(b. Chesterfield, N.H., 11 Oct. 1872; d. Washington, D.C., 22 Apr. 1946; interred Rock Creek Park, Washington, D.C.), associate justice, 1925–1941, chief justice, 1941–1946. Republican Harlan Fiske Stone was the single university professor ever to serve as chief justice and, like Democrat Edward Douglass White (chief justice, 1910–1921), one of only two chief justices appointed by a president from a different political party. Stone is one of three promoted directly from an associate justiceship (White again, and William Rehnquist, chief justice, 1986–). The only other chief justice with any prior Supreme Court service was his predecessor, Charles Evans Hughes (associate justice, 1910–1916, and chief justice, 1930–1941), with whom he worked closely for eleven years.
Stone, like White, was promoted in part because of support from fellow justices, including Hughes. Of the five Republican justices during Franklin D. Roosevelt's early presidency, Stone most frequently voted to uphold New Deal legislation against constitutional challenge—more frequently indeed than two of the Court's four Democrats (Justices Pierce Butler and James McReynolds). Like Hughes, Stone first experienced being the runner‐up choice. Hughes quite happily remained secretary of state after President Harding appointed William Howard Taft to the chief justiceship. Stone, having served five years under Taft, continued under Hughes. Stone became on his 1941 promotion by Roosevelt the only chief justice potentially to profit from experiencing the leadership styles of two predecessors.
Stone's leadership little resembled either predecessor's. Where Taft used the illusion of amiable bumbling and much politicking to secure prevalence of his constitutional views and Hughes was said to play his colleagues adroitly like stops on a cathedral organ, Stone favored reasoning cases out at length (see Chief Justice, Office of the). The unintended accompaniment was an upsurge of strident dissents and public backbiting among the associate justices. Scholarly appraisals have debated the relative causal importance to two factors: an unusual number of very bright but very prickly personalities among the associate justices; and Stone's reluctance to alleviate conflict. However, some rise in antagonism among the justices was probably inevitable as the Court during the early 1940s moved away from issues of federalism and economic regulation and toward civil liberties and civil rights. Later chief justices have experienced at least as much intra‐Court disagreement.
Born in rural New Hampshire in 1872, Stone was the son of Frederick Lawson Stone, a farmer, and Ann Sophia Butler. Later Stone identified New England's hard‐to‐work granite soil as a prime source of the Yankee virtues of diligence, civic responsibility, and independence, which he both prized and exemplified. However, it was the burly teenaged Stone's specific dislike of work on the family's farm in Amherst, Massachusetts, that led him to attend college. Expelled from Massachusetts Agricultural College for accidentally assaulting the college chaplain during a freshman‐sophomore chapel melee, Stone went through Amherst College playing varsity football, editing the college newspaper, being thrice elected class president, and graduating in 1894. He financed his Columbia Law School education by teaching high school and received his law degree in 1898. A few months later, he accepted a Columbia law faculty position. In 1899 he married Agnes Harvey, whom he had known from childhood summer visits to his New Hampshire birthplace. Very close through almost forty‐seven years of marriage, they had two sons, one a prominent New York lawyer and the other a Harvard mathematics professor elected to the National Academy of Sciences. Enthusiastically encouraged by Stone, Agnes Harvey Stone reached sufficient excellence as a painter for the Corcoran Gallery twice to exhibit her landscapes.
Stone's legal career developed along two paths—the primary one in academia, which climaxed with his deanship of Columbia Law School (1910–1923), and a secondary one in corporate practice that peaked with his appointment as head of the Sullivan and Cromwell litigation department in 1923. His writings—especially “reformist” law review articles on rights of trust beneficiaries, bankers' duties, and specific performance of contracts—widely influenced judges. His activities in building a research‐oriented faculty and defending free speech rights of professors and socialists became known throughout the legal community. In 1924 President Calvin Coolidge named Stone attorney general to clear the Justice Department of scandals inherited from the Harding administration.
Although some western senators feared that Stone's Wall Street links would make him excessively probusiness, corruption‐investigating activism dominated his short term as attorney general. Nonetheless, there was Senate opposition when Coolidge in January 1925 nominated Stone to the Supreme Court. Always the straight‐forward rationalist, Stone proposed what was then a novelty, that he answer questions in person before the Senate Judiciary Committee—thus inventing the current practice. So disarmingly intelligent was his testimony that the final Senate vote for confirmation was 71 to 6.
Between 1925 and 1936 Stone's most significant role was dissenting (often with Louis Brandeis, and Oliver W. Holmes or Benjamin Cardozo) against Taft and his strongest allies, Democrats Butler and McReynolds and Republicans George Sutherland and Willis Van Devanter. Continuing past Taft's retirement, they became known as “the four horsemen” (of the Apocalypse) opposing New Deal economic legislation. Even before the New Deal, Stone thought they were advancing outlandish positions that made the laissez faire of their turn‐of‐the‐century predecessors seem moderate. For example, Di Santo v. Pennsylvania (1927) involved a Pennsylvania fraud statute based on a 1910 New York statute signed by Charles Evans Hughes, then New York governor. To protect semiliterate immigrant men from swindlers selling fake cheap tickets for transporting families left behind, both states required licenses and bonds of steamship ticket sellers. Hughes had seen no constitutional barrier. Yet Taft and the “horsemen” found an unconstitutional “direct burden” on Congress's Commerce Clause power, despite congressional silence on the matter (see Commerce Power). As Brandeis pointed out, Pennsylvania's statute affected the flow of commerce far less than many state regulations that earlier Courts had sustained—for example, compelling a railroad to eliminate grade crossings even if the expense threatened its solvency. In Stone's view, the majority was applying a test “too mechanical, too … remote from actualities, to be of value” (p. 44).
Three years into the New Deal, the “four horsemen,” often joined by Owen Roberts (1930–1945), and occasionally by Hughes, having told the states they could not regulate much because of Congress's commerce power, were telling Congress it could not regulate much either because of the states' police power. Thus in Railroad Retirement Board v. Alton R.R. Co. (1935) a 5‐to‐4 majority barred Congress from requiring interstate railroads to provide pensions for railway workers. Though not convinced New Deal legislation was wise, Stone ridiculed the 6‐to‐3 majority reasoning of Owen Roberts's opinion in U.S. v. Butler (1936) as having absurd consequences. “The government may give seeds to farmers, but may not condition the gift upon their being planted … may give money to the unemployed, but may not ask … those who get it … to support their families” (p. 85).
In Morehead v. New York ex rel. Tipaldo (1936) the “four horsemen” and Owen Roberts not merely rejected Hughes's centrist Republican constitutionalism. They underlined that they were to the right even of Taft by reiterating the doctrine of a 1923 women's minimum wage case, Adkins v. Children's Hospital; in Adkins the D.C. regulation forbade employers paying women below what the cost of living required for health. Though Taft had seen nothing wrong with that, the “four horsemen” and one other justice had asserted that the *Fourteenth Amendment's Due Process Clause required striking it down. The employer could be prosecuted even if the “health standard” required him to pay more than the value of the services rendered. The New York statute sought to cure that defect by forbidding only wages both below the health standard and below the value of the services rendered. Hughes vainly argued for upholding the New York law by distinguishing Adkins; Stone vainly urged overruling Adkins.
Stone's dissents proceeded from three basic principles he thought should control constitutional interpretation respecting government regulation of the economy. First, the Constitution gives the appropriate level of government the power to govern. Second, as he observed in Morehead, the power to govern changes to meet changing conditions: “problems of poverty, subsistence, health … a generation ago … were for the individual to solve; today they are the burden of the nation” (p. 635). Third, “It is not for the courts to resolve doubts whether the remedy … is … efficacious … or is better even than the blind operation of uncontrolled economic forces” (p. 635). Less than a year later, in the aftermath of Roosevelt's court‐packing threat, changed voting behavior (chiefly by Roberts), and retirements, Stone's dissenting constitutional views were fast becoming the law of the land.
Most scholarly appraisals of Stone, written in the mid‐twentieth century, lauded his jurisprudence in other areas—particularly executive power and civil liberties. To a later generation, witness to the growth both of an imperial presidency and of civil rights, two qualifications may be in order. First, Stone's occasional qualms about the Court's expansions of presidential power were of little consequence. He later regretted having said nothing when Sutherland, in U.S. v. Curtiss‐Wright (1936), allowed the president almost unconfined foreign policy powers. In 1942 Stone carried only the other remaining pre‐Roosevelt justice (Roberts) with him when dissenting from U.S. v. Pink, which permitted the president to override state law and circumvent the Senate treaty‐making power in order to make executive agreements with other countries (see Treaties and Treaty Power).
Second, when executive powers collided with civil liberties during World War II, Stone was sometimes but not always a stout defender of the latter. Least satisfactory today seems his upholding punishment of Americans of Japanese ancestry for disobeying curfew laws (Hirabayashi v. U.S., 1943) and sending them to concentration camps (*Korematsu v. U.S., 1944) without prior inquiry as to their individual loyalty. Irony, at least, attaches to one of his justifications: “[S]ocial, economic and political conditions since the close of the last century … have intensified their solidarity and in large measure prevented their assimilation as an integral part of the white population” (Hirabayashi, p. 96).
However, much of the Court's history since Stone's death in 1946, which ended the briefest chief justiceship since 1801, is the history of working out affirmatively the implications of one of the Court's most quoted passages. That is footnote four of Stone's opinion in U.S. v. Carolene Products (1938).
Stone was important in beginning the history of drawing out the implications of civil rights. More than any other justice he was responsible for maneuvering the Court over nine years from holding the so‐called white primary constitutional (Grovey v. Townsend, 1935), through declaring that having one's vote in a primary counted fairly was a federally enforceable right (U.S. v. Classic, 1941), to ruling the white primary unconstitutional (Smith v. Allwright, 1944). Stone's views prevailed in the First Amendment free exercise of religion issue concerning whether Jehovah's Witness schoolchildren could constitutionally be forced to salute the flag. In 1940 he had lost 8 to 1 to Frankfurter who thought in Minersville v. Gobitis they could; in 1943, Stone won 6 to 3, assigning (as he frequently did when his earlier minority position came to prevail) another justice (Robert Jackson) to write the court's opinion in *West Virginia v. Barnette.
Few who came to maturity steeped in the mores of nineteenth‐century America did as much as Stone to adapt Court and Constitution to the problems of the twentieth century. Among the most important sources of his achievements was a deep‐running psychological trait of anticipatory prudence. It was most evident doctrinally in adjudicating New Deal legislative efforts to cope with the aftermath of the great October 1929 stock market crash. But it operated on a practical level too. In spring 1929 Stone decided that the market was getting dangerously high. He converted his considerable stock holdings into cash. While the “four Horsemen” bucked, Stone rode through Depression and New Deal financially secure as well as jurisprudentially victorious.
Bibliography
- Alpheus Thomas Mason,
Harlan Fiske Stone: Pillar of the Law (1956). - Charles Herman Pritchett,
The Roosevelt Court: A Study in Judicial Politics and Values , 1937–1947 (1948). - Merlo J. Pusey,
Charles Evans Hughes , 2 vols. (1963). - Herbert Wechsler, Mr. Justice Stone and the Constitution,
Columbia Law Review 46 (1946): 764
— A. E. Keir Nash
