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The 36th Division Archive
Captain Harold Hitz Burton
Regimental Operations Officer,
Associate Justice of the Supreme Court of the United States
361st Infantry Regiment, 91st Infantry Division; 331st Infantry Regiment, 83rd Infantry Division
Harold Hitz Burton was born on 22 June 1888 in the Jamaica Plain neighborhood of Boston. The first of two boys, his childhood was spent as any typical New Englander playing by the shore and in the woods near his suburban home. His father, a professor and later Dean at MIT, provided well for his family and normalized the pursuit of higher learning for Burton and his brother. At age five great hardship struck the Burton household when his mother became extremely sick, leading the family to the place of her birth, Switzerland, for treatment. While here the two children attended a French School, becoming fluent in the language, but ever agonizing over the suffering of their mother. After two years she finally passed and the boys returned with their father to Massachusetts, sharing their time between him and other family members, particularly his grandmother and uncle.
Burton used this uniform during WWI but continued to wear it throughout the postwar period, updating it with the insignia of his Ohio National Guard unit
Burton compiled, wrote, and published this unit history in 1921.
Burton entered high school at West Newton and became enamored with the idea of military service. The school utilized military training as part of its regimen and he came to strongly entertain the idea of attending the U.S. Naval Academy upon graduating, performing at the top of his class throughout high school and graduating as class president. Unfortunately, a slight heart murmur prevented his naval career, but he kept pace and followed in his father’s footsteps at Bowdoin College in Maine. Proving that heart murmur void, he found himself a notable track star and even the star quarterback for their football team, leading the college to a state championship. At first unsure of his future, Burton came to love his work with the school’s College Republicans chapter and settled on the law as his career path. After graduating in 1909, he began studies at Harvard Law in 1910, graduating in 1912. While at Harvard he fell in love with his lifelong partner, Selma, and chased her to Cleveland where he worked summers as a lineman with the local electric company, learning to love and appreciate the blue-collar workers from whom he was quite distant growing up.
Upon finishing law school he married and began work at a large firm in Cleveland, staying only long enough for the birth of his daughter before moving out west to become head counsel for the Utah Power & Light Company In Salt Lake City. After three years in the position, his talent in contract law earned him the head counsel spot for the Idaho Power Company in Boise where he relocated to in 1916. By this time Burton, still interested in military affairs, felt that the ongoing war in Europe was slowly drawing America into the conflict. To prepare himself, he attended a military training camp back in Salt Lake City. In April 1917 the United States entered WWI and Burton was distraught about his role. Told by a friend in the army that a lawyer was “the most useless man in the world in wartime,” he took his advice to “give up your law and go to camp,” officially enlisting in the United States Army in May of 1917.
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
Burton first went to officer training at Presidio in San Francisco, graduating three months later as a fresh lieutenant with his assignment to join the newly forming 91st Infantry Division at Tacoma, Washington. Packing up his wife and two children, he moved westward and became the commander of A Company, 361st Infantry Regiment, 91st Infantry Division at Camp Lewis. He drilled his men hard, expecting them to perform to the highest standards as the division came together. It was here that Burton first became close with the regimental commander, Colonel William Davis, earning his favor and looking up to him as a military mentor. On 28 June 1918 Burton left for France with numerous other officers before the rest of the division. Arriving a few weeks ahead of the other men, these officers underwent a special field officer school in France, rejoining the regiment at Chauffort, near St. Mihiel, in August. It was during this training that Burton was slated to take on a wholly new role that was developed by the army in France–the regimental operations officer. Removed from his company command, his new job was to oversee that orders, from the regimental commander and up, were transmitted down to every single unit of the regiment and that the orders were put into actual frontline effect. It was in this role that Burton first entered combat.
The 91st Infantry Division was sent to act in a reserve role for the St. Mihiel offensive in early September with the 361st first moving up to the line. Burton and the other doughboys could finally hear the big guns in the distance but were still only under warning orders. The regiment moved by truck to Parois where Burton set up the regimental HQ in a shell-ruined church. Here he sent out orders to all company commanders to follow a new division order that “under no circumstances must any officer or soldier allow himself to be captured,” instead claiming that “it is better that a man sacrifice his life than to allow himself to fall into the hands of the enemy.” Unbeknownst to many of the troops, the 91st was about to play a crucial role in the Meuse-Argonne Offensive and thus any leaking of information could prove disastrous to the campaign. Thankfully none were captured and by the end of the month, the men first went into the fray.
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
On 25 September Burton returned from the brigade HQ with a final order to jump off that night, initiating the army-wide offensive. He and the colonel occupied a concrete pillbox in the trench line along the Forest de Hesse when they began to spread the message across the regiment. The night was full of bombardment as American guns pounded German positions in the distance, the GIs waiting in silence watching as the bombs fell. At 0530 the next morning the division jumped off with Burton and Colonel Davis leaving their pillbox to follow the first wave going over the top, starting a 10-day onslaught into the machine-gun-infested forests of the Argonne. During the offensive, Burton played a critical role in overseeing the movements and commands of the various units within the 361st, running back and forth to transmit and hold open communications amidst the fray of battle. With the ultimate responsibility of making sure the regiment pushed forward, at times he even found himself revising orders on the fly if he saw the ones he was told to give were not going well for the units on the line.
The fighting was primarily through the densely forested hills of the Argonne and every treeline seemed to hold more of the enemy. Burton learned this well one night when he received telephone orders for the next day’s jump-off after a successful drive the day prior. Going to spread the command, Burton traveled alone back to another telephone station, still vigilant as he knew he was close to the enemy lines. Before long he began to hear voices coming from the trees but was unable to see anyone in the black pitch of night. Moving closer to the sounds, he soon realized that the voices came from a set of Germans put in a sniping post. At this point realizing he had left his service pistol back at the telephone station, he nonetheless proceeded forward alone, sneaking around behind the voices and approaching silently. Once he felt close enough he shouted out the only two words he knew in German, “Gehen Sie!” At this, the two snipers were shocked, but unable to see their captor and realize his unarmed state, they put down their rifles and marched out with their hands held high. Burton proudly walked the pair back to the telephone post, netting himself a count of two POWs. The regiment moved through places like Buante Creek onto Epinonville Hill as a constant cold and rainy drizzle dragged the doughboys into a dreary, deadly engagement. Burton and his team found themselves consistently in harm's way, at one point having an artillery shell land dead in the center of the regimental headquarters, burying the colonel in dirt and destroying the brigade message center which Burton had only just walked away from. On 29 September Burton was up front trying to locate the positions of the various companies as men were killed right alongside him. A strong German counterattack had induced heavy casualties near Gesnes and Burton had to find each company to personally order a withdrawal in forming a stronger defensive line.
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
The battle raged on for several more days but on 4 October, after eight days of constant assault, the regiment was finally relieved, given a fitting farewell in the form of a German artillery barrage right on their line. George H. Cameron, commander of the 5th Corps, noted that the 91st Division “in its initial performance… has established itself firmly on the list of the Commander-in-Chief’s reliable fighting units. Burton, distinguishing himself in his consistent risk and frontline service, was promoted to captain and had assistant regimental adjutant added to his list of duties. After several days of rest, the regiment was attached to the 32nd and 1st IDs for a new, second-phase offensive. Ordered to hold the line between Hills 255 and 269, Burton quickly learned upon running to oversee the frontline companies that these hills were in fact still occupied by German forces, so he went ahead and changed the orders to “seize the hills,” instead. After two days of attack on this line, the regiment sustained severe casualties with nearly 90 men killed. At one point during the fighting Burton and a runner even came under severe sniper fire while they were attempting to carry a message across a shell-torn field to keep the unit on the move. In mid-October, the regiment was moved from the Argonne for good, instead told to march over hard terrain and head for Belgium. By this point, the regiment was down to 65 officers of its original 114.
Moving by 40-and-8s, Burton and his comrades arrived in Flanders to find a true “No man’s land,” as they were greeted by the muddy, shell-hole-ladened, barbed wire-strewn hellscape of the prototypical WWI battlefield. Marching across the “dead lands” to De Ruiter, the regiment moved alongside the 37th Infantry Division for attachment to the French Army in preparation for a new offensive aimed at moving to the Scheldt. On 31 October the attack jumped off, the Americans pushing alongside their French counterparts to drive back an already-retreating German foe. The villages they came across were full of celebrating Belgians, overjoyed to see Americans on the firing line, rewarding Burton and his troops with drinks, food, and gifts of all sorts. The regiment’s primary objective was the city of Audenarde which was reached with fairly inconsequential hostilities from the Germans. On the outskirts of the city, however, the regiment took a major hit when Colonel Davis and several others were killed instantly from a direct hit by a German artillery shell. Burton, represented by his runner at this meeting, barely escaped his own death. Close with Colonel Davis, however, Burton was absolutely devastated. He later wrote in the regimental history that “to those who had lived in close personal relationship with [the colonel], came the realization that the regiment had lost a great-hearted friend as well as a military leader.” Even in his distress, the attack continued on and Burton took control of the regiment’s forces in Audenarde himself, setting up his command post in the town hall as the city was still under heavy fire. The next day Burton left to spread out orders of an extended advance and only minutes after he had left a German shell obliterated the room he had been using as an office. The regiment stayed in the city for several days, at first preparing to cross the Scheldt before they learned the bridges had all been blown and the other brigade had been ordered to carry out any offensive action. For the last week of the war, Burton and his men mostly moved around the line in preparation for an advance that never came. On 8 November word began to spread about the armistice negotiations and while sitting once again in Audenard, at 11:00 A.M. on 11 November, the 91st Division watched the war come to an end.
Courtesy of the National WWI Museum
Courtesy of the National WWI Museum
The 91st Infantry Division was considered one of the premier combat divisions of the American Expeditionary Force, particularly well-regarded for its role in the Argonne and for its assistance in working directly with French troops in Belgium. Although the war was over, Burton and the other 91st troops remained for occupation duties well into 1919. During this period, however, Burton was recognized for his services on the front, being awarded two different decorations:
The Belgian Croix de Guerre, 17 December 1918:
“For extraordinary heroism and gallantry in action during the advance from the Lys to beyond the
Scheldt River in the vicinity of Audenard, Belgium, October 31 to November 3, 1918”
The U.S. Army Meritorious Citation Certificate, from General Pershing:
“For exceptionally meritorious and conspicuous services during the Argonne Offensive.”
In April 1919 Burton returned to the United States with the rest of the 361st, meeting his wife and kids at a grand reunion in New York before moving on to Seattle and Tacoma where they were welcomed with mass parades as heroes. For Burton, however, the army life was at its end and he transferred back to Camp Sherman in Ohio where he was mustered out of the service, returning home to Cleveland to his family, his city, and his law.
In the immediate postwar period Burton went back to his legal career, working at the firm of Day, Day & Wilkin where one of the partners had also returned from the war. Still invested in military duty, however, he remained a captain in the Ohio National Guard as a member of the 331st Infantry Regiment, 83rd Infantry Division, a post he would hold for nearly two decades following the end of WWI. In 1921 Burton even compiled, wrote, and published the regimental unit history for the 361st Infantry Regiment entitled “600 Days’ Service,” which tracks their actions throughout France and Belgium. From 1921-1923 he also led the Cleveland Greys, a part-time military organization, before accepting a position teaching law at Western Reserve University from 1923-1925. After his teaching term, Burton finally opened his own law firm but not before his military background first led him to a life of politics. Elected Cuyahoga County chair of the American Legion in 1926, Burton took on a leading role in pushing for national legislation, such as opposing the Geneva gas protocol and banning machine gun sales, to making changes at home, advocating for a new veterans hospital and expanding military training in schools. At the same time he was elected to his local school board, became president of his Unitarian Church, and a year later, was elected to the Ohio House of Representatives. It was a fast-paced career fitting for a man so dedicated and devoted to serving his community and country.
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
In 1929 his legal prowess made him a vice president of the Cleveland Bar Association in addition to an appointment as the city’s law director, a notable position which he held for three years before returning to private practice. He was not destined for this role, however, and after numerous scandals from the mayor of Cleveland, Burton announced his own candidacy for the role in the 1934 election. It was a hotly contested race but Burton came out on top, starting what became a two-term mayorship (1935-1940) that left Burton a hero amongst Clevelanders across the city. Earning the title “Boy Scout Mayor,” Burton was known as an honest and earnest mayor, breaking up the city’s rackets and internal corruption while creating expanded public services and improved conditions for city residents. In 1940 his acclaim led him to receive the Republican nomination for U.S. Senator and that fall he was elected to now serve in the halls of Washington, D.C., although this did mean leaving behind his long-standing service in the National Guard. One of Burton’s first issues as a senator was regarding the entrance of the U.S. into WWII, to which he was staunchly opposed. “We who have seen active foreign service in time of war,” he claimed, “are now suffering with our fellowmen the economic punishment the world has inflicted upon the victors as well as the vanquished.” Despite his early protestations, Burton eventually came to support the war effort following the attack on Pearl Harbor, joining the effort as a member of the Senate Special Committee to Investigate the National Defense Program, monitoring the U.S. war effort alongside his good friend, then-Senator Harry S. Truman.
With the death of Roosevelt and the ascension of Truman to the presidency in 1945, Burton found himself the recipient of a most unexpected gift–nomination to the Supreme Court of the United States. Truman, viewed as a temporary filler for the presidency, sought to put a Republican on the court to counterattack Roosevelt’s many years of democratic control and to boost his popularity across the aisle. Burton, a friend from the senate with good temperament and legal background, became his pick and was announced nationally on 18 September 1945 with full unanimous senate confirmation only a day later.
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
Burton began his time as an Associate Justice in the Vinson Court where he found himself somewhat of a centrist-leaning conservative. Judicially speaking, he was a very restrained and technical judge who preferred to rule on cases based on procedural grounds over Constitutional ones, a restraint which earned him respect from his fellow justices battling it out over the expansion of judicial activism. Many of his decisions, however, were less informed by legal philosophy than personal political preference. A member of the NAACP, he ruled in favor of civil rights cases because he hated discrimination, he curved labor power because he feared the political ramifications on business, upheld regulations on speech and subversion because he believed in Cold War politics, and much more. In most cases, he cautiously sided with the government and upheld whatever appeared to be the more prudent, pragmatic option. In cases of anti-government speech and regulatory efforts, this meant Burton largely supported whatever the administration was attempting to do. He notably curved from this, however, in Youngstown Sheet & Tube Co. v. Sawyer (1952) which found him going against Truman, likely stemming from his time in the Senate and strong beliefs in the separation of powers. Burton’s most wide-sweeping opinions came in the areas of antitrust, criminal law, and civil rights. In antitrust, he wrote one of the most important opinions in American Tobacco Co. v. United States (1946) which greatly expanded the ability of the government to prosecute under the Sherman Antitrust Act. This position was balanced throughout the rest of his terms, however, as he went back and forth on specific instances of actual antitrust cases. In criminal law, he was overall fairly conservative, largely influenced by his time tackling crime in Cleveland, but did condemn police of secret radios to eavesdrop on conversations and argued against the execution of a prisoner who had attempted to be killed twice. In most instances, however, he simply sought to put the majority of criminal procedure and legal ability in the hands of state courts and legislatures. His final, and arguably greatest, achievement came in the civil rights cases that passed through his time on the court. A member of the Cleveland NAACP, Burton had long been personally angered by segregation and supported the abolition of poll taxes and further protections on employment. Although at first upholding a Virginia segregation statute in 1946 with Morgan v. Virginia, he turned around with his 1950 opinion in Henderson v. United States which outlawed segregation on railroads.
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
Courtesy of the Cleveland Memory Project, Cleveland State University Special Collections
At the very peak of his judicial career, however, came the decision of Brown v. Board (1954). At this time serving under Chief Justice Earl Warren, a fellow veteran of the 91st Infantry Division from WWI, Burton had come to realize that Plessy v. Ferguson needed to be overturned and openly supported a constitutional overruling of the decision. The crafting of the majority for the case went through countless variations, with some justices attempting to limit the desegregation to just schools, others trying to rule the case on technical grounds, others arguing to wait for a more positive political landscape, and many other competing concepts of how to tackle the issue. Burton, now a close friend of the newly-chiefed Warren, was still passionately in favor of overruling Plessy. Although it appeared the case would rule against some form of segregation, Warren desperately wanted a unanimous court ruling on constitutional grounds so that not only would segregation be staunchly defeated, but the unanimity of the court would give nationwide credence to the constitutionality of the ruling and the legitimacy of the fight against further segregation. Warren used Burton specifically to attack Justices Frankfurter, Clark, and most importantly, Reed. Reed, the most in favor of segregation on the court, was very likely to vote separately from the other justices in dissent from the opinion. Warren decided to utilize a series of social lunches and interactions to pressure him away from this action, using Burton to provide the key pressure. Using “articulate, passionate, and persuasive” language, Burton slowly turned Reed in favor of the majority opinion on both pragmatic and moral grounds, citing instances of desegregation from his time as mayor to simple realities of maintaining the horrid precedent. These efforts paid off in getting Reed to sign on to the opinion, allowing the Supreme Court of the United States to officially declare the end of segregation in public schools on 17 May 1954.
After 17 years on the court in the summer of 1957, Burton came to suffer greatly from early symptoms of Parkinson’s disease, leaving him to tender a resignation from the court to President Eisenhower. After urging from both the President and Chief Justice Warren, however, Burton decided to stay on a final term to deal with a few civil rights cases that were to be heard by the court that term (most notably, Cooper v. Aaron, the case of the “Little Rock Nine”). On 13 October 1958, he finally retired from the Supreme Court under great distress from his worsening illness but remained in D.C. where he sat on the U.S. Court of Appeals for another four years. On 28 October 1964 Justice Harold Burton passed away from the disease while in Washington but was buried in his longtime home of Cleveland, ending a life of meaningful, gallant, and infinitely impactful service to the nation he loved.
A list of notable Supreme Court opinions written by Justice Burton
American Tobacco Co. v. United States, 328 U.S. 781 (1946)
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) (Dissent)
Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947) (Dissent)
Lichter v. United States, 334 U.S. 742 (1948)
Henderson v. United States, 339 U.S. 816 (1950)
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Concurrence)
Slochower v. Board of Higher Education of New York City, 350 U.S. 551 (1956) (Dissent)
Beilan v. Board of Education, 357 U.S. 399 (1958)
Many thanks are given to the following for resources in their collections and assistance in making this comprehensive story possible:
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Elizabeth Piwkowski and the Cleveland Memory Project, Cleveland State University Special Collections
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Stacie Petersen and the National WWI Museum and Memorial
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Burton, Harold Hitz, in Biographical Encyclopedia of the Supreme Court 100 (Melvin I. Urofsky ed., 2006),