October 11, 1872 – Birth of Harlan F. Stone, 12th Chief Justice of the Supreme Court

Harlan Fiske Stone, born on this day in Chesterfield, New Hampshire, graduated from Columbia Law School in 1898. From 1899 to 1902 he taught law at Columbia Law School, becoming a professor in 1902 and the dean in 1910, a position he held until 1923. Columbia reports that as a teacher and as dean, Stone was known for taking a great interest in his students, who called themselves “Stone-Agers” in his honor. In 1946, the year of Stone’s death, the Columbia Law School faculty established the Harlan Fiske Stone Scholars. These scholarships are awarded each year in recognition of academic achievement by students in each of the three J.D. classes and in the LL.M. Program. That same year, the Harlan Fiske Stone professorship in constitutional law was established.

Harlan Fiske Stone, Chief Justice of the United States

From 1924 to 1925 he served as U.S. Attorney General under President Calvin Coolidge, with whom he had attended Amherst College.

In 1925, Coolidge nominated Stone to succeed retiring Associate Justice Joseph McKenna, and Stone won Senate confirmation with little opposition. On the Taft Court, Stone joined with Justices Holmes and Brandeis in calling for judicial restraint and deference to the legislative will. On the Hughes Court, Stone and Justices Brandeis and Cardozo formed a liberal bloc called the Three Musketeers that generally voted to uphold the constitutionality of the New Deal.

(“The Three Musketeers” were opposed by “the four horsemen,” consisting of Justices James Clark McReynolds, George Sutherland, Willis Van Devanter, and Pierce Butler.) Chief Justice Charles Evans Hughes and Justice Owen J. Roberts controlled the balance.)

By 1941 most of the others on the court were gone, with only Stone and Roberts remaining.

Stone’s support of the New Deal was no doubt instrumental in leading to his nomination as Chief Justice by FDR in June, 1941, following the retirement of Chief Justice Charles Evans Hughes. Stone, aged 69, was quickly confirmed by the United States Senate sworn in on July 3. He remained in this post until his sudden death in 1946; his was one of the shortest terms of any Chief Justice. He was also the only justice to have occupied all nine seniority positions on the bench, having started out as the most junior Associate Justice, working his way to most senior Associate Justice, and then to Chief Justice.

Stone’s tenure as Chief Justice was not without controversy. He upheld the President’s power to try Nazi saboteurs captured on American soil by military tribunals in Ex parte Quirin, 317 U.S. 1 (1942). The court’s handling of this case has been the subject of scrutiny and controversy. One scholar, for example, argues that irrespective of congressional authorization, such extra-Judicial prosecution encroaches upon quintessential Article III functions and thereby violates the separation of powers.

Additionally, as Chief Justice, Stone described the Nuremberg court as “a fraud” to Germans and a “high-grade lynching party,” even though his colleague and successor as Associate Justice, Robert H. Jackson, served as the chief U.S. prosecutor.

According to William Rehnquist in a 2004 speech:

Stone’s biographer, Alpheus T. Mason, sums up Stone’s views of Jackson’s service this way: ‘For Stone, Justice Jackson’s participation in the Nuremberg Trials combined three major sources of irritation: disapproval in principle of non-judicial work, strong objection to the trials on legal and political grounds, the inconvenience and increased burden of work entailed. Even if the Chief Justice had wholly approved the trials themselves, he would have disapproved Jackson’s role in them. If he had felt differently about the task in which Jackson was engaged, he might have been somewhat less annoyed by his colleague’s absence.'”

It is worth noting, (again per Rehnquist):

One of Stone’s complaints was that he first learned of Jackson’s acceptance of the role of prosecutor when it was announced by President Truman. One would think that Jackson would have at least consulted Stone before accepting the job; not that Stone had any authority to forbid his taking it, but that advance notice would have made it more palatable to Stone even though he still disagreed.”

Just imagine if he had learned of the appointment by tweet….

Stone’s death came after he was suddenly stricken while in an open session of the Supreme Court. Justice Hugo Black called the Court into a brief recess, and physicians were summoned. Stone died of a cerebral hemorrhage on April 22, 1946 at his Washington D.C. home. He is buried at Rock Creek Cemetery in Washington, D.C., along with three other justices buried there (Willis Van Devanter, John Marshall Harlan, and Stephen Johnson Field).

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