Justice Stone joined Holmes and Brandeis in notable dissenting opinions
Harlan Fiske Stone, twelfth chief justice of the United States, began his Supreme Court service in 1925 by confounding those critics who feared he was not “liberal.” He soon joined Associate Justices Holmes and Brandeis in notable dissents and lived to see several of his minority stands become majority decisions.
In his last few years, he was found again increasingly in the minority in an often-divided court. His views, however, seldom veered from a liberal philosophy and they generally were regarded as a stabilizing force in deliberations and opinions of the tribunal.
From the start of his judicial service Justice Stone showed a capacity for long, hard work and a fondness for tackling intricate problems, technical as well as constitutional questions. These characteristics account for the large and varied list of opinions he wrote.
His “liberal” opinions and dissents rested in the main on two basic attitudes toward the law and Constitution. Mr. Stone believed that the court should interpret and define the statutes, but should not “enact” them. He felt that the Constitution should not stand in the way of federal and state experiments in economic and social legislation, and that the law, as a human institution, should be in line with human needs.
Played football at Amherst
A New England Republican who played rugged football at Amherst College when Calvin Coolidge was there, Mr. Stone owed his appointment as chief justice in June 1941 to President Roosevelt. That was the second historic instance in which a president elevated to the highest judicial office an associate justice who had been aligned with another political party. The first was President Taft’s appointment of Chief Justice White in 1910.
Justice Stone had been attorney general of the United States for about eight months when President Coolidge selected him for the Supreme Court. Early in 1924 he reluctantly agreed to take the Cabinet post and promptly set about reorganizing the Justice Department and restoring public confidence, shaken by revelations involving his predecessor, Harry Daugherty.
Although named to the Supreme Court in January 1925, Mr. Stone had to wait until March 2 to be confirmed and sworn in as an associate justice. In the Senate he was attacked not only for having been a law partner of a son-in-law of John Pierpont Morgan, but also, as attorney general, for having presented to a grand jury a case brought by Mr. Daugherty against Sen. Burton K. Wheeler.
Confirmed quickly in 1941
But when his name went before the Senate in 1941 for chief justice, he was confirmed in 11 minutes. Sen. George W. Norris of Nebraska arose to declare that in 1925 he had been “entirely wrong” in opposing the Stone nomination and that “one of the greatest satisfactions of my public life is to rectify that now.”
Justice Stone was born October 11, 1872, on a farm in New Hampshire and took the oath as chief justice in a log cabin in a national park, high in the Rocky Mountains. Between those two events was a wide range of activity, which included 13 years as dean of the law school of Columbia University and other years of practicing law in New York City and teaching school in Massachusetts and Brooklyn.
From his farm near Chesterfield, New Hampshire, Mr. Stone went first to Massachusetts Agricultural College at Amherst to study scientific agriculture. As a result of a misunderstanding, which reportedly hit a climax when he punched a professor who called him a liar, Mr. Stone transferred to Amherst College. His ambition then was to become a physician and in 1894 he obtained his bachelor of science degree.
In the class behind him was Calvin Coolidge, whom he did not know well at the time, but recalled later as a “purposeful” lad. What seemed to have a more immediate effect on the course of his life was a proficiency he developed in college debating and an athletic prowess which made him “center rush” on one of Amherst’s legendary football teams – the one that beat Dartmouth 30-0. He stood among the first of his class candidates for Phi Beta Kappa keys, and he was voted as the 1894 class member most likely to succeed.
Law graduate of Columbia
Though his thoughts had been turning to the law, he taught chemistry and physics at Putnam High School, Newburyport, Massachusetts, for two years. Returning to Amherst he took his master of arts degree in 1897 and then went to Columbia Law School, where he won his bachelor of law degree in 1898. Even while at Columbia, he liked teaching so well that he was a history instructor at Adelphi Academy in Brooklyn. For almost seven years while practicing law he lectured at Columbia. He entered the New York law office of Wilmer and Canfield which, in 1913, became the firm of Satterlee, Canfield and Stone. Yet he never wholly abandoned teaching, even while practicing law.
In 1910, he became Kent professor of law and dean of the law school at Columbia and remained there for 13 years. Besides adding to his renown as a scholar and legal expert, he attracted attention as an educator who opposed “nostrums” and shortcuts. He advocated strict entrance requirements and searching bar examinations to weed out incompetents.
Justice Stone’s first official contact with federal government service came in 1918 when Secretary of War Newton D. Baker selected him as a member of a committee to review cases of conscientious objectors to the World War draft. Justice Stone later wrote a book on the subject.
Advised Coolidge
In 1923, he resumed his private law practice. He entered the law firm of Sullivan and Cromwell and specialized in corporation law, estates and taxes. One day, early in 1924, he was invited to the White House by President Coolidge who asked his ideas about prosecution of the oil fraud cases. Mr. Stone advised removing Daugherty.
As Justice Stone was about to go, Mr. Coolidge suddenly asked: “Will you take it?” Later he agreed to accept the appointment as attorney general. Justice Stone reportedly was told by President Coolidge: “I want you to conduct your office as you would your private law practice, but with the public as client.”
His tenure in the Justice Department had plenty of fireworks. The “Wheeler case” was political dynamite at the time. Sen. Wheeler and Sen. Tom Walsh of Montana had spearheaded the attack on Daugherty and others, and the ousted attorney general hit back by bringing charges against Wheeler. Justice Stone reviewed the charges and made the then unprecedented move of appearing personally before the Senate Judiciary Committee to recommend that the charges be investigated. He instigated grand jury proceedings. Sen. Wheeler was indicted but later acquitted.
A sideline activity which Justice Stone reportedly did not relish was to take the stump during the 1924 election campaign. He confined most of his speech-making to defending the Coolidge administration by denouncing Sen. Robert M. La Follette, the elder, who as a presidential candidate proposed a legislative limitation on the Supreme Court’s power to declare laws unconstitutional.
Revamped department
Justice Stone was no less vigorous in reforming and revamping the Justice Department. It was during this reorganization that the Federal Bureau of Investigation was given a new director, J. Edgar Hoover.
Although Justice Stone heard himself bitterly assailed in various quarters when President Coolidge sent his name to the Senate for the Supreme Court seat, he built up so notable a record on the bench that within five years he was the member most prominently mentioned to succeed Chief Justice William Howard Taft. President Hoover, although a close friend of Justice Stone, chose Charles Evans Hughes.
The next 11 years, before he became chief justice, gave Justice Stone an unusual opportunity to increase his already high stature among the “liberals” on the Supreme Court. He did so not only in his dissents, but, especially after 1936-7, by being usually with the majority in decisions favorable to some of the basic aims of the Roosevelt administration.
Upheld AAA
Prior to the 1936-7 term, he sided with his colleagues in killing NRA. On many other New Deal issues, however, he was with Justices Brandeis and Cardozo in the minority favoring the Roosevelt policies. He dissented from majority rulings declaring the Agricultural Adjustment Act an unconstitutional use of the taxing power. He was the lone dissenter from the decision against the gold clause cancellation in government bonds, but he was with Chief Justice Hughes and Associate Justices Brandeis, Cardozo and Roberts in upholding the constitutional power of Congress to abrogate private obligations to pay in gold.
One of his most notable dissents was in opposition to the majority opinion invalidating a New York law setting minimum wages for women. In that case he found it “difficult to imagine any grounds” for the majority opinion other than “personal economic predilections.” Not long after, Justice Stone saw his stand vindicated when the court reversed itself and upheld a similar minimum wage law of the State of Washington.
The minimum wage and the AAA dissents of Justice Stone are frequently cited as evidence of his fundamental judicial philosophy. As with Justice Holmes, he believed that the duty of laying down policy and defining the general boundaries of law should rest with the federal and state legislative branches, whereas, as he once wrote, “courts are concerned only with the power (of legislatures) to enact statutes, not with their wisdom.’’
Dissented on child salute
Although his major dissents became less numerous for several years after the appointment of new justices, he uttered perhaps his best-known dissent only a year before he became chief justice. In 1940, he was the only one to oppose a majority decision that school children should be required to salute the American flag. In the case at issue the children held that religious beliefs would be violated by saluting the flag.
“The Constitution,” he wrote, “expresses more than the conviction of the people that democratic processes must be preserved at all costs. It is also an expression of faith and a command that freedom of mind and spirit must be preserved which government must obey if it is to adhere to that justice and moderation without which no government can exist.
“I cannot say that the inconveniences which may attend some sensible adjustment of school discipline, in order that the religious convictions of these children may be spared, presents a problem so momentous or pressing as to outweigh the freedom from compulsory violation of religious faith which has been thought worthy (in other cases) of constitutional protection.”
Among those that still hold great attention was his lone dissent from the majority opinion freeing labor unions from prosecution under the 1934 Federal Anti-Racketeering Act in so-called “strong-arm” cases. The case at issue involved charges that a New York union forced truck owners entering the city from out of state to hire a union member to drive and unload trucks.
Majority opinions
The major opinions he read as chief justice in recent years included those which:
Allowed federal agencies regulating utility rates to limit such rates to “fair return” on only so much of the company’s capital as had been “prudently invested”; permitted states to impose sales or use taxes on national defense contracts made on a cost-plus basis, and held that intrastate transactions which compete in a substantial way with interstate business should be covered by the federal power over marketing of the nation’s products. The case in point concerned intrastate sales of Illinois milk in competition with milk brought in from other states. Justice Stone also dissented from the majority ruling in a celebrated decision that cities could require license fees from members of “Jehovah’s Witnesses” who distributed literature seeking contributions.
Among better known majority opinions written or concurred in by Justice Stone were those upholding constitutionality of the 1938 federal wage-hour law; sustaining the power of Congress to regulate primary as well as general elections in which members of Congress would be chosen; ruling that federal government employes are subject to state income taxes, and holding that “regulation of prices and the suppression of competition among the purchasers of patented articles” are not allowed by the Sherman Anti-Trust Act and the patent laws.
Expert on tax matters
One of the most recent majority opinions read by the chief justice upheld legality of the military court proceedings which ended in a death sentence and execution of the Japanese Gen. Yamashita.
In physical appearance as well as scholarly study and long legal experience, Harlan F. Stone not only “looked the part” of chief justice, but he also devoted tireless energy and profound thought to the obligations of that office.
When he first ascended the Supreme Court bench, he was a recognized expert on tax matters and patent law. He nevertheless wrote opinions on a variety of other subjects. From an administrative standpoint, he has been praised for following the practice of Chief Justice Hughes in trying to keep the court calendar up to date, despite recent difficulties resulting from the absence of Justice Robert H. Jackson at the war criminal trials in Germany.
The physical strength he built up during his youth and later with President Hoover’s “medicine ball cabinet” worked in his favor. On his 70th birthday in 1942, he said he had no intention of retiring, despite the inducement of a pension at his full pay of $20,500. To photographers he jokingly remarked on his 72nd birthday, that he would pose for them again in 20 years.
Ill for time in 1936
Associates remarked that they could recall only one spell of illness that kept him off the bench during the past 21 years. That was in 1936. When he went on the Supreme Court in 1925, he was the youngest member. When he died, he was the oldest, but his record of years still did not match those of Justice Holmes who retired at 91, and of seven others who were 80 or more when they stepped down.
There have been only two others who served as associate justice and chief justice – Charles Evans Hughes and Edward Douglass White.
Mr. Stone was the last justice appointed by a president other than Presidents Roosevelt or Truman. Although former Chief Justice Hughes and former Associate Justices Owen Roberts and James McReynolds are living, Chief Justice Stone was the last of the active members who sat on the bench during President Roosevelt’s battle to reorganize the Supreme Court. Still another near-precedent was his promotion as chief justice by a Democratic president.
The death of Justice Stone leaves only one Republican on the bench – Associate Justice Harold N. Burton, former Ohio senator, appointed several months ago by President Truman when Justice Roberts resigned.
Started day with walk
Mr. Stone hao been described as blending a genial disposition and an almost homespun quality with a sharpness of intellect and a high consciousness of the dignity and responsibility of his office. He began his days early, usually at 6:30 or 7, with a 45-minute walk. His principal diversion and vacation relaxation was fishing, but he never made himself out to be a sportsman.
On the bench he made an impressive and sometimes stern appearance. But he had a twinkling eye, pleasing grin and an unruly lock of hair which often fell over his forehead. When lawyers before the court stayed on the point at issue, he was a patient, interested listener and a frequent, kindly questioner. He reserved his rebukes for counsel who resorted to evasions, rambled or failed to come prepared on schedule without proper excuse.
He and Mrs. Stone, whom he married in Chesterfield, New Hampshire, September 9, 1899, lived quietly here. The chief justice’s associates say his main absorption was the law, and he devoted many hours of the day and night to its problems. But he and other interests, mainly music and art, and was a member of the board of the National Gallery of Art.
Shied at political tasks
Three years ago, at President Roosevelt’s request, he headed a special commission to catalogue art treasures stolen or believed to have been destroyed in enemy occupied countries.
As a member of the Supreme Court, however, he declined on several occasions to serve in official capacities which he considered to be tinged with politics or otherwise incompatible with his office. He refused in 1944 to be “umpire” in the proposed war ballot commission arrangement to supervise the soldier vote. In 1942 he was unwilling to take part in a proposed inquiry of the rubber supply situation as it affected war needs.
Much earlier in his career, especially when dean of the Columbia Law School, he spoke out on many public questions. As a Supreme Court member he appeared infrequently in public, except on such occasions as receiving honorary degrees awarded by Princeton, Tufts and Oberlin.
One of his rare formal speeches was in New York in May 1944, when he declared: “These are times of shifting standards and moral confusion. It is due more than all else to the fact that mankind, despite its struggle upward from barbarism, is not yet willing to accept the truth. There can be no civilized society, there can be no peace or happiness among men, unless all men enjoy freedom of the spirit of mind; and I might say also, unless we preserve intact our capacity for moral indignation against cruelty and injustice and the urge to give it vigorous expression.”
New England ancestry
The ancestry of Justice Stone dates back to the 17th century in Massachusetts. His first American ancestor settled in Watertown, Massachusetts, in 1635. Justice Stone was the son of Frederick Lauson Stone and Ann Sophia (Butler) Stone. His boyhood was that of the typical farm lad of his time, and to it, as well as to his athletic career at Amherst, he could attribute his tall and sturdy frame.
His association with the Columbia Law School began as a student but included service as a lecturer from 1899 to 1902, an adjunct professor in 1903 and a full professor in 1905, before he was named dean in 1910.
Articles written by Justice Stone are still noted in legal circles, but he was far from being merely an academic expert or “office lawyer.” He practiced actively in the courts in several important cases.
When Attorney General A. Palmer Mitchell began the so-called “red raids,” Justice Stone held no brief for Bolshevism but he vigorously demanded protection of aliens as well as American citizens in their constitutional rights. In connection with a similar issue raised at Columbia, he thus stated his views on freedom of speech:
“Restraints upon the intellectual freedom of the university teacher will inevitably impair confidence in his teachings and ultimately undermine and destroy his influence. But especially do I hold to the opinion that the university professor should voluntarily renounce the role of the propagandist and the agitator. The university stands for scientific truth. Its attitude must never be that of a partisan, but rather that of the judicially minded.”
Taught while dean
Fellow members of the Columbia faculty in Justice Stone’s time often commented on his “extraordinary capacity for intellectual labor.” In addition to handling the administrative job of dean, he did as much teaching as any other professor, kept in daily touch with a law practice for several years and contributed to numerous law journals.
When he went to the Justice Department, he issued a brief statement before plunging into the difficult reorganization task. “There is nothing quite so vital to the future well-being of this Republic,” he declared, “than that its laws should be enforced and respected. And by that, I mean all its laws.”
One of his first orders as attorney general was to direct all U.S. attorneys throughout the country to “urge the courts to give more severe sentences to violators of the liquor laws.” He also moved with dispatch to push pending legislation and clear up federal court dockets.
