Stone, Harlan F. (1872–1946)

Author:Alpheus Thomas Mason

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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

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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...

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