Stone Court (1941–1946)

AuthorArchibald Cox
Pages2548-2551

Page 2548

When Associate Justice HARLAN FISKE STONE moved over to the central seat of the Chief Justice in October 1941, he presided over a bench seven of whose nine members had been appointed to the Court by President FRANKLIN D. ROOSEVELT. All seven, who were sympathetic to the mass of new regulatory laws and welfare measures sponsored by the President, could be expected to develop approvingly the constitutional revolution of 1937. Surely they would sustain vast congressional expansion of federal power under the COMMERCE CLAUSE and drastically curtail the scope of JUDICIAL REVIEW. Stone himself had been appointed Associate Justice by President CALVIN COOLIDGE, but he had long advocated newly dominant constitutional principles in dissenting opinions. OWEN J. ROBERTS, now the senior Associate Justice, was a Republican appointed by President HERBERT C. HOOVER, but it was the shift of his vote, along with Chief Justice CHARLES EVANS HUGHES 's, that had tipped the scales for change. Outside observers expected "a new unity in Supreme Court DOCTRINE, based upon a clearer philosophy of government than has yet been expressed in the swift succession of decisions rendered by a Court standing in the shadow of political changes."

But there was no unity. The new Chief Justice soon came to view his brethren as "a team of wild horses." DISSENTING OPINIONS and CONCURRING OPINIONS proliferated in numbers previously inconceivable. The controversies ranged from major jurisprudential differences to unworthy personal squabbles over such matters as the phrasing of the Court's letter to Justice Roberts upon his retirement.

The sources of disunity were both philosophical and temperamental. All but one or two of the Justices were highly individualistic, each was accustomed to speak his mind. All, with the possible exception of Justice Roberts, accepted the new regulatory and welfare state; but there were sharp differences over the proper pace and extent of change. The Chief Justice and Justices Roberts, STANLEY F. REED, JAMES F. BYRNES, and to a lesser degree Justices FELIX FRANKFURTER and ROBERT H. JACKSON, were more conservative in disposition than Justices HUGO L. BLACK, WILLIAM O. DOUGLAS, FRANK MURPHY, and Justice Byrnes's successor, WILEY B. RUTLEDGE. The temperamental differences were sometimes matched by differences in legal philosophy. The Chief Justice, Justice Frankfurter, and to a lesser degree Justice Jackson, were craftsmen of the law deeply influenced by a strong sense of the importance of the judge's loyalty to a growing, changing, but still coherent set of legal principles. For them, such institutional concerns were often more important than immediate, practical consequences. Justices Black, Douglas, and Murphy gave far more emphasis to the redistribution of social and economic power and to progressive reform. In conflicts between the individual and his government outside the economic area, the conservatives' instinct for order would often clash with the progressive liberals' enthusiasm for CIVIL LIBERTIES and CIVIL RIGHTS. The marked dissension indicates the difficulty any President of the United States faces in stamping one pattern upon the work of the Court.

Viewed in the sweep of constitutional history, the Stone years, 1941?1946, were the first part of a period of transition also encompassing the VINSON COURT, 1946?1953. By 1940 the main lines of CONSTITUTIONAL INTERPRETATION under the commerce clause and GENERAL WELFARE CLAUSE had been adapted to centralized ECONOMIC REGULATION

Page 2549

and the welfare state. After 1953, when EARL WARREN became Chief Justice of the United States, the driving force would be a new spirit of libertarianism, egalitarianism, and emancipation. It remained for the Stone Court to complete the reinterpretation of the commerce clause and to pursue the philosophy of judicial deference to legislative determinations, whether state or federal. But harbingers of the new age of reform by constitutional adjudication also began to appear. The first explicit challenges to an across-the-board philosophy of judicial self-restraint were raised in the Stone Court. From the seeds thus scattered would grow the doctrinal principles supporting the subsequent vast expansion of constitutionally protected civil liberties and civil rights.

In interpreting the commerce clause, the Stone Court, whenever faced with a clear assertion of congressional intent to exercise such wide authority, did not shrink from pressing to its logical extreme the doctrine that Congress may regulate any local activities that in fact affect INTERSTATE COMMERCE. For example, in WICKARD V. FILBURN (1942) the Court sustained the imposition of a federal penalty upon the owner of a small family farm for sowing 11.9 acres of wheat in excess of his 11.1 acre federal allotment, upon the ground that Congress could rationally conclude that small individual additions to the total supply, even for home consumption, would cumulatively affect the price of wheat in interstate markets. The reluctance of the more conservative Justices to sanction unlimited expansion of federal regulation into once local affairs took hold when federal legislation...

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