Harlan Fiske Stone

Supreme Court Justice

• Born: October 11, 1872
• Birthplace: Chesterfield, New Hampshire
• Died: April 22, 1946
• Place of death: Washington, D.C.

Associate justice (1925-1941) and chief justice of the United States (1941-1946)

As associate and then chief justice of the United States, Stone advocated a philosophy of moderation that combined judicial restraint and liberal nationalism with a concern for civil and political liberties. His integrity and persistence contributed significantly to the Supreme Court’s dramatic shift in 1937 from hostility to sympathy for the liberal nationalism of New Deal legislation, thereby avoiding a major constitutional crisis over the Court’s powers.

Areas of achievement Law, education

Early Life

Harlan Fiske Stone became one of the fifth generation of his family to be born in Chesterfield, New Hampshire. His father, Frederick Stone, was a farmer and trader of moderate wealth. His mother, Ann Sophia (née) Butler, a former schoolteacher, was also from an old Chesterfield family. In 1874, the Stone family bought a new farm and moved to Amherst, Massachusetts, so that Harlan and his older brother, Winthrop, could eventually attend college there. Here Harlan grew up and developed his love of nature, although he never cared much for farmwork.

Early in school Stone displayed above-average mental abilities, and with only two years of high school he entered Massachusetts Agricultural College in 1888, as a premedical student. He was expelled toward the end of his second year for participating in a student brawl, but he convinced his father to give him a second chance and was accepted by Amherst the next fall. He gave up science for a liberal arts curriculum and was graduated in 1894. Stone was active in student affairs at Amherst and served as class president for three years, won awards in declamation, worked on the student newspaper, was elected to Phi Beta Kappa, and played football.

In appearance, Stone was large of frame, five feet eleven inches in height, 175 pounds in weight, and had an ordinary but friendly look and an easy manner. After he was graduated from Amherst, he spent a year as science teacher and football coach at Newburyport High School, before enrolling in Columbia University’s law school. Although not always especially articulate, his persistence, self-confidence, and willingness to work hard allowed him to overcome this difficulty, earning for him the respect of his law professors. He was graduated in June of 1898, at the age of twenty-six, and joined the New York City law firm of Satterlee and Canfield. Three years later he was made a full partner. In December of 1898, he accepted a part-time appointment as professor of law at Columbia. Stone began his career full of idealism and optimism for his chosen profession, but over the years he came to realize that few other lawyers perceived the profession as a noble, idealistic calling.

Stone had known Agnes Harvey of Chesterfield, New Hampshire, the daughter of his mother’s best friend, since early childhood. They pledged themselves to each other in 1890 and maintained a regular correspondence thereafter. Early in 1899, Stone thought himself well enough settled to give her an engagement ring, and they were married September 7 of that year at her home in Chesterfield. They had two sons, Marshall, born in 1903, and Lauson, born in 1904. It was a long and happy union.

Life’s Work

By 1910, Stone had achieved a good reputation as a practicing lawyer and was recognized as a superior law professor. In his practice he stressed preventing future legal problems rather than waiting until trouble occurred. As a teacher, he believed that the lecture method had become obsolete with the printing press, and he emphasized the Socratic case method to stress to his students the importance of learning how to reason like a lawyer. On July 1, 1910, he assumed a position with the law school as professor and dean. He soon began making administrative and curricular improvements, insisting on high scholarly standards from students and faculty, allowing elective courses for seniors, and publishing scholarly articles regularly. Under Dean Stone’s leadership, Columbia Law School became one of the leading American institutions.

As dean and as legal scholar, Stone began to attract national attention. During World War I, he distinguished himself for fairness as a member of a special board of inquiry to consider whether those military draftees who claimed to be conscientious objectors were legitimate. He also gained recognition as an advocate of civil rights and justice for dissenters by protesting the harassment of professors for antiwar views and Red Scare, the witch-hunts of Attorney General A. Mitchell Palmer, who had rounded up thousands of suspects and deported hundreds of alleged politically radical recent immigrants in 1919 and 1920, without the benefit of any kind of hearing. This was not because Stone agreed with the radicals. He had fully supported the American war effort, was disturbed by violent political and labor protests, and was skeptical of their theories of social justice. Yet he maintained his perspective and understood that it was dangerous for a society to permit the violation of a minority’s civil rights in the name of protecting the majority. Furthermore, by the end of his tenure as dean he had developed some sympathy for the radicals’ theory of sociological jurisprudence. He became involved in several projects to reform the law so that it would better serve the needs of the new urbanized, industrialized age. In 1923, Stone decided to resign as dean. Too much administrative work and too many disagreements with Columbia’s president Nicholas Murray Butler had left him feeling thwarted, and he elected to devote his time to practicing law. Six months later he was in Washington, D.C.

In March of 1924, Attorney General Harry M. Daugherty was forced to resign by President Calvin Coolidge. Rumors of his involvement in the scandals surrounding former president Warren G. Harding led to an attempt by Congress to investigate his conduct in office. Coolidge, in need of an attorney general who was not only capable but also of untarnished reputation, offered the job to Stone, who accepted. His first problem was to clear out the numerous incompetent political and volunteer appointees in the Washington and regional offices and replace them with trained people who would remain apart from politics and conduct themselves according to high professional standards. One of his early decisions was to appoint J. Edgar Hoover as temporary chief of the Bureau of Investigation (later the Federal Bureau of Investigation, or FBI). In time Stone concluded that this bright young lawyer was the right person and made the appointment permanent. There were complaints from members of the Senate and the House over the firings and over Stone’s strict enforcement of various laws, especially antitrust and prohibition laws. Stone ignored the complaints and remained characteristically persistent in his efforts, and the operation of his department began to show marked improvement.

On January 5, 1925, the public learned that Coolidge had nominated Stone to succeed Joseph McKenna as associate justice of the United States. His selection was undoubtedly the result of the president’s respect for Stone’s vigorous and impartial conduct of affairs as attorney general, the broad respect commanded by Stone from his professional colleagues, and the president’s personal regard for Stone. A few senators whose interests had been harmed by Stone as attorney general tried to obstruct his nomination, but they were too few and their cause too suspect to prevent confirmation on February 5, 1925.

Stone was well suited in temperament and training for the Supreme Court. He did not have a mind that quickly grasped all the ramifications of an idea or that was absorbed with fundamental philosophical issues. He was at his best proceeding slowly, as a court does, case by case, cautiously building interpretations of law and avoiding careless, sweeping generalizations that would rebound and cause trouble later. When Stone joined the Court, the United States appeared to be in the middle of an economic boom based on an unprecedented number of new inventions and products. To Stone, with his frugal New England habits, this rampant materialism seemed to threaten the nation’s spiritual values. He never idolized big business as so many of his contemporaries did, nor did he approve of those lawyers who seemed so willing to place their talents in the service of business without concern for matters of conscience or ethics. He feared lawyers had become thoroughly commercialized, to the detriment of professional standards. Throughout his long career on the bench, Stone was more concerned in economic issues about problems of the general welfare than he was about the interests or rights of the individual, an attitude that colored many of his decisions.

The social and economic stress on American society from the Great Depression worried Stone, although he had sheltered his own investments. As a friend and supporter of President Herbert Hoover, he was concerned about Hoover’s lack of initiative in dealing with the crisis. The election to the presidency of Franklin D. Roosevelt in 1932 did not fill Stone with hope, and while he applauded the moderate economic experimentation of the New Deal and voted to uphold some measures, several important laws were clearly unconstitutional in his opinion. On May 27, 1935, known as Black Monday, Stone voted with the other justices to declare two major New Deal laws unconstitutional, the National Industrial Recovery Act (NIRA) and the Frazier-Lemke Act (in Schechter v. United States and Louisville Bank v. Radford, respectively). The extent of the delegation of legislative authority to the executive branch of the government and the cavalier attitude of the New Deal NIRA law appalled Stone. He also agreed that the Frazier-Lemke Act constituted the taking of private property without compensation. The response of President Roosevelt to these and other cases in which the Court had declared parts of the New Deal unconstitutional was his famous Court Packing Plan. Even though Roosevelt experienced one of the major defeats of his career on this issue, several factors presented him with a Supreme Court more sympathetic to New Deal experimentalism. First, several members of the Court, including Stone, began to retreat from their position and give the establishment of economic policy to Congress out of fear that the New Deal Congress might agree to a major restructuring of the Court should the justices continue their opposition. There was no certainty that public opinion would save the Court again. Second, several justices retired, giving President Roosevelt enough appointees on the Court to ensure that his program would receive a favorable hearing in the future. Finally, the Court had already dealt with the most radical parts of the New Deal and found the remaining laws more moderate measures and, therefore, easier to accept.

By virtue of his seniority in service and his long history of dissent on behalf of liberal nationalism and judicial restraint on economic questions, Stone had become the intellectual spokesperson of the Supreme Court by 1940. When Chief Justice Charles Evans Hughes resigned in 1941, it was no surprise to anyone that Roosevelt nominated Stone as his successor. The Senate readily consented. Although the whole Court was now sympathetic to liberal nationalism, factions had emerged, and Roosevelt seems to have believed that Stone was the best person to bring harmony. In fact, however, Stone found it necessary to become a restraining influence to prevent serious damage to the Constitution and the American concept of free government. Stone feared the Court would give up too much to Congress, and he began to sound a new theme in his writings. In his opinion, it was appropriate to permit Congress wide latitude in setting economic policy because economic rights were inferior to political and civil freedoms; the Court must look closely at any law limiting civil or political rights and narrowly construe the constitutional powers of Congress. Stone found himself writing minority opinions again. It should be noted, however, for reasons that have never been clear, that Stone’s defense of civil and political liberty did not extend to their suppression by the military during World War II. This lapse was especially notable in those cases dealing with the internment of the Japanese on the West Coast.

Stone had begun to think about retirement as early as 1945. He wanted to leave before he could no longer carry out his duties. His health remained good, however, and he had not set a date. Events made the decision for him. On April 22, 1946, just as he was about to read three decisions in formal court session that he had prepared, Stone slipped into a state of unconsciousness from which he never recovered. He died at 6:45 p.m. at home with his wife and sons by his side, of a massive cerebral hemorrhage. The state funeral services were held in the Washington Cathedral on April 25.

Significance

In two major respects, Stone was ahead of his time. In his early years as an associate justice, often joining Oliver Wendell Holmes, Jr., and Louis D. Brandeis in dissents from the majority’s opinion, he elaborated a theory of judicial restraint to allow experimentation by Congress and state legislatures in establishing policies to cope with the massive changes permeating American society from industrialization and urbanization. He also believed the Court should consider the full historical context of events surrounding cases and not base decisions solely on the narrow reasoning of previous cases and legal doctrines from the past. He saw the Constitution as a starting point, not a discrete document. This loose handling of the concept of constitutionalism was a serious breach of American political and constitutional philosophy to many. During the crisis of the Great Depression, however, it provided a rationale for the Court to withdraw from the battles over economic legislation and survive with its powers intact.

As senior associate justice and then chief justice of the United States, Stone found it necessary to urge the Court to reassert itself on behalf of civil and political liberties. His opinions contained ideas and precedents that were again ahead of their time. They would not become popular until the later struggles over civil rights in the 1950’s. Both these achievements came at the cost, however, of demoting the economic and property rights of the individual to a secondary status. However, as Stone himself said, the justices on the Court are never free to decide the present without the past. The Court must move one step at a time.

Bibliography

Burns, James MacGregor. Roosevelt: The Lion and the Fox. New York: Harcourt, Brace and World, 1956. Probably the best single-volume political biography of Roosevelt. Covers the political-constitutional issues of the New Deal with much insight, though it is very favorable to Roosevelt.

Konefsky, Samuel J. Chief Justice Stone and the Supreme Court. New York: Macmillan, 1946. A study of Stone’s philosophy of constitutional interpretation, as it evolved in his written opinions from 1925 to 1943, by a contemporary. Dated but still useful for its coverage of specific issues and analysis of Stone’s jurisprudence.

McCloskey, Robert G. The American Supreme Court. Chicago: University of Chicago Press, 1960. A good short interpretive history of the Supreme Court, but tends to be biased in favor of the rise of liberal nationalism. Stone is mentioned only briefly.

Mason, Alpheus Thomas. Harlan Fiske Stone: Pillar of the Law. New York: Viking Press, 1956. Full of detail on Stone’s life, but overly favorable to Stone and lacking in-depth analysis of the significance of Stone’s constitutional philosophy.

‗‗‗‗‗‗‗. The Supreme Court from Taft to Warren. Rev. ed. Baton Rouge: Louisiana State University Press, 1968. A survey history of the Supreme Court from 1921 to 1967. While somewhat biased toward liberal nationalism in its account, this is still a useful summary of Court history. Contains a chapter on Stone.

Murphy, Paul L. The Constitution in Crisis Times, 1919-1969. New York: Harper & Row, 1972. Excellent, scholarly history of the Supreme Court from 1914 to 1969. Describes in some detail the hostility of the Court toward the New Deal before 1937 and the changes that followed the Judicial Revolution of 1937. Mentions Stone only in passing.

Renstrom, Peter J. The Stone Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-CLIO, 2001. A comprehensive account of the Supreme Court under Stone’s leadership, with information on its rulings, key figures, and legal legacy.

Schwartz, Bernard. The Supreme Court: Constitutional Revolution in Retrospect. New York: Ronald Press, 1957. A good coverage and analysis of the impact of the New Deal on the Supreme Court and the results of the Judicial Revolution of 1937 over the succeeding twenty years. Mentions Stone briefly.

Swindler, William F. Court and Constitution in the Twentieth Century. 2 vols. New York: Bobbs-Merrill, 1969. A sound, detailed, scholarly history of the Supreme Court from 1889 to 1968, which mentions Stone and his role in the development of constitutional doctrine.

Related Articles in Great Events from History: The Twentieth Century

1901-1940: July 26, 1908: Bureau of Investigation Begins Operation; December 10, 1924: Hoover Becomes the Director of the U.S. Bureau of Investigation; May 27, 1935: Black Monday; June 25, 1938: Fair Labor Standards Act.

1941-1970: June 14, 1943: Supreme Court Rules That States Cannot Compel Flag Salutes.