Harlan Fiske Stone

One person who probably deserves a new biography is Chief Justice Harlan Fiske Stone. I just finished reading Alpheus Mason’s book on the Justice, which was written in 1956.  It’s a thorough and engaging account, but there are a couple of problems with the book.  First, it is a rather fawning account–the subtitle might as well have been “He Was Fabulous.” Second, the story is quite dated, as you might expect from a book written sixty years ago. Race is largely absent from the narrative, as is as any discussion of Stone’s decision to join Holmes’ opinion in Buck v. Bell. Stone also made the unfortunate decision (when he was Attorney General) to name J. Edgar Hoover as the FBI Director, which the book talks about relatively briefly.

Stone is a near-great Justice.  He isn’t in the first rank because his opinions aren’t that quotable. But his contributions after the “switch-in-time,” especially Carolone Products and Darby, remain vital texts for understanding judicial review.  Someone should tell his story again.

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9 Responses

  1. Joe says:

    How bad was appointing Hoover at that point in time? Bigger problem was to let the guy stick around so long.

  2. NotASton3r says:


    Harlan Stone’s concurrence in Hague v. CIO


    As to the American Civil Liberties Union, which is a corporation, it cannot be said to be deprived of the civil rights of freedom of speech and of assembly, for the liberty guaranteed by the due process clause is the liberty of natural, not artificial, persons. Northwestern Life Ins. Co. v. Riggs, 203 U. S. 243, 203 U. S. 255; Western Turf Assn. v. Greenberg, 204 U. S. 359, 204 U. S. 363.

  3. Joe says:

    The corporation thing is standard though the ACLU as a non-profit advocacy corporation is regulated differently than for profit business corporations. Anyway, the dissent in Citizens United did not deny corporations have free speech rights. The real question there is the ability to regulate them somewhat differently.

  4. John Dereszewski says:

    If Stone is not one of the greats – and he was listed as such, with no noted dissents, in the 1969 ranking – then who is? ; are we down to just about 5 or six Justices?

    Stone played a great role as one of the key opponents against the four horsemen during the 1930’s; his dissents in the Butler and Tipaldo cases are excellent – even though they may have lacked the Holmes and Brandeis level of polish. And certainly the Carolene Products footnote was – whether you agree with it or not – one of the most significant contributions to the development of constitutional law. Finally, Stone’s dissent is the first flag salute case remains a classic statement that continues to inspire.

    Stone’s difficult performance as CJ will always be held against him – though I doubt if anyone could have contained those “wild horses” during the 1940’s. (I always suspected that Hughes retired in 1941 not only because of health concerns but also because he knew that he could no longer exert effective control over this court.) Even during that time, however, Stone was able to pen his terrific commerce clause opinion in the Southern Pacific case.

    I read Mason’s biography many years ago and have always admired it; if nothing else, it was one of the first works to really explore the inner workings of the court. While I agree that a new examination is advisable – to look at not only the Buck case but Stone’s highly questionable performance in the WW II cases – the Mason work really must receive the credit that it clearly merits. (By the way, when it comes to the Buck case, the justice’s performance that really needs to be closely examined is Brandeis.)

    Mason’s final evaluation of Stone was that he did, on several occasions – as noted above – rise above his near-great status to “touch the hem of judicial greatness”. I think the evaluation is justified – and that, all other things being equal, pushes him over the top.

  5. Gerard Magliocca says:


    I agree with most of what you say. It’s just that nobody today starts a sentence with “As Justice Stone said . . .” in the way that they do for Holmes, Brandeis, Cardozo, Learned Hand, etc.

    • TheWordTruismInventedByStone says:

      As Justice Stone said in Darby:

      “The 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, and that the states might not be able to exercise fully their reserved powers.”

      This has been quoted more times than any other line in any supreme court decision to uphold every act of congress.

  6. Joe says:

    I see that author wrote various books including one entitled “The Supreme Court from Taft to Warren.” (1968)

    Perhaps, the decade affected his analysis a tad.