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Justice Stone participated in 760 cases.
Joined with Majority631
Concurring in Judgment2
Did Not Participate13
Judgment of the Court1

Stone, Harlan Fiske

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Birth: October 11, 1872, Chesterfield, New Hampshire.

Education: Amherst College, A.B., 1894, M.A., 1897; Columbia University, LL.B., 1898.

Official Positions: U.S. attorney general, 1924–1925.

Supreme Court Service: Nominated associate justice by President Calvin Coolidge, January 5, 1925, to replace Joseph McKenna, who had retired; confirmed by the Senate, February 5, 1925, by a 71–6 vote; took judicial oath March 2, 1925; nominated chief justice by President Franklin D. Roosevelt, June 12, 1941, to replace Charles Evans Hughes, who had retired; confirmed by the Senate, June 27, 1941, by a voice vote; took judicial oath July 3, 1941; served until April 22, 1946; replaced by Fred M. Vinson, nominated by President Harry S. Truman.

Death: April 22, 1946, Washington, D.C.

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Harlan Fiske Stone
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Harlan Fiske Stone

Harlan Fiske Stone, the son of New England farming parents, was born on the edge of the obscure village of Chesterfield, New Hampshire. During his eventful life he was a New York attorney, dean of Columbia Law School, and attorney general of the United States. He served twenty-one years on the Supreme Court. In fact, he was the only jurist in American history to occupy every seat on the Court—from the most junior associate justice's chair to the center seat of the chief justice. By the time of his death in 1946 he had become one of the best known and most beloved figures in American legal history.

As a boy, Stone was large for his age and excelled in sports, especially football. He had a sharp, methodical mind and developed into a first-rate student. Called “Doc” by his close friends, Stone was popular and a student leader at every level of his education. A rare flash of youthful temper, however, led to his expulsion from the Massachusetts Agricultural College in 1890. He then enrolled at nearby Amherst College. There Stone made the acquaintance of the young Calvin Coolidge, who would later nominate him to the nation's highest court. Prophetically, Stone's Amherst classmates predicted that “Doc Stone will take warning and proceed to be the most famous man in [the class of]'94.”

After a brief stint as a high school teacher, Stone enrolled in Columbia Law School, where his diligence and acute intelligence led to more academic success and accolades from his professors. Graduating in 1898, Stone was admitted to the New York bar and went into practice with the New York City firm of Wilmer and Canfield. He also began teaching part-time at Columbia Law School. Stone relinquished his adjunct teaching appointment in 1905 to devote himself to his law practice, but in 1910 he accepted an appointment as professor and dean of the law school. As a teacher, Stone was enamored of the case method, which was then becoming the norm at the nation's most prestigious law schools. By all reports, he was a challenging, even inspiring, professor. As a dean he handled administrative work competently but without relish. One of the things that troubled him as a law school administrator was what he saw as “the influx to the bar of greater numbers of the unfit.” This prejudice, fully consonant with upper-class thinking of the World War I period, would be abandoned during Stone's later years on the Supreme Court.

Dean Stone maintained the trust of the law faculty at Columbia, but he had great difficulty working with the autocratic university president, Nicholas Murray Butler. In 1923, smarting from a series of skirmishes with Butler and worn down by “administrivia,” Stone resigned and accepted a remunerative position with the esteemed Wall Street firm of Sullivan and Cromwell.

Stone's reentry into private practice was short-lived. The very next year President Coolidge chose Stone to be attorney general. Stone came into the Justice Department with a mandate to eliminate the corruption permitted by his predecessor, Harry M. Daugherty. Stone succeeded so well in cleaning up the “Daughteyism” in the department that some Demo-cratic partisans believed his 1925 nomination to the Supreme Court was sparked by the Republican Party's desire to have him “kicked upstairs.” Stone's most enduring legacy from his Justice Department tenure may have been his selection of the twenty-nine-year-old J. Edgar Hoover to head the recently established Federal Bureau of Investigation.

Stone was the first nominee to the Court to appear before a Senate confirmation hearing to answer questions. Despite charges that he was “J. P. Morgan's lawyer” (his firm had acted as counsel for the House of Morgan), Stone handled the senators' questions deftly and was confirmed by a vote of 71 to 6.

The Court that Stone joined in 1925 was headed by the affable William Howard Taft, who believed in “massing the Court.” He attempted to present a unified judicial front by discouraging dissenting or concurring opinions. For his first term, Stone dutifully followed the lead of the chief justice and stifled any urges to dissent. To Court watchers of the mid-1920s, Stone looked to be another “safe Republican.” His forte as a professor and attorney had been in financial matters, especially tax and patent law, and he could be counted on for solid opinions in complex but essentially uninteresting private law cases. In a Court that was coming to be dominated by constitutional issues, however, most legal experts predicted that Stone would act as a cipher for Taft.

During his second term on the Court, Stone began to slide away from Taft's shadow. He often refused to join the opinions of the chief justice and the Court's “Four Horsemen” (conservatives Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter). In moving metaphorically to the left of the bench, Stone frequently found himself in league with two giants of Supreme Court history, Louis Brandeis and Oliver Wendell Holmes. The phrase “Holmes, Brandeis, and Stone dissenting” became a frequent litany at the end of opinions by Taft and the Four Horsemen. Some of these dissents, particularly in civil liberties cases, were among the most eloquently phrased statements in the Court's history. But most of the truly classic dissents of the period—in cases such as Olmstead v. United States (1928)—came from Brandeis or Holmes, not Stone.

As the silent partner in this triumvirate, Stone was generally overlooked or underestimated. It is true that he did not possess the epigraphical eloquence or the stark philosophical principles of Holmes, nor did he manifest the crusading zeal or prodigious commitment to factual documentation of Brandeis. Although Stone generally permitted his senior brethren to speak for him, he was a profound thinker with clear principles of his own. In his passion for judicial self-restraint in economic regulation cases, he was every bit the equal of Brandeis or Holmes. If Congress or the state legislatures devised a particular regulatory statute, Stone was loath to strike it down unless it was totally lacking in a reasonable legislative foundation. On the other hand, if the legislatures came up with a statute that impinged upon the civil liberties of selected Americans, Stone was as quick as his two esteemed colleagues to vote against its constitutionality.

Stone would not begin to speak regularly for the liberal dissenters on the Supreme Court until the 1930s. By then, Holmes had retired and was replaced by Benjamin Cardozo, and a new chief justice, Charles Evans Hughes, had taken Taft's place. Hughes had served on the Court from 1910 to 1916, but resigned to seek the presidency; in 1930 he became the first justice to return to the Court after a resignation. Like Taft, Hughes was interested in massing the Court around single majority opinions, but he was even less successful at it than Taft. In part, Hughes's failure to mold a unified Court was due to Stone's emergence as a consistent and strident opponent of judicial conservatism. In addition, unanimity on the Hughes Court was frustrated by the complexities of the Great Depression and the controversial New Deal legislation that demanded judicial review.

Although a lifelong Republican and private critic of the New Deal, Stone was seldom disposed to exalt his own policy preferences over those of the nation's elected representatives. One of Stone's greatest opinions, his dissent in United States v. Butler (1936), offers a good illustration of his judicial philosophy in full flower. The case involved the Agricultural Adjustment Act (AAA) of 1933, one of the most important pieces of legislation in the early New Deal. Speaking for the six-member Court majority in Butler, Justice Owen Roberts held that the AAA processing tax, which furnished revenue to underwrite crop subsidies and soil restrictions, was both an unconstitutional infringement on the states' rights to regulate agriculture as protected by the Tenth Amendment and an unreasonably broad reading of the clause in Article I that extends to Congress the right to “provide for the …. general Welfare.”

Stone believed that the majority in Butler read the Constitution much too narrowly. He maintained that courts should not question the means by which Congress elected to carry into operation its delegated powers. In a classic justification of judicial self-restraint every bit as eloquent as any ever uttered by Holmes or Brandeis, Stone submitted:

The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government.

Later in the opinion, he added: “It is a contradiction in terms to say that there is power to spend for the national welfare, while rejecting any power to impose conditions reasonably adapted to the attainment of the end which alone would justify the expenditure.”

At the end of the 1935–1936 term, Stone wrote his sister to lament that during that year the Court's majority had been “narrow and obscurantic in its outlook.” Referring to the term just completed as “one of the most disastrous in its history,” Stone ventured the following: “I suppose no intelligent person likes very well the way the New Deal does things, but that ought not to make us forget that ours is a nation which should have the powers ordinarily possessed by governments, and that the framers of the Constitution intended that it should have.”

Throughout the 1930s, Stone privately complained that Chief Justice Hughes kept him on what he termed “short rations,” that is, assigning Stone the mundane financial cases while saving the juicy constitutional and public law cases for other justices. Perhaps Hughes was wary of Stone because he saw him as a rival for the Court's leadership. Stone, after all, had been widely touted as the perfect chief justice after Taft's departure, and many in the American legal community resented Hughes for resigning from the Court in 1916 to seek public office.

During the infamous “Court-packing” controversy of 1937, Stone was active behind the scenes. He told President Franklin Roosevelt privately that the bench needed more justices who shared the philosophy of Holmes, Brandeis, and Cardozo, but who could also express this philosophy cogently and bear their share of the Court's work. Yet he was definitely opposed to changing the size of the Court. Stone fumed when Hughes wrote a letter to Sen. Burton K. Wheeler, D-Mont., explaining that the Court was fully abreast of its business and did not need new blood. Stone objected to the propriety of a Court member, even the chief justice, rendering a public advisory opinion. He also was miffed that so few of the justices were consulted before the release of the letter. Partly as a result of the letter, the Court-packing bill failed. But, as is well known, the president ultimately had his way with the Court because of the defection of Roberts and, to a lesser extent, Hughes himself from the camp of those who feared the exercise of federal government power during the Depression.

One problem that Stone had with the “switch in time that saved nine” was that he was skeptical of the authenticity of Hughes's conversion. Stone believed that the chief justice had used the Court-packing issue to grandstand. He also saw that Hughes frequently assigned an opinion to himself when the Court overruled a pre-1937 decision, such as in West Coast Hotel v. Parrish (1937). This, Stone believed, made Hughes look good to the liberal law school elite. On the other hand, whenever the chief justice took the conservative position, which he did quite regularly, Stone saw that he silently hid behind the opinion of another justice.

For his part, Hughes learned of Stone's disapproval of the Wheeler letter, and he may have even detected Stone's skepticism regarding his change of position. Obviously, there was no love lost between Hughes and Stone. As a result, in the spate of opinions issued in the 1937 term that revivified the New Deal and the “little New Deals” of the states, Stone was assigned to write for the majority in only one case, Carmichael v. Southern Coal & Coke Co. (1937). In upholding the state of Alabama's unemployment compensation law, Stone wrote: “There is no warrant in the Constitution for setting the tax aside because a court thinks that it could have drawn a better statute or could have distributed the burden more wisely. Those are functions reserved for the legislature.”

Between 1937 and 1943 retirements and deaths allowed President Roosevelt to remake the Court almost entirely, and he chose candidates whose New Deal credentials were unassailable. When Hughes retired in 1941, Roosevelt moved Stone to the center seat and selected Attorney General Robert Jackson to fill the vacancy created by Stone's elevation to chief justice. By the time of his death in April 1945, Roosevelt had filled every seat on the Court except the one occupied by Owen Roberts. The nation's highest court was now quite properly known as the “Roosevelt Court.”

The ironies that would soon confront Stone and the Roosevelt Court were striking. The judicial self-restraint in the face of economic issues that Holmes, Brandeis, and Stone had argued for with varying degrees of passion and logic was now a reality. After 1937 the Court essentially accepted legislative economic regulation through state and federal statutes with only the most perfunctory degree of judicial review. But unanimity on economic regulation did not mean a successful “massing of the Court” on all issues. Civil liberties questions were arising as the Depression merged into another world war, and, if anything, they would prove to be even more divisive than economic questions. Issues such as freedom of expression, separation of church and state, and racial justice befuddled and divided the Roosevelt Court just as they continue to challenge the Supreme Court today.

Moreover, the staunch New Dealers appointed to the Court were bright, accomplished, opinionated, and far from timid. Stone referred to Hugo Black, William O. Douglas, and Felix Frankfurter as “wild horses.” Stone's relations with the new justices, both before and after he became their chief, could only be described as strained. For example, he and Black got off on the wrong foot. In his first term, Black dissented far too much for Stone's taste. In addition, Black was openly political and confrontational in his opinions. Stone did not keep his feelings about Black's lack of proper judicial decorum to himself. Stone liked to talk to reporter friends, and he carried on a voluminous correspondence with members of the legal community. Apparently, Black learned of Stone's privately expressed dissatisfaction with his performance as a judicial rookie. Stone did not have the personal skills to smooth over the friction, and Black never forgot what he perceived to have been a personal slight. Sadly, the relationship of two great jurists, who shared so much in terms of philosophy, never recovered from a bad start.

One of Stone's greatest contributions to the Roosevelt Court and to American law generally came in what appeared, at first reading, to be an unimportant case, United States v. Carolene Products Co. (1938). The case involved a challenge to a federal law prohibiting the interstate transportation of “filled milk,” which was skimmed milk mixed with animal fats. As might be expected, given that the case came to the Court after the judicial revolution of 1937 had severely undercut the economic judicial fiat, the Court found the statute constitutionally acceptable.

What made this decision memorable was its fourth footnote, perhaps the most famous footnote in all of Supreme Court history. In it Stone enunciated what many Court watchers believed had been true since 1937, that the Supreme Court would henceforth subject statutes dealing with civil liberties and racial issues to a much more searching examination than laws pertaining to economic matters. The footnote stated a clear double standard, but the Court in 1938 appeared to be able to live with it.

Because of its importance, the Carolene Products footnote deserves quoting at length:

It is unnecessary to consider now whether legislation which restricts …. political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendment than are most other types of legislation.… Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious …. or national …. or racial minorities;… whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

In simple terms, this footnote ratified the economic self-restraint so identified with Holmes and Brandeis, while at the same time suggesting that statutes that on their face restricted civil liberties or the rights of racial minorities would be subjected to a standard of review more probing than that accorded to economic regulations. This footnote, while technically not part of the holding in Carolene Products, has been cited favorably by federal courts hundreds of times ever since, specifically in cases involving “suspect classifications” such as race, alienage, and gender.

Most legal historians have identified Hughes's opinion in West Coast Hotel v. Parrish as a watershed in American constitutional law. It was this opinion that announced the new orientation of Roberts and Hughes, which meant that the Court would no longer attempt to act as a superlegislature to review economic regulatory statutes. The West Coast Hotel decision, however, did not hint at the new judicial activism that would soon infuse the Court on civil rights and civil liberties questions. Stone's Carolene Products footnote, by contrast, looked both backward and forward. It also made clear that different standards of constitutional review would henceforth be exercised in economic regulation and personal rights cases. An argument can be made that Stone's Carolene Products footnote provides a better point of demarcation than West Coast Hotel for the shift to modern constitutional jurisprudence. Two Stone opinions, a dissent in 1940 and a majority opinion in 1941, while Hughes was still chief justice, offer apt illustrations of this new jurisprudence.

Stone's majority opinion in United States v Darby Lumber Co. (1941) warrants discussion first. Stone provided a brilliant and eagerly awaited legal construction of the 1938 Fair Labor Standards Act, arguably the last major piece of New Deal legislation. It is uncertain why Hughes, who generally preferred to keep for himself majority opinions reversing previous laissez-faire decisions, assigned the Darby opinion to Stone. In any case, Stone made the most of the opportunity.

Among other things, the Fair Labor Standards Act banned the interstate transportation of merchandise produced by companies that violated federal minimum wage, maximum hours, or child labor precepts. The statute was challenged in federal district court by a Georgia lumber manufacturer who maintained that the law impermissibly intruded into local (intrastate) manufacturing, something he felt was beyond the sweep of federal regulation. The lower court agreed with Darby Lumber, relying on the 1918 opinion in Hammer v. Dagenhart, in which the Court had been unwilling to construe the commerce clause of Article I to permit the regulation of manufacturing and held unconstitutional the Child Labor Act of 1916.

Reversing the lower court and overruling Hammer v. Dagenhart, Stone's majority opinion in Darby continued to obliterate the specious distinction between manufacturing and commerce that the Court had set its guns against in National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937). The goods produced and marketed by the lumber company, Stone concluded, were part of the stream of commerce and, therefore, could be banned under the commerce clause.

Stone's opinion also helped expunge from constitutional jurisprudence the doctrine of “dual federalism,” a nineteenth-century conservative dogma that held that the Tenth Amendment sets an explicit limitation on the powers of Congress. In burying dual federalism, Stone insisted that the Tenth Amendment

states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted.

Stone's leading biographer, Alpheus T. Mason, declared that with the 1941 Darby opinion, Stone was “now recognized as the intellectual leader of the Court's center.”

In the year before the Darby opinion, Stone had hardly seemed at the intellectual center of the Court. With his lone dissent in Minersville School District v. Gobitis (1940), he appeared to some Court watchers as if he had wandered off the left edge of the political spectrum. In retrospect, his dissent in Gobitis is now seen as one of his finest hours. The case arose when a group of Jehovah's Witnesses children balked at saluting the American flag in their Pennsylvania elementary school. The Witnesses were not anti-American, but their literal reading of the Old Testament compelled them to refuse to pay homage to a “graven image.” They considered then and still do consider the flag to be such an image.

The Witnesses' principled stand in the late 1930s violated a compulsory Pennsylvania flag salute statute. Lillian and William Gobitas (the name was misspelled in Court records) were summarily expelled from school for refusing to salute the flag. The Witnesses' attorneys argued that the statute—a law passed in the midst of patriotic fervor as America prepared for war—was an unconstitutional infringement on the Witnesses' freedom of expression and, therefore, should be struck down as a violation of the First Amendment as held applicable to the states by the due process clause of the Fourteenth Amendment.

Frankfurter wrote the opinion for the 8–1 majority, which upheld the Pennsylvania law. As the Court's only Jewish member in 1940, Frankfurter was particularly sensitive to the rights of religious minorities. But he felt strongly that the country could legitimately ask it citizens for some minimal patriotic expression, such as the salute of the American flag. Frankfurter, a consistent judicial self-restrainer in civil liberties as well as economic regulation cases, provided a brilliant discourse on the power of a symbol such as the American flag. He argued, however, that while he might not favor flag salute legislation personally, he would not wish to inject his views between the people of a state and their elected representatives.

Frankfurter had tried mightily to secure Stone's vote for the majority in Gobitis, writing him a five-page letter that even used some of Stone's own language in the Carolene Products footnote against his position. Stone would not budge. Shortly before the opinion in Gobitis was to be announced in open court, Stone learned that Frankfurter planned to read from the bench his entire lengthy majority opinion. Stone debated whether he should simply announce that he dissented, as was the custom, or whether he should attempt to match Frankfurter's rhetoric by reading his opinion as well. Ironically, Frankfurter elected at the last minute not to read his opinion, merely announcing the result in the case. But Stone was so agitated that he decided to plunge ahead and read his dissent, doing so with a level of emotion rare for him.

In asserting that the Gobitas children were denied their freedom of speech and religion by the Pennsylvania law, Stone declared:

The guaranties of civil liberty are but guaranties of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them.… If these guaranties are to have any meaning they must, I think, be deemed to withhold from the state any authority to compel belief or the expression of it where that expression violates religious convictions, whatever may be the legislative view of the desirability of such compulsion.

Stone later expressed chagrin that he was so carried away by emotion that he had read his entire dissent. But he was buoyed by praise from many quarters for expressing such a courageous opinion in the face of the uncritical patriotism of the country in 1940. The chairman of the American Civil Liberties Union, John Haynes Holmes, ventured that Stone's Gobitis opinion would “rank as one of the great dissenting opinions in American history.” Editorials in 171 U.S. newspapers supported Stone's dissent; only a few joined company with Frankfurter.

Stone's apprehension about the lack of tolerance for religious differences was confirmed by the persecution of Jehovah's Witnesses in the immediate aftermath of the Gobitis decision. In the week of June 12–20, 1940, alone, the Justice Department received reports of “hundreds of attacks on the Witnesses.” Among the many incident reports were the following: a Witnesses' Kingdom Hall in Maine was burned; a mob attacked a Witnesses' Bible meeting within a few miles of the nation's capital; and in Connersville, Indiana, a Witnesses' attorney was beaten and driven from town. The Justice Department attributed this wave of violence directly to the Gobitis decision.

The physical attacks eventually tapered off, but the Witnesses would continue to find their way to the Supreme Court to contest a variety of issues. In Jones v. City of Opelika (1942), the case involved the constitutionality of municipal ordinances levying a license tax on groups selling books and pamphlets door-to-door. The Witnesses took the position that such laws violated their First Amendment rights of freedom of expression and the free exercise of religion. The Witnesses lost the case by a 5–4 vote. As expected, Stone dissented. But, in another dissent filed by Black, Douglas, and Murphy, something unheard of in Supreme Court history took place. These three justices, all of whom had voted with the majority in Gobitis, confessed that they had changed their minds about the constitutionality of flag salute statutes and now agreed with Stone on this issue.

The about-face of the three liberal justices in Jones v. Opelika persuaded the Witnesses to bring another case to federal court on the constitutionality of compulsory flag salute laws. This time the case came from West Virginia. In 1943, along with several other cases involving the Witnesses, the Court handed down the ruling in West Virginia Board of Education v. Barnette, which explicitly overruled Gobitis. The vote was 6–3, with Stone, the three recanting justices, and the recently appointed Wiley Rutledge and Robert Jackson in the majority. Stone graciously allowed Jackson to write the majority opinion. Frankfurter issued an impassioned dissent. The majority opinion, one of Jackson's best, echoed many of the arguments and even some of the phraseology in Stone's Gobitis dissent. In three short years, Stone as a lone dissenter had turned the Court around on a major civil liberties issue.

When Roosevelt named Stone chief justice, poet and essayist Archibald MacLeish wrote that the nomination was “so clearly and certainly and surely right it resounded in the world like the perfect word spoken at the perfect moment.” And when the nomination came up for discussion in the Senate on June 27, 1941, Sen. George Norris, R-Neb., the last of the Progressives who had fought Stone's earlier appointment as an associate justice, delivered the only speech. He confessed his error in opposing Stone in 1925 and now strongly endorsed his elevation to the chief justiceship. A few moments later, Stone was confirmed unanimously by a voice vote of the Senate.

In the newly confirmed chief justice's obligatory letter thanking the president, Stone referred to himself as now having to shoulder “some burdens which John Marshall did not know.” He could not have been more prophetic. Marshall, for example, did not even see a single dissent to any opinions of the Court (most of which he wrote himself) in his first three terms as chief justice. By contrast, the pace of dissent on the Stone Court was higher than at any previous time in American history.

The “wild horses”—Black, Douglas, and Frankfurter—now had a similarly rambunctious stablemate in Jackson. Stone basically tried to stay out of the way. Never one to hog the glory, he took pains to assign important majority opinions to each of his brethren. As a result, Stone did not issue any majority opinions during his tenure as chief justice to match the significance, for example, of his 1941 opinion in Darby.

In many ways, the chief justiceship was an unhappy denouement to an otherwise illustrious public life. Part of Stone's difficulty as chief justice was his tolerance for disagreement. In the minds of some Court colleagues, he let conferences over pending cases and petitions of certiorari continue far too long. The Stone Court did not generally observe the normal Court protocol of allowing the justices to speak in turn in ascending levels of seniority. As a result, the discussions went in many different directions. Frankfurter, the professor, may have enjoyed the lively exchanges, but more efficiency-minded justices chafed at the time seemingly wasted in conferences.

Another problem was that Stone did not have the ability or perhaps the inclination to massage the massive egos of some of his colleagues. As an associate justice, Stone kept to a strict schedule and dispatched routine work with amazing speed. He was troubled that others could not do the same, but he did not have the patience or tact to cajole them into more rapid activity. Jackson believed that Stone's problem was that he dreaded conflict. But because Stone was willing to permit dissension to continue and fester, he unintentionally abetted the already high degree of conflict that was inevitable given the positions and personalities of the “wild horses.”

One example of the difficulty Stone had in uniting his Court can be seen in the deceptively simple matter of composing a farewell letter to Owen Roberts when he retired in 1945. Roberts was the only member of the Court in 1945 who had not been nominated by Roosevelt. At the end of the 1944–1945 term Roberts was not a happy justice. He had dissented fifty-three times that year, frequently with bitter and intemperate language. After he announced his plans to retire, Stone drafted a farewell letter couched in cautious, hardly generous language. Some justices signed it, some refused. Black drafted a second letter that was even less flattering to Roberts, and it too made the round of the justices. The negotiations over language continued for weeks. The Black draft eventually received six “votes.” Although not satisfied with Black's draft, Stone used it substantially as the basis for his comments about Roberts at the Court's opening session in October 1945. This was a sorry episode that did no credit to the Stone Court.

Assessing the qualities and accomplishments of Harlan Fiske Stone is no easy matter. Published studies of judicial greatness have usually placed Stone in the “great” or “near great” category. Judged against the justices with whom he served, Stone should receive high but not top marks in most categories. For example, although he did not shine as brightly as his compatriots in judicial restraint, Holmes and Brandeis, his was a consistent and solid voice for respect of the legislative prerogative. He did not have the crusading zeal of Brandeis, Black, or Douglas, but he held strong principles and expressed them cogently at appropriate times: unlike the legal crusaders, he had an impeccable sense of judicial decorum. Judged against other academic lawyers who found their way to the Court, his scholarship was well above average but not of Frankfurter's caliber. As a legal writer he rose to brilliance on occasion, as in his Darby majority opinion or his Gobitis dissent, but his prose did not consistently sparkle as did that of Holmes and Cardozo. And as sensitive as Stone was to civil liberties, he failed to weigh in against the egregious treatment of Japanese Americans during World War II. Finally, as a chief justice, Stone was honest and solid but not as effective a consensus-builder as Taft or even Hughes.

The end of Stone's long public life came suddenly and with a measure of incongruity. On Easter Monday 1946 Stone was presiding over an opinion day session of the Court. He read a dissent in Girouard v. United States, a case addressing the question of whether a conscientious objector was entitled to citizenship. Ironically, Stone was dissenting to a majority view that wrote into law a position he had himself expressed in a previous dissent. Thus this eloquent practitioner of self-restraint and advocate of judicial consensus was in the anomalous position of dissenting from one of his own dissents. Stone's reasoning was complicated, but essentially he believed that Congress had acted to interpret the statute at issue, the Naturalization Act of 1940, in a way contrary to his earlier dissent. Ever sensitive to legislative prerogative, he felt bound to express his support for the wishes of elected representatives, even if that meant dissenting and going against a position he had advocated just a few years earlier.

At the end of his opinion in Girouard, as almost a fitting epitaph, he stated: “It is not the function of this Court to disregard the will of Congress in the exercise of its constitutional power.” Following the disposition of this case, Black announced several opinions. Then Stone was scheduled to deliver three decisions. He paused for a long moment, then mumbled incoherently. Black, the senior associate justice, sensing that something was wrong, banged the gavel and ended the session. Stone was helped out of the chamber. He then collapsed in a Court washroom and was later taken home by ambulance.

Stone never regained consciousness. He died of a massive cerebral hemorrhage that evening, April 22, 1946. Three days later more than 2,500 people attended his funeral. Of the many stirring eulogies, perhaps that delivered by Sen. Alben Barkley, D-Ky., struck the most apt chord: “No Associate Justice or Chief Justice …. held a more abiding place in the affections of the American people and in the affections of all who knew him intimately and personally.”


The Stone papers are in the Library of Congress. Stone's own writings include: Law and Its Administration (1915); “The Common Law in the United States,” Harvard Law Review 50 (1936): 4; “Fifty Years Work of the Supreme Court,” American Bar Association Journal 14 (1928): 428; and “The Public Influence of the Bar,” Harvard Law Review 48 (1934): 1. Stone's career has benefited from a masterful biography: Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (1956), which makes extensive use of Stone's correspondence and other private papers. An affectionate portrait is Milton C. Handler, “Clerking for Justice Harlan Fiske Stone,” Journal of Supreme Court History (1995): 113.

Useful on Stone's legal thought are Samuel J. Konefsky, Chief Justice Stone and the Supreme Court (1946); G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges (1976), 215–229; Allison Dunham, “Mr. Chief Justice Stone,” in Allison Dunham and Philip B. Kurland, eds., Mr. Justice (1964), 229–249; John P. Frank, “Harlan Fiske Stone: An Estimate,” Stanford Law Review 9 (1957): 621; Noel T. Dowling, “Mr. Justice Stone and the Constitution,” Columbia Law Review 36 (1936): 351; Learned Hand, “Chief Justice Stone's Conception of the Judicial Function,” Columbia Law Review 46 (1946): 696; Herbert Wechsler, “Stone and the Constitution,” Columbia Law Review 46 (1946): 793; Noel T. Dowling, “The Methods of Mr. Justice Stone in Constitutional Cases,” Columbia Law Review 41 (1941): 1160; and M. Galston, “Activism and Restraint: The Evolution of Harlan Fiske Stone's Judicial Philosophy,” Tulane Law Review 70 (1995): 137.

Footnote Four has generated a literature of its own. See, for example, P. Linzer, “The Carolene Products Footnote and the Preferred Position of Individual Rights: Louis Lusky and John Hart Ely vs. Harlan Fiske Stone,” Constitutional Commentary 12 (1995): 277; and M. Perry, “Justice Stone and Footnote Four,” George Mason University Civil Rights Law Journal 6 (1996): 35.

Noteworthy Opinions

United States v. Butler, 297 U.S. 1 (1936) (Dissent)

United States v. Carolene Products Co., 304 U.S. 144 (1938)

Minersville School District v. Gobitis, 310 U.S. 586 (1940) (Dissent)

United States v. Darby Lumber Co., 312 U.S. 100 (1941)

Jones v. Opelika, 316 U.S. 584 (1942) (Dissent)

Girouard v. United States, 328 U.S. 61 (1946) (Dissent)


Document Citation
Stone, Harlan Fiske, in Biographical Encyclopedia of the Supreme Court 493 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18169-979543
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