Stone, Harlan F. (1872–1946)

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STONE, HARLAN F. (1872–1946)

After finishing Amherst College and Columbia Law School (where in 1906 he became dean), Harlan F. Stone divided his time between teaching and practice in New York City. In 1923, President calvin coolidge, a former college mate from Amherst, appointed him attorney general of the United States. Less than a year later he became Associate Justice of the United States Supreme Court. In 1941 President franklin d. roosevelt, ignoring party labels, appointed him Chief Justice.

Experience gained as a teacher at the Columbia Law School had contributed directly to his preparation for the supreme bench. At the university, where he had time and opportunity for study and reflection, he developed ideas about the nature of law and the function of courts. Before donning judicial robes, Stone had argued only one case, Ownbey v. Morgan (1921), before the Supreme Court, adumbrating what was to become the major theme of his constitutional jurisprudence—judicial self-restraint. The correction of outmoded processes, he argued, ought to be left to legislatures rather than assumed by courts.

It seems ironical that Stone, a solid, peace-loving man, should have been in the crossfire of controversy throughout his judicial career. On the taft court, and also during a good part of Chief Justice charles evans hughes's regime, he differed from colleagues on the right who interposed their economic and social predilections under the guise of interpreting the Constitution. During his own chief justiceship Stone was sometimes at odds with colleagues on the left who were equally intent on using their judicial offices to further particular preferences.

Stone's moderate approach is revealed in his consideration of intergovernmental immunities from taxation—a vexing problem throughout the chief justiceships of Taft and Hughes. Rejecting the facile reciprocal immunities doctrine established in mcculloch v. maryland (1819) and collector v. day (1871), respectively, he held that the federal system does not establish a total want of power in one government to tax the instrumentalities of the other. For him, the extent and locus of the tax burden were the important considerations. No formula, no facile "black and white" distinctions sufficed to determine the line between governmental functions that were immune from taxation and those that were not. Stone elaborated these views in Helvering v. Gerhardt (1938) and graves v. new york ex rel o ' keefe (1939). Similarly, in cases concerning state regulations of economic affairs and state taxation of commerce, Stone rejected question-begging formulas such as "business affected with a public interest " or "direct and indirect effects."

Though habitually a Republican, Stone believed that increased use of governmental power was a necessary concomitant of twentieth-century conditions. "Law," he said, "functions best only when it is fitted into the life of a people." He made this point specific in his law lectures. This conviction sometimes aligned him with oliver wendell holmes and louis d. brandeis. Uniting the triumvirate was their view that a Justice's personal predilections must not thwart the realization of legislative objectives not clearly violative of the Constitution.

Stone's constitutional jurisprudence crystallized during 1936, the heyday of the Court's resistance to President Roosevelt's program of government control and regulation. In the leading case of united states v. butler (1936) the Court voted 6–3 to invalidate the agricultural adjustment act (AAA). Justice owen j. roberts and dissenting Justice Stone were about equally skeptical of the wisdom of the AAA. Their differences concerned the scope of national power and the Court's role in the American system of government. Stone thought that the majority had come to believe that any legislation it considered "undesirable" was necessarily unconstitutional. The Court had come to think of itself, as Stone said, as "the only agency of government that must be assumed to have capacity to govern."

The majority was haunted by the possibility that Congress might become "a parliament of the whole people, subject to no restrictions save such as are self-imposed." But, Stone countered, "consider the status of our own power." The President and Congress are restrained by the "ballot box and the processes of democratic government," and "subject to judicial restraint. The only check on our own exercise of power is our own sense of self-restraint."

Butler was neither the first nor the last time a dissenter expressly accused the court of "torturing" the Constitution under the guise of interpreting it. But no other Justice had previously used such strong language in condemning the practice.

In adkins v. children ' shospital (1923) the Court had declared unconstitutional the minimum wage for women. Justice george h. sutherland was the spokesman. Holmes dissented as did Chief Justice Taft. Adkins was still in good standing in morehead v. new york ex rel. tipaldo (1936) when Stone repeated his indictment: "It is not for the Court to resolve doubts whether the remedy by regulation is as efficacious as many believe, or better than some other, or is better even than blind operation of uncontrolled economic forces. The legislature must be free to choose unless government is rendered impotent. The Fourteenth Amendment has no more imbedded in the Constitution our preference for some particular set of economic beliefs, than it has adopted in the name of liberty the system of theology which we happen to approve."

In his war on the recalcitrant four (Pierce Butler, James C. McReynolds, Sutherland, and willis van devanter) Stone was sometimes allied with Holmes and Brandeis. Chief among points of agreement was their recognition of the need for a living law. As Holmes put it: "A slumber when prolonged means death." The essence of their creed was judicial self-restraint, recognized as a desirable rather than a realizable role.

The bond uniting them strengthened as the majority's doctrinaire approach became increasingly reactionary. Differences were exposed when Holmes, Brandeis, and Stone sometimes filed separate opinions in support of the same decision. In dissent Holmes, a gifted essayist addicted to generalization, often avoided the tough issues and "failed to meet the majority on its own ground." "This is a pretty good opinion," Stone remarked on one occasion, "but the old man leaves out all the troublesome facts and ignores all the tough points that worried the lower courts." "I wish," he once observed in grudging admiration, "I could make my cases sound as easy as Holmes makes his."

Stone's divergence from Brandeis was likewise most vividly portrayed in dissent. When the Court struck down legislation Brandeis favored in terms of policy, the erstwhile "People's Attorney" did not hesitate to use the Court as a forum to persuade others of its wisdom. "I told him [Brandeis] long ago," Holmes commented in 1930, "that he really was an advocate rather than a judge. He is affected by his interest in a cause, and if he feels it, he is not detached." Stone took specific exception to Brandeis's judicial activism. In reply to a note in which Brandeis invited Stone to join his dissent in Liggett Co. v. Lee (1931), Stone said: "Your opinion is a very interesting and powerful document. But it goes further than I am inclined to go, because I do not think it necessary to go that far in order to deal with this case.… I think you are too much an advocate of this particular legislation. I have little enthusiasm for it, although I think it constitutional. In any case, I think our dissents are more effective if we take the attitude that we are concerned with power and not with the merit of its exercises.…"

Without minimizing the great contributions of Holmes and Brandeis, it seems fair to conclude that in a logical as well as a chronological sense Stone was the one who, in both the old and the new Court, carried their tradition to fulfillment. Perforce it fell to him, as his former law clerk, Herbert Wechsler, said, "to carry through to victory and consolidate the gain."

Chief Justice Taft paid high tribute to Stone's pioneering, even as he warned of the danger in the former law teacher's method. Said Taft: "He is a learned lawyer in many ways, but his judgement I do not altogether consider safe and the ease with which he expresses himself, and his interest in the whole branch of the law in which he is called upon to give an opinion on a single principle makes the rest of the Court impatient and doubtful.…Without impeaching at all his good faith in matters of that sort, we find we have to watch closely the language he uses."

Viewing Stone's dissent in United States v. Butler as a "lodestar for due regard between legislative and judicial power," some commentators interpreted the 1937 judicial about-face as signifying well-nigh complete withdrawal of the Court from the governing process.

After 1937, when the Court's Maginot Line crumbled, Justice Stone feared that the guarantees of civil liberties might be wanting in effective safeguards. At first glance it does seem paradoxical that the leader of the campaign for judicial self-restraint in cases involving governmental economic regulation should have articulated the preferred freedoms doctrine. In an otherwise obscure case, Stone suggested in the body of the opinion that he would not go so far as to say that no economic legislation would ever violate constitutional restraints, but he did indicate that in this area the Court's role would be strictly confined. Attached to this opinion is a famous footnote suggesting special judicial responsibility in the orbit of individual liberties. (See united states v. carolene products company.)

Two years later, in Minersville School District v. Gobitis (1940), the Court voted 8–1 to uphold Pennsylvania's compulsory flag salute as applied to Jehovah's Witnesses schoolchildren against their parents' religious beliefs. Justice felix frankfurter, who spoke for the majority, wrote privately to Stone: "We are not the primary resolver of the clash. What weighs strongly on me in this case is my anxiety that while we lean in the direction of the libertarian aspect, we do not exercise our judicial power unduly, and as though we ourselves were legislators by holding too tight a rein on organs of popular government." (See flag salute cases.)

When Frankfurter learned that Stone was the lone dissenter, he was deeply disturbed. He pleaded: "That you should entertain doubts has naturally stirred me to an anxious re-examination of my own view.… I can assure you that nothing has weighed as much on my conscience since I came on this Court as has this case.…I'm aware of the important distinction which you so skillfully adumbrated in your footnote 4 in the Carolene Products Co. Case. I agree with that distinction: I regard it as basic. I have taken over that distinction in its central aspect."

Adolph Hitler had already unleashed his diabolical forces in Europe, and a widening conflict seemed inevitable. Frankfurter continued: "For time and circumstances are surely not irrelevant in resolving the conflict that we have to resolve in this particular case.… But certainly it is relevant to make the adjustment that we have to make within the framework of present circumstances and those that are clearly ahead of us."

Reflecting his New England heritage of religious liberty, Stone was not convinced. He replied: "I am truly sorry not to go along with you. The case is peculiarly one of the relative weight of imponderables and I cannot overcome the feeling that the Constitution tips the scales in favor of religion."

Stone won this battle in a second case involving the compulsory flag salute, West Virginia State School Board of Education v. Barnette (1943). By 1943 three other justices, hugo l. black, william o. douglas, and frank murphy , who had joined Frankfurter in upholding the compulsory flag salute in Gobitis, changed their minds. Two new appointees, robert h. jackson and wiley b. rutledge, agreed with Stone's dissent in the earlier case, thus transforming a vote of 8–1 to uphold the compulsory salute to a vote of 6–3 striking it down. Speaking through Justice Jackson, the Court declared: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not occur to us."

Stone had initially expressed the "preferred freedoms" doctrine tentatively, merely raising the question whether in the case of legislation touching rights protected by the first amendment there may be "narrower scope for the operation of the presumption of constitutionality" and whether such legislation might not be "subjected to more exacting judicial scrutiny." He first used the expression "preferred freedoms" in Jones v. Opelika (1942).

After Stone's death in 1946, the passing of Justices Murphy and Rutledge in 1949, and the intensification of the Cold War, the "preferred freedoms" doctrine fell into a constitutional limbo. Justice Frankfurter, still smarting from the second flag salute case, attacked the doctrine fiercely in kovacs v. cooper (1949) where, referring to "preferred freedoms," he wrote: "This is a phrase which has crept into some recent decisions of the Court. I deem it a mischievous phrase if it carries the thought, which it may subtly imply, that any law touching communication is infected with invalidity.… I say that the phrase is mischievous because it radiates a constitutional doctrine without avowing it."

dennis v. united states (1951), a case involving the last stage of the 1949 trial of eleven leaders of the Communist party of the United States for violation of the Smith Act of 1940, dealt the doctrine a serious blow. Yet even after Dennis some substance of the doctrine remained. In dissent Justice Black expressed the hope "that in calmer times, when present pressure, passions, and fear subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society."

Stone's guiding rule was judicial self-restraint, not self-abnegation. Before 1937 he criticized right-wing colleagues who equated what they considered economically undesirable legislation with unconstitutionality. After Roosevelt had reconstructed the Court, he was at logger-heads with judges on the left, equally intent, he thought, on reading their preferences into the constitution.

Repeated conflicts with Black and Douglas, who, he felt, were prone to resolve all doubt in labor's favor, alienated him. Stone's creativity was confined by the boundaries of the known. Any marked departure from existing principles left him "a little hurt, a little bewildered and sometimes even a little angry." When in 1945 he found himself pitted against judicial activists on the left, he dolefully reminisced: "My more conservative brethren in the old days enacted their own economic prejudices into law. What they did placed in jeopardy a great and useful institution of government. The pendulum has now swung to the other extreme, and history is repeating itself. The Court is now in as much danger of becoming a legislative Constitution making body, enacting into law its own predilections, as it was then. The only difference is that now the interpretation of statutes, whether "over-conservative' or "over-liberal' can be corrected by Congress."

Stone's conception of judicial conduct was almost monastic. He strove against almost insuperable odds to keep the Court within what he considered appropriate bounds. A judge should limit himself precisely to the issue at hand. Contradictory precedents should usually be specifically overruled. The Court ought "to correct its own errors, even if I help in making them." Stone's judicial technique recognized complexity. "The sober second thought of the community," he urged, "is the firm base on which all law must ultimately rest."

Stone advocated restraint, not because he believed a judge's preference should not enter law, but precisely because it inevitably did. The sharp barbs of his thought were intended for the flesh of judges, both right and left, who, without weighing social values, prematurely enforced private convictions as law. He strove not to eliminate subjectivity but to tame it.

As Chief Justice he was less impressive. In 1929, when it was rumored that President herbert c. hoover might elevate Stone as Taft's successor, the Chief Justice had opposed it, saying that the Associate Justice was "not a great leader and would have a great deal of trouble in massing the Court." Years later, Taft's assessment proved true. The bench Stone headed was the most frequently divided, the most quarrelsome in history. If success be measured by the Chief's ability to maintain harmony, he was a failure. Solid convictions handicapped him. Nor would he resort to the high-pressure tactics of Chief Justices Taft and Hughes. Believing profoundly in freedom of expression for others, no less than himself, he was slow to cut off debate.

Stone had an abiding faith in free government and in judicial review as an essential adjunct to its operation. He believed that radical change was neither necessary not generally desirable. Drastic change could be avoided "if fear of legislative action, which Courts distrust or think unwise, is not overemphasized in interpreting the document." A free society needed continuity, "not of rules but of aims and ideals which will enable government in all the various crises of human affairs, to continue to function and to perform its appointed task within the bounds of reasonableness."

Alpheus Thomas Mason
(1986)