late April, 1946, Washington, D.C., was an upbeat, optimistic city. World
War II finally was over, and the stresses of what would be called the Cold
War were not yet at hand. The U.S. Supreme Court was nearing the end of its
first post‑war term in the always spectacular springtime of the federal
April 22nd, was a decision day at the Court, and the Chief Justice was in a
good mood. He had spent Easter weekend with family and friends, and he had
plans to host a dinner party that evening. After the customary call to order
at twelve noon in the marble‑colonaded chamber, the Justices took their
seats at the long, elevated mahogany bench. In the center of the Roosevelt
Court sat the imposing twelfth Chief Justice of the United States, Harlan
Fiske Stone, looking every inch the New England patrician that he was. After
some routine business was concluded, the Justices read opinions of the Court
or their dissenting opinions. Stone read his dissent from a case involving a
conscientious objector's right to citizenship and concluded by saying, "It
is not the function of this Court to disregard the will of Congress in the
exercise of its constitutional power."1
minutes later when it was time for the Chief to deliver three opinions he
had prepared for the Court, there was silence. Senior Associate Justice Hugo
Black, sensing something was wrong, gaveled the session to adjournment, and
he and Justice Stanley Reed assisted the Chief Justice from the chamber. The
unconscious Chief was taken to a hospital where in the early evening he
died, apparently without pain, of a massive cerebral hemorrhage.2
Stone's final act literally had been on the bench and his last coherent
words were a refrain of his often voiced philosophy of judicial restraint.
Thus ended the life of a Justice whose service on the Court spanned the
Lochner era to the age of the welfare state, a Justice whose
opinions had a profound impact on the nation's struggle to meet the
challenges of the Great Depression and a world war and who guided the Court
into the beginning of the judicial revolution in civil liberties and civil
rights. For the Supreme Court in 1946, April was the cruelist month.
Justice, Harlan Fiske Stone was sui generis. He was the
only university professor and law school dean to head the Court, and he was
the only Chief Justice to serve under two predecessors. In the history of
the Court, Stone alone sat in all the high‑backed chairs of the Court from
the junior Associate Justice's place to the Chief's center spot. He was the
nominee to submit to questions from the Senate Judiciary Committee during
the confirmation process. Tragically, Stone had the briefest tenure as Chief
Justice since 1801. He was one of only two Chief Justices appointed by a
President of a different political party (the other was Democrat E. Douglas
White appointed by Taft), and he was one of three Chiefs who were "promoted"
directly from the position of Associate Justice (the others were White and
William H. Rehnquist; Charles Evans Hughes also had been an Associate
Justice, but he resigned from the Court to run for the presidency several
years before his appointment as Chief Justice).
Fiske Stone was born on October 11, 1872, at his family's farm in
Chesterfield, New Hampshire. His parents were Frederick Lauson Stone and
Anne Butler, a former schoolteacher. Two years after Harlan's birth, the
Stones moved to Mill Valley, near Amherst, Massachusetts. In addition to
farming, Fred Stone supported his family by a variety of small business
ventures. Harlan's childhood was that of a typical, hard‑working New England
farm boy. In later years, Harlan attributed his independence, self‑
reliance, and sense of civic responsibility to his New England upbringing.
He did not want to continue in his father's footsteps as a farmer, however,
and after his sophomore year of high school, he attended the nearby
Massachusetts Agricultural College (M.A.C., now the University of
Massachusetts), intending to study science and possibly become a physician.
In his second year, an untoward scuffle with an instructor in the college's
compulsory chapel service led to Stone's expulsion.
loss was cross‑town Amherst's gain. In 1890 Stone was accepted at Amherst
College, where he excelled in academics (Phi Beta Kappa) and oratory, served
as editor of the college newspaper, was three times elected class president,
and played on the football team. "Doc," as Stone was known in college,
graduated in 1894 and taught high school science for a year at Newburyport,
Massachusetts. There he met district attorney William H. Moody, a future
Supreme Court Justice, who encouraged Stone to study law. In Newburyport,
Stone frequently sat in on sessions of the state superior court and decided
to pursue legal studies.
he was admitted to Columbia Law School, where the case system of instruction
had just been introduced. In New York City, Stone helped pay his way through
law school by teaching history part‑time at a Brooklyn high school. Stone
received his L.L.B. degree in 1898 and was admitted to the New York Bar. He
clerked one year for Sullivan and Cromwell, a Wall Street law firm.
Stone married Agnes Harvey, a childhood sweetheart. He joined the firm of
Wilmer and Canfield and began part‑time teaching of equity and trusts at
Columbia. In 1903 he was promoted to adjunct professor, with a seat in
Faculty of Law. Stone resigned his professorship in 1905, however, because
of an inadequate salary and his disagreements with Columbia's president,
Nicholas Murray Butler. He then became a full partner in the firm now called
Wilmer, Canfield, and Stone.
later, without relinquishing his work in the law firm, Stone was lured back
to Columbia where he was Professor of Law and Dean of the Law School. In
1915 he was named Kent Professor of Law, and his professorial
accomplishments included writing several significant articles on trusts and
equity rights for the Columbia Law Review. He was a gifted teacher
reputed to be inspiring and effective in the classroom. One of his students
was William O. Douglas, who later would serve on the Supreme Court with
Stone. Under Stone's leadership, the law school upgraded its admission
requirements and set high standards of scholarship for the faculty. During
World War I, Stone served on a government board examining claims of
conscientious objectors, and he subsequently wrote "The Conscientious
Objector," a classic essay in defense of nonconformism.3
During this time, he also defended free speech
claims of professors and socialists and opposed the "red raids" of U.S.
Attorney General A. Mitchell Palmer against suspected radicals.
Columbia soon became a
center of a new school of jurisprudence, legal realism. Legal realists
rejected formalism and static legal rules; instead, they searched for the
experiential and the role of human idiosyncracy in the development of law.
Although Dean Stone encouraged the realists, he was condemned by President
Butler as an intellectual conservative who had let legal education at
Columbia fall "into the ruts."4
disgusted by his conflict with Butler and bored with "all the petty details
of law school administration" that he dubbed "administrivia," Stone resigned
the deanship and joined the prestigious Wall Street firm of Sullivan and
He received a much higher salary and headed the firm's litigation department
that had a large corporation and estate practice (including J.P. Morgan's
interests). In full‑time private practice for only a brief time, Stone was
considered a "hard‑working, solid sort of person, willing on occasion to
champion the rights of mankind, but safe nevertheless."6
On 1 April
1924, Stone became Attorney General of the United States, appointed by
President Calvin Coolidge, who had been a contemporary of Stone's at
Amherst. Coolidge needed someone who would be perceived by the public as
beyond reproach to oversee investigations into various scandals arising
under the Harding administration. These scandals had besmirched Harding's
Attorney General, Harry M. Dougherty, and forced his resignation. Stone
immediately fired Dougherty's cronies in the Department of Justice and
replaced them with men of integrity. He appointed a young lawyer, J. Edgar
Hoover, as Director of a reconstituted Federal Bureau of Investigation (FBI)
and directed him to model the FBI on Scotland Yard and make it far more
efficient than any other police organization in the country. A pro‑active
Attorney General, Stone argued many of his department's cases in the federal
courts and launched an anti‑trust investigation of the Aluminum Company of
America, controlled by the family of Andrew Mellon, who was Coolidge's
Secretary of the Treasury.
In the 1924
presidential election, Stone campaigned for Coolidge's re‑election. He
especially opposed the Progressive Party's candidate, Robert M. LaFollette,
who had proposed that Congress be empowered to reenact any law that the
Supreme Court had declared unconstitutional. Stone found this idea
threatening to the integrity of the judiciary as well as the separation of
after the election, Justice Joseph McKenna resigned from the Supreme Court,
and on 5 January 1925, Coolidge nominated Stone to replace him. His
nomination was greeted with general approval, although there were rumors
that Stone might have been kicked upstairs because of his antitrust
activities. Some Senators raised questions about Stone's connection to Wall
Street making him a tool of corporate interests. To quiet those fears, Stone
proposed that he answer questions of the Senate Judiciary Committee in
person. Stone made such a favorable impression upon the Senators that he was
confirmed by a vote of 71 to 6. On
March 2nd, 1925, Stone took the oath as Associate Justice
administered by Chief Justice William Howard Taft.
Supreme Court of the mid‑1920s was primarily concerned with the
relationships of business and government. A majority of the justices led by
Taft were staunch defenders of business and capitalism from most government
regulation. The Court utilized the doctrines of substantive due process and
the new fundamental right of "liberty of contract" to oversee attempts at
regulation by the national and state governments. Critics of the Court
charged that the judiciary had usurped legislative authority and had
embodied a particular economic theory, laissez faire, into its decisions.
Despise the fears of progressives, Stone quickly joined the Court's "liberal
faction," frequently dissenting with Justices Holmes and Brandeis and later,
Cardozo when he took Holmes' seat, from the majority's narrow view of the
police powers of the state. The "liberal" justices called for judicial
restraint, deference to the legislative will.
jurisprudence, Stone searched not for a fixed point of law but for guiding
principles. He was willing to look at nontraditional sources for information
related to the legal rules the Court pronounced‑‑a process advocated by
legal realists. Stone wrote few opinions involving constitutional questions;
instead he was assigned tort cases, admiralty causes, patent disputes, and
income tax controversies. Because the Supreme Court did not have its own
building at that time, Stone did much of his work at home or in a basement
room of the Senate Office Building.
Hoover administration, Stone served as an informal advisor to the President
and was a member of Hoover's pre‑breakfast "Medicine‑Ball Cabinet," a
fitness group, at the White House. Hoover unsuccessfully tried to persuade
Stone to become his Secretary of State following the 1928 presidential
Justice Taft resigned because of failing health in 1930, however, Stone was
rumored to be Hoover's choice to replace him. Hoover, perhaps to pay off a
political debt for help in the 1928 election, instead appointed former
Associate Justice and Stone's colleague in the Coolidge cabinet, Charles
Evans Hughes, to the post. Hughes, a judicial moderate, lead the Court
during the tumultuous times of the Great Depression and the Roosevelt
administration's efforts to combat it.
conservative bloc composed of Justices Butler, McReynolds, Sutherland, and
Van Devanter, known as "the four horsemen" (of the Apocalypse), frequently
joined by Owen Roberts and sometimes Hughes, dominated the Court and blocked
government efforts to deal with the Depression. Stone continued in his role
as a dissenter to the substantive due process activists who read their
personal economic predilections into the Constitution. Feeling isolated on
the Court, Stone considered returning to law practice in New York, a move
encouraged by his Sullivan and Cromwell colleague, John Foster Dulles.7
After Hoover's defeat
in the 1932 elections, Stone's admirers urged him to enter politics and seek
the GOP presidential nomination. Stone, however, heeded the advice of Judge
Learned Hand and remained on the Court and emerged as the chief opponent of
1930s the four horsemen and their sometime converts consistently attacked
New Deal legislation because they disagreed with its wisdom. Using a
Catch‑22 logic, the conservative bloc found states could not regulate much
because of Congress' commerce power, and Congress could not regulate much
because of the states' police power. In contrast, Stone upheld government
regulations, voting for the abrogation of the gold clause contract in
government bonds, the TVA, the National Labor Relations Act, and the Wage
and Hour Law; and he dissented from decisions on the Guffey coal wage bill
and on the New York Minimum Wage Law for women. When the conservatives
struck down FDR's Agricultural Administration Act in 1936 in United
States v. Butler, Stone dissented, charging the majority with writing
its own views into law, disregarding the wisdom of the legislature, and
"torturing" the Constitution. Wrote Stone: "While unconstitutional exercise
of power by the executive or legislative branches of the Government is
subject to judicial restraint, the only check upon our own exercise of power
is our own sense of restraint."8
constitutional interpretation respecting government regulation of the
economy was based on the premise that the Constitution sanctioned government
power to govern and that power changed to meet changing conditions. Further,
it was not for the courts to determine what remedies were appropriate to
meet economic problems that burdened the nation. The essential continuity,
according to Stone, was not that of "rules" but of "aims and ideals,"
allowing government "to continue to function and to perform its appointed
tasks within the bounds of reasonableness." Stone contended that judges must
be alert to discover whether their decisions "will represent the sober
second thought of the community, which is the firm base on which all law
must ultimately rest."9
opposed Roosevelt's Court‑packing plan during the constitutional crisis of
1937, although he could well understand why the President suggested such a
measure. Following the "switch in time," primarily by Justice Roberts, and
retirements of other justices, Stone's views formerly raised in dissent
became those of the Court's majority. New Deal regulatory measures were
sustained and wide‑ranging federal power over the economy was upheld. Stone
wrote significant opinions about intergovernmental tax immunities, commerce
clause restrictions on the states, equity, and patents.
Stone's greatest contributions to American jurisprudence came in his
majority opinion in United States v. Carolene Products (1938), which
included the most famous footnote in the Court's history.10
In an otherwise insignificant case, Stone's footnote laid out a new
direction for the Court's use of judicial review and the choice between
activism and restraint. He suggested that although economic legislation
might be assumed to be constitutional if it was rational, such a test might
not apply to other types of legislation. There might be a narrower scope for
the presumption of constitutionality if the legislation appeared to violate
protections of the Bill of Rights. In addition, legislation restricting
political processes should be subjected to more exacting judicial scrutiny,
and the courts might have a special responsibility for protecting "discrete
and insular minorities," such as religious, national, or racial minorities,
particularly when political processes relied upon to protect minorities have
been curtailed. With the Carolene Products footnote, the Court that
had been primarily occupied with the business‑government relationship became
more concerned with the relationship between the individual and government.
Much of the subsequent doctrinal and theoretical development of
constitutional law in the United States was foreshadowed by Footnote Four,
and the protection of civil liberties and civil rights became the main
business of the Court.
had the opportunity to apply his Footnote Four theories in his opinions. In
Hague v. CIO (1939), Stone made clear that the safeguards of the
First Amendment applied to the states and were firmly anchored in the
Fourteenth Amendment due process clause. Moreover, the Court would
henceforth subject legislation restricting civil liberties to "more exacting
Stone echoed this sentiment as the sole dissenter in Minersville School
District v. Gobitis (1940), where the majority had upheld
a state law requiring public school children to salute the flag against a
challenge from Jehovah's Witnesses that this violated their religious
scruples. Stone found the law violative of the guarantee of "freedom of mind
and spirit." For Stone it was incumbent upon the Court to extend freedom's
benefits to the novel, the unpopular, the unorthodox—even "in times when the
nation is subject to extraordinary stress."12
Within a few years, Stone's ideas were endorsed by a majority of the Court
when it reversed the Gobitis decision in West Virginia State Board
of Education v. Barnette (1943).
On 2 June
1941, Chief Justice Hughes retired, and President Roosevelt, in a gesture of
national unity as war approached, nominated Stone, a staunch Republican, to
fill the vacancy. His appointment was approved strongly by the public and
the press, and the Senate unanimously confirmed Stone by a voice vote. The
Court over which he presided, with the exception of Roberts, was composed of
Roosevelt‑appointed New Deal liberals who might have been expected to share
Stone's views on judicial restraint.
as the Court moved away from issues of federalism and economic regulation
and focused on civil liberties questions, the new men on the Court who
called themselves "liberals" differed markedly over what that title meant.
The Justices increasingly divided into shifting majority and minority voting
blocks. Internecine wrangling between strong‑willed, prickly
personalities‑‑especially Black, Douglas, Frankfurter, and Jackson‑‑as well
as substantive disagreement on issues characterized the Court's work.
Quarrels that formerly had been kept secret in conference erupted into
formal opinions. Even the writing of what should have been a routine
retirement letter to Justice Roberts became a public squabble among the
justices. The Chief Justice, who tended to minimize his role as leader, was
criticized for failing to keep differences under control and to "mass the
Court" as Hughes and Taft had done.
style of leadership doubtlessly contributed to the increase in strident
dissents and public backbiting among the justices. Unlike Hughes, who
dominated the Court's conferences with an iron will, Stone preferred to
preside over a chief‑moderated "university seminar" that emphasized
deliberation and free‑wheeling discussion. Although
wrote that "Stone's tolerance of full and free discussions produced a most
healthy environment for judicial work," the justices' continuous
disagreement on vital issues threatened the Court's authority and prestige.13
the dissonance, the
was productive and creative. In settling some of the most controversial
issues facing the nation, the Court handed down a series of landmark cases
expanding individual rights, recasting the role of the national government
in the federal system, meeting the challenges of World War II, encouraging
the rights of organized labor, and using the Equal Protection Clause to
protect racial minorities. Stone shouldered his part of the work, and during
his five years as chief, he wrote 145 opinions (more per term than any of
the other justices), 96 of which were for the Court. The Chief frequently
disagreed with his colleagues who were activists in using judicial power to
protect individual liberties from legislative interference. Stone still
believed in judicial restraint and objected to the justices trying to write
their own liberal social views into law. Stone's insistence that the
justices should be controlled by an informed sense of judicial
self‑restraint was just as applicable to the new liberal Court as it had
been to the old conservative Court. He also protested against the justices’
use of a "preferred freedoms" doctrine to invalidate any legislation
affecting First Amendment rights.
wrote for the Court in many of the most difficult and perplexing cases. In
United States v. Classic (1941), he ruled that Congress could
regulate a primary election if it constituted part of the overall machinery
for choosing elected federal officials‑‑a significant victory for
African‑American voters who had been disenfranchised in "white primaries" in
the segregated South. When war powers of the executive and Congress clashed
with civil liberties during World War II, however, Stone frequently upheld
the government. His most controversial decisions involved constitutionally
unprecedented cases involving German saboteurs, Ex parte Quirin
(1942); the war crimes trial of Japanese General Yamashita, In re
Yamashita (1946); and the imposition of a curfew on Japanese‑Americans
and their exclusion from the west coast, Hirabayashi v. United States
(1943). Stone reasoned that the Constitution committed war making to
Congress and the President, and that if that power was reasonably exercised,
the justices should construe it with full cognizance of its special
characteristics. In war, as in peace, according to the Chief Justice, the
Constitution was a flexible instrument of government that both granted and
limited power. It was the difficult task of the Court to balance power and
individual liberties‑‑to achieve a delicate equilibrium to preserve the
related values of the public good and private rights.14
Chief's coming down on the side of public good in the guise of military
commanders disappointed his more libertarian admirers.
career on the Court extend over a transition from a time when judicial
values emphasized property rights and dual federalism to the modern era that
stresses "the free play of the human spirit"15
and an expanded national power. Cast as a liberal on the old Court, Stone
truly was an independent thinking pragmatist who sought balance in all
aspects of life. As the justices of the new Court increasingly championed
the judiciary's role as the palladium of the people's freedom, Stone's views
became a restraining influence on their activism. His voice was one of
prudence for the New Deal. He sought to temper predilection with restraint
and carefully crafted opinions. For Stone, a personal preference for a
particular policy was but one factor in his quest for judgment. He believed
law was an evolutionary process, changing, as did the common law, in an
orderly manner. Thus he preferred narrow holdings making incremental
advances as the best way to accommodate change.16
attitudes of the justices shifted around him, Stone's stayed in place "like
a block of New England granite."17
As an individual justice Stone made dynamic
contributions to American law, adapting the Court and Constitution to the
problems of the twentieth century. Although critics found him disappointing
as a Chief Justice, Stone, the "judge's judge," exerted a profound influence
on the course of events. At its best, the legacy he left was the pillar of
our constitutional law.
United States, 328 U.S. 61 (1946): dissenting, p. 70.
Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking
Press, 1956), p. 806.
Fiske Stone, "The Conscientious Objector,"
4. Melvin I.
Urofsky, "Stone, Harlan Fiske," in American National Biography,
Volume 20, ed. John A. Garraty and Mark C. Carnes (New York: Oxford
University Press, 1999), p. 850.
5. Melvin I. Urofsky, Division and Discord: The Supreme Court under
Stone and Vinson, 1941‑1953 (Columbia, SC: University of South
Carolina Press, 1997), p. 10.
Harlan Fiske," Current Biography: Who's News and Why, 1941, ed.
Maxine Block (New York: H.W. Wilson, 1941), p, 836.
7. Mason, p.
States v. Butler,
297 U.S. 1 (1936); dissenting p. 78.
9. Harlan Fiske Stone, "The Common Law in the United States," an address
delivered at the Harvard Tercentenary celebration, 1936. Qtd. in Mason, p.
10. 304 U.S. 144
11. 307 U.S. 496
(1939); concurring, p. 518.
12. 310 U.S. 586
(1940); dissenting, p. 601.
13. Robert J.
Steamer, Chief Justice: Leadership and the Supreme Court (Columbia,
SC: University of South Carolina Press, 1986), p. 265‑266.
14. Mason, p.
Frankfurter, Qtd. in Robert G. McCloskey, The American Supreme Court
(Chicago: University of Chicago Press, 1960), p. 181.
16. G. Edward
White, The American Judicial Tradition: Profiles of Leading American
Judges (New York: Oxford University Press, 1988), pp. 218‑219.
McCune, The Nine Young Men, p. 249, Qtd in Mason, p. 780.
FOR FURTHER READING
Mason, Alpheus Thomas.
Harlan Fiske Stone: Pillar of the Law. New York: Viking Press, 1956.
Pritchett, C. Herman.
Roosevelt Court: A Study in Judicial Politics and Values.
New York: Macmillan, 1948.
Steamer, Robert J.
Chief Justice: Leadership and the Supreme Court. Columbia, SC:
University of South Carolina Press, 1986.
Urofsky, Melvin I.
Division and Discord: The Supreme Court under Stone and Vinson,
Columbia, SC: University of South Carolina Press, 1997.
"Mr. Justice Stone and the Constitution."
Columbia Law Review
White, G. Edward.
The American Judicial Tradition: Profiles of Leading American Judges.
University Press, 1988.
Theodore M. Vestal
(Ph.D., Stanford) is Professor Political Science at Oklahoma State
University, where he teaches courses on public law. He is the author of
Ethiopia: A Post‑ Cold War African State and International
Education: Its History and Promise for Today.