorter works published in limited editions including; America Looks Ahead (1944), for the Unitarian Service Council; and The Keystone of our freedom: an independent judiciary (1953). His writing can also be found in the collections, Should the anti-poll tax bill be passed now? (1944), and a short statement along with 22 other contributors in Why I believe in advancing Unitarianism (1946). Also available is a collection edited by Supreme Court Librarian, Edward Gerald Hudon, The Occasional Papers of Mr. Justice Burton (1969).

Biographical information is included in Mary Frances Berry, Stability, Security, and Continuity: Mr. Justice Burton and Decision Making in the Supreme Court, 1945-1958 (1978) and in two dissertations; Charles Dennis Dunfee, Harold H. Burton, Mayor of Cleveland : the WPA program, 1935-1937 (1976), and Ronald G. Marquardt, The judicial justice: Mr. Justice Burton and the Supreme Court (1973). Also useful are Ray Forester, “Mr. Justice Burton and the Supreme Court,” Tulane Law Review (1945) and Douglas Perry, Eliot Ness: The Rise and Fall of an American Hero (2014). The University of California Berkeley Law Library holds a photocopy of a 3,407 page manuscript, Biography of Harold Hitz Burton (1972). This unpublished work by an unknown author includes bibliographic references. For more information on Burton’s published works consult the WorldCat catalog on-line at worldcat.org. Secondary works of interest include Arnold S Rice, The Warren Court, 1953-1969 (1986); Kermit L. Hall, The Oxford Companion to the Supreme Court of the United States (2005); and Clare Cushman, The Supreme Court Justices: Illustrated Biographies, 1789–2012 (2012). Short biographies and obituaries can be found in American National Biography, the New York Times (1964), and the Harvard Law Review (1965).

Further information can be found on-line, including digitized images of “Twenty-two letters to Unitarian Service Committee (USC) members, 1942-1946,” on the Andover Harvard Theological School  Library website; a biography of Burton is on The Supreme Court of Ohio website ; and another short biography by Thomas Blair, Harold Hitz Burton: Mayor, Senator, and Supreme Court Justice, 1888-1964, is found on the Harvard Square Library website. For voting records consult Harold J. Spaeth, “The Supreme Court Data Base,” at scdb.wustl.edu. Additional information is found in “The Cleveland Memory Project,” hosted by the Libraries at Cleveland State University, on line at clevelandmemory.org, and the “Encyclopedia of Cleveland History” ech.case.edu/, a joint project of Case Western Reserve University and the Western Reserve Historical Society.

Article by Jim Kelley
Posted January 28, 2014