Stone Court (1941–1946)

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STONE COURT (1941–1946)

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 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 was couched in terms sufficiently ambiguous to permit limitation. Decisions putting marginal limits upon the coverage of the federal wage and hour law are the best examples. Only a bare majority of four of the seven Justices participating could be mustered in united states v. southeastern underwriters association (1944) for holding the insurance industry subject to the sherman antitrust act. In paul v. virginia (1879) the Court had first ruled that writing an insurance policy on property in another state was not interstate commerce. Later decisions and an elaborate structure of regulation in every state were built upon that precedent. Congress had essayed no regulation of insurance. The executive branch had not previously sought to apply the Sherman Act. Justices Black, Douglas, Murphy, and Rutledge seemed not to hesitate in sustaining the Department of Justice's novel assertion of federal power, a position supportable by the literal words of the statute and the logic of the expansive view of the commerce power. Respect for precedent and a strong sense of the importance of institutional continuity led the Chief Justice and Justices Frankfurter and Jackson to protest so sharp a departure from the status quo in the absence of a specific congressional directive: "it is the part of wisdom and self-restraint and good government to leave the initiative to Congress.… To force the hand of Congress is no more the proper function of the judiciary than to tie the hands of Congress." Congress responded to the majority by limiting the application of the Sherman Act to the insurance business, and by confirming the states' powers of regulation and taxation.

New constitutional issues that would lead to the next major phase in the history of constitutional adjudication began to emerge as wartime restrictions and the multiplication of government activities stirred fears for personal liberties. The war against Nazi Germany reinvigorated ideals of human dignity, equality, and democracy. As more civil liberties and civil rights litigation came upon the docket, a number of Justices began to have second thoughts about the philosophy of judicial deference to legislative determinations. That philosophy had well fitted the prevailing desire for progressive social and economic reform so long as the states and the executive and legislative branches of the federal government were engaged in the redistribution of power and the protection of the disadvantaged and distressed. The recollection of past judicial mistakes and the need for consistency of institutional theory cautioned against activist judicial ventures even in so deserving an area as civil liberty. On the other hand, continued self-restraint would leave much civil liberty at the mercy of executive or legislative oppression. The libertarian judicial activist could achieve a measure of logical consistency by elevating civil liberties to a preferred position justifying stricter standards of judicial review than those used in judging economic measures. The older dissenting opinions by Justices oliver wendell holmes and louis d. brandeis pleading for greater constitutional protection for freedom of speech pointed the way even though they had failed to rationalize a double standard.

Stone himself, as an Associate Justice, had suggested one rationale in a now famous footnote in united states v. carolene products co. (1938). Holding that the Court should indulge a strong presumption of constitutionality whenever the political processes of representative government were open, he nonetheless suggested that stricter judicial review might be appropriate when the challenge was to a statute that interfered with the political process—for example, a law restricting freedom of speech—or that was a result of prejudice against a discrete and insular minority—for example, a law discriminating against black people.

The issue was first drawn sharply under the first and fourteenth amendments in the flag salute cases (1940, 1943). The substantive question was whether the constitutional guarantees of the freedom of speech and free exercise of religion permitted a state to expel from school and treat as truants the children of Jehovah's Witnesses, who refused to salute the United States flag. In the first case, the expulsions were sustained. Speaking for the Court, Justice Frankfurter invoked the then conventional rationale of judicial self-restraint. National unity and respect for national tradition, he reasoned, were permissible legislative goals. The compulsory flag salute could not be said to be an irrational means of seeking to secure those goals, even though the Court might be convinced that deeper patriotism would be engendered by refraining from coercing a symbolic gesture. To reject the legislative conclusion "would amount to no less than the pronouncement of pedagogical and psychological dogma in a field where courts possess no marked and certainly no controlling competence." The lone dissent came from Stone, who was still an Associate Justice.

Three years later the Court reversed itself. Justice Jackson, for the Court, summarized the core philosophy of the First Amendment: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." First Amendment freedoms, the Court reasoned, rejecting Justice Frankfurter's plea for consistent application of the principle of judicial self-restraint, might not be curtailed for "such slender reasons" as would constitutionally justify restrictions upon economic liberty. Freedom of speech, of assembly, and of religion were susceptible of restriction "only to prevent grave and immediate danger to interests that the State may lawfully protect. We cannot because of modest estimates of our competence in such specialities as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed."

Even in the 1980s, the deep and pervasive cleavage between the advocates of judicial self-restraint and the proponents of active judicial review in some categories of cases still divides both the Justices and constitutional scholars. It is now pretty clear, however, that judicial review will be stricter and there will be little deference to legislative judgments when restrictions upon freedom of expression, religion, or political association are at stake. (See judicial activism and restraint.)

In later years the Court would come also to scrutinize strictly, without deference to the political process, not only some laws challenged as denials of the equal protection of the laws guaranteed by the Fourteenth Amendment but even statutes claimed to infringe fundamental rights in violation of the due process clauses of the Fifth and Fourteenth Amendments. The Stone Court broke the ground for strict scrutiny of statutory classifications prejudicing an "insular minority" in a opinion in one of the japanese american cases declaring that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect … the courts must subject them to the most rigid scrutiny." In later years the constitutional standard thus declared became the basis for many decisions invalidating hostile racial discrimination at the hands of government, segregation laws, and other "invidious" statutory classifications.

Earlier the Stone Court opened the door to strict review in a second and still highly controversial class of cases under the equal protection clause. An Oklahoma statute mandated the sterilization of persons thrice convicted of specified crimes, including grand larceny, but not of persons convicted of other crimes of much the same order and magnitude, such as embezzlement. The somewhat obscure opinion by Justice Douglas in skinner v. oklahoma (1942), holding the differential treatment to violate the equal protection clause, emphasized the need for "strict scrutiny" of classifications made in a sterilization law, and referred to procreation as "a basic liberty." Later reforms by constitutional adjudication in the area of voting rights and legislative representation would be based upon the proposition that a legislative classification is subject to strict scrutiny not only when it is invidious but also when it differentiates among individuals in their access to a basic liberty. The precedent would also be invoked to support still later controversial decisions upholding claims of individual liberty in matters of sexual activity, childbirth, and abortion.

The Stone Court also sharpened the weapons for challenging crucial discrimination in the processes of representative government. In most of the states of the Old South, nomination as the candidate of the Democratic party still assured election to office. A political party was regarded as a private organization not subject to the equal protection clause of the Fourteenth Amendment or to the fifteenth amendment's prohibition against denial or abridgment of voting rights by reason of race or color. Even after primary elections regulated by state law became the standard method for nominating party candidates, "white primaries" remained an accepted method of excluding black citizens from participation in self government.

The first step in upsetting this neat device was taken in an opinion by Justice Stone just before he became Chief Justice. Interference with the right to cast an effective ballot in a primary held to nominate a party's candidate for election as senator or representative was held in united states v. classic (1938) to interfere with the election itself and thus to be punishable under legislation enacted by Congress pursuant to its power to regulate the time, place, and manner of holding elections under Article I, section 4. Next, in smith v. allwright (1944) the Stone Court ruled that if black citizens are excluded because of race or color from a party primary prescribed and extensively regulated by state law, their "right … to vote" has been denied or abridged by the state in violation of the Fifteenth Amendment. Opening the polls to effective participation by racial minorities throughout the South, in accordance with the promise of the Fifteenth Amendment, would have to await the civil rights revolution and the enactment of the voting rights act of 1965, but these decisions eliminating "white primaries" were the first major steps in that direction.

While marking its contributions to the mainstream of constitutional history, one should not forget that the Stone Court was a wartime court subject to wartime pressures as it faced dramatic cases posing the underlying and unanswerable question, "How much liberty and judicial protection for liberty may be sacrificed to ensure survival of the Nation?" Economic measures were uniformly upheld, even a scheme for concentrating the review of the legality of administrative price regulations in a special emergency court of appeals, thus denying a defendant charged in an ordinary court with a criminal violation the right to assert the illegality of the regulation as a defense. Extraordinary deference to military commanders under wartime pressures alone can account for the Court's shameful decision sustaining the constitutionality of a military order excluding every person of Japanese descent, even American-born United States citizens, from most of the area along the Pacific Coast.

More often, the majority resisted the pressures when individual liberty was at stake. In duncan v. kahanamoku (1946), an opinion with constitutional overtones, the substitution of military tribunals for civilian courts in Hawaii was held beyond the statutory authority of Army commanders. Prosecution of a naturalized citizen of German descent who had befriended a German saboteur landed by German submarine and who took his funds for safekeeping was held in cramer v. united states (1945) not to satisfy the constitutional definition of treason because the only overt acts proved by the testimony of two witnesses—meetings with the enemy saboteur in public places—were not shown to give aid and comfort to the enemy. In Schneiderman v. United States (1943) the Court held that proof that a naturalized citizen was an avowed Marxist and long-time active member, organizer, and officer of the Communist Party of the United States, both before and after his naturalization, was insufficient to warrant stripping him of citizenship on the ground that, when naturalized, he had not been "attached to the principles of the Constitution … and well disposed to the good order and happiness of the United States."

The delicate balance that the Stone Court maintained between the effective prosecution of the war and the constitutional safeguards of liberty is perhaps best illustrated by the dramatic proceedings in ex parte quirin (1942). In June 1942 eight trained Nazi saboteurs were put ashore in the United States by submarine, four on Long Island and four in Florida. They were quickly apprehended. President Roosevelt immediately appointed a military commission to try the saboteurs. The President was determined upon swift military justice. The proclamation declared the courts of the United States closed to subjects of any nation at war with the United States who might enter the United States and be charged with sabotage or attempt to commit sabotage. The trial was prosecuted with extraordinary speed and secrecy. Before the trial was complete, counsel for the saboteurs sought relief by petition for habeas corpus. By extraordinary procedure the case was rushed before the Supreme Court. The Justices broke their summer recess to hear oral argument. An order was promptly entered denying the petitions and promising a subsequent opinion. Within a few days the military tribunal passed sentence and six of the saboteurs were executed.

In the post-execution opinion the Court explained that the offense was triable by military commission; that the military commission was lawfully constituted; and that the proceedings were conducted without violation of any applicable provision of the Articles of War. The Justices were greatly troubled upon the last question. Some realized that in truth the swift and secret procedure ordained by the President left them with little ability to give meaningful protection to the saboteurs' legal rights in the military proceedings. Yet, even while recognizing that wartime pressures bent traditional legal safeguards in this as in other instances before the Stone Court, one should not conclude "inter arma silent leges." The hard core of the Court's decision was that judicial review of the saboteurs' constitutional contentions could not be barred even by the President as commander-in-chief. One may therefore hope that, if similar circumstances again arise, the Stone Court's basic defense of constitutionalism in time of war will prove more significant than its occasional yielding to the pressures of emergency.

Archibald Cox


Mason, Alpheus 1956 Harlan Fiske Stone, Pillar of the Laws. Chaps. 34–42. New York: Viking Press.

Rostow, Eugene 1945 The Japanese American Cases: A Disaster. Yale Law Journal 54:489–533.

Swindler, William F. 1970 Court and Constitution in the Twentieth Century, Vol. 2, chaps. 6–10. Indianapolis: Bobbs-Merrill.

Woodward, J. 1968 Mr. Justice Murphy. Chaps. 11–13. Princeton, N.J.: Princeton University Press.