HARLAN FISKE STONE: NEW DEAL PRUDENCE
 

by Theodore M. Vestal
 

 In 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 district.

            Monday, 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

            A few 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.

            As Chief 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 first Court 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).

            Harlan 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.

            M.A.C.'s 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.

            In 1895, 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.

            In 1899, 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 Columbia's 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.

            Five years 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

            In 1923, 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 Cromwell.⁵ 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 powers.

            Shortly 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.

            The 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.

            In his 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.

            During the 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 election.

            When Chief 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.

            A 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 judicial conservatism.

            During the 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

            Stone's 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

            Stone 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.

            One of 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.

            Stone soon 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 judicial scrutiny."¹¹ 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.

            However, 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.

            Stone's 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 Douglas 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

            Despite the dissonance, the Roosevelt Court 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.

            The Chief 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 The Chief's coming down on the side of public good in the guise of military commanders disappointed his more libertarian admirers.

            Stone's 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 While the 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.

                                                              NOTES

1.         Girouard v. United States, 328 U.S. 61 (1946): dissenting, p. 70.

2.         Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking Press, 1956), p. 806.

3.         Harlan Fiske Stone, "The Conscientious Objector," Columbia University Quarterly, October 1919.

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.

6.         "Stone, Harlan Fiske," Current Biography: Who's News and Why, 1941, ed. Maxine Block (New York: H.W. Wilson, 1941), p, 836.

7.         Mason, p. 347.

8.         United 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. 434.

10.       304 U.S. 144 (1938).

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. 683.

15.       Felix 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.

17.       Wesley 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. The 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, 

      1941‑1953. Columbia, SC: University of South Carolina Press, 1997.

Wechsler, Herbert. "Mr. Justice Stone and the Constitution." Columbia Law Review 46 (1946):   

      764‑800.

White, G. Edward. The American Judicial Tradition: Profiles of Leading American Judges. New

      York: Oxford 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.