Columbians as Chief Justices: John Jay, Charles Evans Hughes and Harlan Fiske Stone

RICHARD B. MORRIS, PAUL A. FREUND and HERBERT WECHSLER

Editor's Note: In its 1987 Gino Speranzo lectures, Columbia University paid tribute to the three Columbians who served as Chief Justices of the United States.

John Jay: First Chief Justice

by Richard B. Morris

John Jay was to be the first among equals--serving as Chief of a six-man Court comprising figures politically congenial--assuming the title of the first Chief Justice of the Supreme Court (although the President addressed him as Chief Justice of the United States). In his 78th Federalist letter, Hamilton had gone out of his way to reassure his readers that the judicial branch would always be the "least dangerous to the political rights of the constituents," for unlike the other two branches, "it had no influence over the sword or the purse." However, he was careful not to deny to the federal judiciary the power to invalidate "unconstitutional laws."

In those founding days of our republic, the early academic careers of the public officers were not held up to the scrutiny of the press, of Senate confirmation hearings, or of television. Fortunately for Jay, who may have the distinction of being the only Chief Justice to be suspended from college in his senior year. What happened was preserved in the family tradition, while the official record of the college is conspicuously silent on the affair. It seems that a crowd of students smashed a table in College Hall. Dr. Myles Cooper, high Tory and King's College's second president, rushed in and proceeded to interrogate the students one by one. None admitted guilt or knowing the culprit. When Jay's turn came, he denied doing it but admitted knowing who did. He refused, however, to inform against a fellow student. Haled before a faculty committee, Jay looked up his copy of the college statutes and could find no obligation of one student to inform on another. On the other hand, the statutes did enjoin obedience and proper deportment.

Jay was suspended, but an indulgent faculty permitted him to return to college for commencement, and his name appears first on the list of graduates, which included only one other at that time. Jay had already shown himself to be a principled and unbending young man.

No one really knew the exact role the Supreme Court would play when the six judges took their oaths and received their commissions. The Judiciary Act of 1789 had burdened the Supreme Court Justices with the arduous duties of circuit riding, which they early decried, even being prepared to cut their salaries if that burden could be removed--a notion, by the way, seemingly inhibited by Article III, section 1, which states that the judges' compensation "shall not be diminished during their continuance in Office."

In any case, among the Founding Fathers who shaped the destiny of the new nation, John Jay has not received adequate recognition for his seminal contributions as statesman and constitutional expositor. Circumstances have conspired to keep Jay out of the spotlight which has played on the central figures in the great constitutional drama: he did not attend the Constitutional Convention. Unlike other major figures of the time, save Franklin and Hamilton, he never became President (although he did obtain a number of electoral votes for that office.) Yet no one who did not serve in the presidency had the opportunity to distinguish himself in as many different high state and federal offices as Jay. Save for perhaps John Quincy Adams, no one else can claim to have been principal in the negotiation of two major treaties of the United States with foreign nations.

Constitutional historians have not dealt charitably with Jay. His term on the Supreme Court has, as I propose to show, been dismissed as a period of marking time. To take two most recent examples: a recent volume on the early history of the Court is subtitled Antecedents and Beginnings and devotes a mere three out of seventeen chapters to the High Court, 1790-1801, and two chapters to the circuit court, while the succeeding volume dealing with the Marshall Court, 1840-1815, bears a subtitle "Foundations of Power, John Marshall." This ignores the fact that the foundations of national power were laid in the pre-Marshall Court and were built upon and invested with prestige and boldness of purpose in contrast to the relatively prudent and even non-political course that Marshall steered through stormy waters.

Of all the high Federalists, save perhaps Hamilton, John Jay, a central figure in Confederation years by reason of his post as Secretary for Foreign Affairs, held the most advanced views of centralization, of the subordination of the states to the federal government, and of the separation of powers. He had collaborated with Alexander Hamilton and James Madison in writing The Federalist, along with a powerful polemic, An Address to the People of the State of New York, published in the spring of 1788, with its trenchant and irrefutable expose of the weakness of the Confederation. In correspondence with Thomas Jefferson and Washington, Jay had previously advocated the separation of powers and checks and balances, and he had persuaded the Confederation Congress to adopt the resolution holding treaties to be part of the supreme law of the land--an injunction to the states later embodied in the supremacy clause of the Constitution.

If Jay's Court rendered relatively few decisions (although the Chief Justice himself handled. some 400 cases on circuit), the Justices of the Supreme Court riding circuit took advantage of their confrontation with the local populace to include in their charges to grand juries expositions of the Constitution and the national political scene. Far from feeling that such comments were improper, they deemed it incumbent upon the Court to instruct the public in the essence of the brand new Constitutional system in whose construction they themselves had labored so strenuously. In the early days, Jay's charges, when delivered in the northern circuit, were courteously received; but it took courage to tell an audience of French sympathizers that they should be neutral in their conduct or to tell the host of southern debtors that they were honor-bound under the treaty with Great Britain of 1783 to pay their pre-war debts due British creditors. Taking into consideration the prevailing ignorance about the Constitution and the widespread opposition on the part of segments of the American people to its ratification, the Jay Court felt they were duty- bound to use the grand jury charges as a vehicle to educate and enlighten the nation. In the post-Jay years, Associate Justice Samuel Chase's grand jury charges assumed the character of violent diatribes, and brought about his impeachment.

The issue of separation of powers arose early. In November 1790 Alexander Hamilton, Secretary of the Treasury, submitted to Jay the question as to whether all branches of the government should intervene and assert their opposition to the principle of states' rights recently enunciated by the Virginia legislature. That body, under prodding from Patrick Henry, had condemned Hamilton's proposal for the assumption of the debts as unconstitutional. Hamilton sounded distraught. "This is the first symptom of a spirit which must either be killed or will kill the Constitution of the United States." Hamilton's feverish comment was no more out of character than Jay's cool response. He considered it inadvisable. "Even indecent interference of state assemblies will diminish their influence. The national government has only to do what is right, and if possible, be silent."

When in July of 1793 Secretary of State Thomas Jefferson passed on to Jay a request of President Washington for "the opinions of the judges of the Supreme Court" on various aspects of the executive regulations adopted under the Proclamation of Neutrality, Jay awaited the assembling of the full Court before replying. His answer pointed out that "the lines of separation drawn by the Constitution" provided checks upon each branch of the government by the other. Hence, since they were judges of a court of last resort, they felt it improper to decide extrajudicially on such matters, "especially as the power given by the Constitution to the President of calling on the heads of department for opinions, seems to have been purposely as well as expressly united in the executive department." Jay's memorable argument was unanswerable, and ended the notion of extrajudicial opinions. But the doctrine of separation of powers did not deter Jay privately from giving solicited advice to President Washington regarding both domestic and foreign matters, including matters of war and peace. He even wrote a draft of the famous Neutrality Proclamation.

Of Jay's major decisions, his first was his vote in Chisholm v. Georgia to uphold the suability of states in federal tribunals. Chisholm v. Georgia was grounded in a suit brought by the executors of a citizen of South Carolina, who under contract had supplied the State of Georgia with cloth and clothing during the war. When the case first arose in the Georgia Circuit Court, Governor Edward Telfair was served, and entered a plea denying the jurisdiction of the court on the ground that Georgia was a free and sovereign state. After preliminary hearings in Georgia, the case was put on the Supreme Court calendar for August 1792. When the case came up for argument, Georgia again refused to appear; its distinguished counsel, Alexander J. Dallas and Jared Ingersoll, denied the Court's jurisdiction, entering a formal remonstrance which Attorney General Randolph sought to refute. Randolph argued that the Constitutional provision giving the Supreme Court jurisdiction in cases in which a state was a party covered the cases in which the state was the defendant as well as the plaintiff and cited the Judiciary Act of 1789, which empowered the Court to issue all writs necessary for the exercise of its jurisdiction.

Before a large audience the Court rendered its decision in February 1793, the majority upholding its jurisdiction over the case, Iredell alone dissenting. Long recognized as a stalwart adherent of popular sovereignty, James Wilson was equally stalwart in his support of national sovereignty. Wilson's views on the suability of states by private citizens of other states should hardly have come as a surprise, since he had stated these views both at the Pennsylvania Ratifying Convention and in his law lectures at the College of Philadelphia.

But it is the Chief Justice's notion of sovereignty and his exposition thereof in this case which should concern us today. Jay contended that the sovereignty of the country as a whole passed from the Crown of Great Britain to the people of the colonies under the Declaration of Independence, and that "the people in their collective and national capacity, established the present Constitution." "The sovereignty of the nation is in the people of the nation," so ran his exposition, "and the sovereignty of each state in the people of each state." Thus the Chief Justice anticipated by twenty-six years John Marshall's classic finding in McCulloch v. Maryland that "the government of the Union then is emphatically and truly a government of the people."

As for the dissenter, James Iredell of North Carolina, the intensity of states' rights feelings and the hostility of the exercise of federal jurisdiction could not be lost upon him. Adopting a narrow construction of the Judiciary Act, which implied that Congress possessed the power to confer such jurisdiction but had actually not done so, Iredell's dissent was founded on his conception of the reserved powers of the states. Clearly Iredell's opinion could find support in Hamilton's cautionary note about the judiciary in The Federalist, and in the arguments at the Virginia Convention by James Madison and John Marshall.

And clearly the other states thought so, for Chisholm v. Georgia burst like a bomb upon an unsuspecting nation, and the majority decision was quickly repudiated by the Eleventh Amendment adopted in 1798.

What is notable and lasting about the majority opinion in Chisholm v. Georgia, so quickly overruled by Constitutional amendment, is that it raised the crucial question of the base upon which the powers of the federal government rested. Did these powers emanate from the states or from the people as a whole? Jay and Wilson had declared the people to be the source of authority. In the years to come, when the states' rights doctrine threatened the cause of national unity, Jay's position in the Chisholm case was continually called to mind and reaffirmed. On the Supreme Court Bench John Marshall asserted the people to be the source of authority in decisions such as McCulloch v. Maryland; Daniel Webster proclaimed it from the floor of the Senate; and Chief Justice Chase reaffirmed the doctrine in the years following the Civil War. The conclusion of that terrible conflict would finally vindicate Jay's concept, set forth seventy years before, of one national and one people, consisting of "free and equal citizens," with "equal justice for all."

If there was one question upon which the leading framers of the Constitution were united it was on the obligation of contracts, and there was widespread opposition to the issuance of paper money by the states and to a variety of moratory legislation on behalf of debtors. Shays' Rebellion, it must be remembered, had only just wound its way down within weeks of the Constitutional Convention. Jay's attitude did not remain in doubt. Sitting on circuit for the District of Rhode Island (long a hotbed of prodebtor agitation), the Chief Justice handed down a ruling in an unreported case which the court files still preserve. This was the lawsuit of Alexander Champion and Thomas Dickason v. Silas Case. The suit turned on an act of the Rhode Island General Assembly, passed in February 1791, allowing debtors a three-year extension to setfie accounts with their creditors and for an exemption for all arrests and attachments for such term. The court invalidated the statute on the ground that it conflicted with the obligation of contract clause of the Constitution, and the legislature of Rhode Island concurred meekly in the decision.

On the other hand, the storm over the collection of debts due by Virginia debtors to British creditors made before the war proved more than a tempest in a teapot. The issue involved the provisions of the Treaty of Peace with Great Britain, which provided that creditors shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted. For Jay, as Secretary for Foreign Affairs during the Confederation years, the failure of certain state courts to enforce this treaty pledge provided some justification for England's unreadiness to fulfill her part of the treaty--that is, withdraw from the frontier. Also he had made no secret of his views.

The argument over British debts reached a climax in the notable case of Ware v. Hylton. Not by coincidence had Jay, in a charge to the grand jury in May of 1793, declared that "debts fairly contracted should be honestly paid." Immediately after this bold charge came the hearing of Ware v. Hylton. In this case in the Virginia circuit court, Jay's was the minority opinion, the majority holding that the payment under Virginia law to the state loan office covered that portion of the debt represented by the face amount of the certificate, but even the majority refused to accept the defendant's plea that the Treaty of 1783 was not controlling. When the case reached the Supreme Court, Jay had already resigned as Chief Justice to accept the elected post of governor of New York, but the Court unanimously upheld his earlier dissenting view. Justice Chase held that the British treaty must prevail over state laws, for under the Constitution a treaty supersedes all state laws which derogate from its provisions.

In the year 1794, however, this and other controversial issues had clouded relations between Great Britain and the United States. To settle outstanding grievances President Washington dispatched John Jay to the Court of Saint James's on a controversial diplomatic mission. This was a regrettable precedent, for Jay did not resign from the Court until his return from England, and a Justice of the Supreme Court can hardly serve on a controversial diplomatic mission without bringing the Court into politics or raising the implication that somehow such presidential nominations for extrajudicial duties constitute a reward for conduct on the Bench. Jay's acceptance seems inconsistent with his strict views on the separation of powers, but, as he explained it to his wife, the pressing public considerations impelled him "to put duty above ease and domestic concerns." In fact, this meant the longest separation from his beloved wife Sally in their very happy and close-knit marriage.

Jay, as a diplomat in England, had been criticized for settling for relatively minor gains--although the withdrawal of the British Army from the frontier posts hardly falls in that category--but the terms of the treaty divided the nation and spurred an opposition party, which the framers of the Constitution had never contemplated.

Although Jay did not sit in the great Carriage Tax Case, in which the Court rendered its decision interpreting the meaning of the term "direct tax" as used in the Constitution and upholding the validity of the act of Congress, he did as early as 1790, in a unanimous memorandum to President Washington, suggest that one section of the Judiciary Act requiring Supreme Court Justices to sit in circuit was unconstitutional, both as regards the distinction the Constitution makes between judges of the Supreme Court and inferior courts and legislation which, by providing the same salary for two jobs, in effect reduced the compensation of the Supreme Court Justices. Furthermore, the act required the Court to rule on errors of its own members sitting in circuit. Attorney General Randolph was sympathetic, and passed the memorandum on to Congress--which did nothing. In a second protest in 1792, the Court merely stressed hardship and not unconstitutionality. But except for a brief respite at the end of Adams' term, the Supreme Court Justices, whether constitutionally or not, were required to engage in the arduous duties of circuit riding until late in the nineteenth century.

Before leaving Jay's role on the Bench, reference should be made to his landmark decision in Glass v. Betsey. Speaking for the Court and reversing the decision of the District Court of Maryland, Jay asserted the full power of the United States District Court, under its admiralty jurisdiction, to determine the legality of prize ships brought into ports of the United States by any foreign nation, in this instance French privateers, and denied the right of any foreign nation, in the absence of treaty stipulation, to establish a court for the exercise of such jurisdiction within the territory of the United States. Charles Warren has observed that "no decision of the Court ever did more to vindicate our international rights, to establish respect among other nations for the sovereignty of the country."

In retrospect, Jay's contribution to the Supreme Court in its formative years takes on significant dimensions despite the paucity of business that came before the tribunal in its early days. He and his associates brought the federal court system in close contact with the people of the states by their arduous circuit riding and relatively crowded dockets.

Although he had been New York State's first Chief Justice, Jay had not practiced law for many years and his decisions do not bear the stamp of a technician in the law. Instead, he is remembered as a creative statesman and an activist Chief Justice whose concepts of the broad purposes and powers of the new nation under the Constitution were to be upheld and spelled out with boldness and vigor by John Marshall. In bringing the states into submission to the federal government, in securing from both the states and the people reluctant recognition of the supremacy of treaties, and in laying the foundation for the later exercise by the Supreme Court of the power to rule on the Constitutionality of acts of Congress, Jay gave bold direction to the new constitutional regime. His tireless efforts both before and during his tenure as Chief Justice to endow the national government with energy, capacity, and scope and to assert the authority of the people over that of the states attest to his vision, courage, and tenacity. It remained for others to spell out the safeguards for individual liberties and the limitation on national power which are so essential to the maintenance of a democratic society in a federal republic. As a humanitarian and civil libertarian (a leading opponent of slavery), John Jay, the patrician, could take pardonable pride in the result.

Jay has been painted by historians and a recent columnist as staunchly aristocratic, a supernationalist who first coined the term "Americanize" I think he deserves a better epitaph, and I can think of no better one than his own words in a letter to Benjamin Rush, penned a few years before he ascended to the High Court: "I wish to see all unjust and all unnecessary discriminations abolished, and that the time may soon come when all our inhabitants of every colour and denomination shall be free and equal partners of our political liberty."

Chief Justice Charles Evans Hughes

by Paul A. Freund

To the dwindling band of us who witnessed Charles Evans Hughes at the center of the Bench, his commanding, magisterial presence seemed preordained by nature. It comes as a surprise, then, to learn that early in his tenure as Associate Justice (1910-1916) he was on the verge of a breakdown, unsure of his capability, thinking of resignation, agitated, a deeply troubled figure whom Chief Justice White, in a late-night walk with him, tried to calm and to reassure. The conventional explanation is that he took his seat without a break and a rest from the crowded final period of his governorship of New York, and that he found early on that he required an annual vacation: he was one of those, like Brandeis, who could do a year's work in eleven months but not in twelve. Hughes himself recognized his need early in life. It was m 1894 that he recorded in his Autobiographical Notes that he "discovered" Switzerland.

This explanation, in Hughes' case, implies more than a sensitive nervous system; it signifies a temperament of great intensity, utter immersion in the work at hand, the severest demands on his own powers. As Chief Justice he and his wife declined all evening social invitations except for Saturdays. Their Saturday evenings were booked a year in advance. Efficiency was his watchword. In mid-life he gave up smoking; this, he said characteristically, increased his efficiency twenty-five percent.

He arrived regularly at his office at 8:30, after a brisk walk. He managed with just one law clerk, who was a fixture for a number of years. He never missed a day of the Court's sessions, except for a period of illness in 1939 lasting several weeks. The circumstances are revealing. The Justices were assembled at a celebration of the sesquicentennial of Congress. Hughes was scheduled as a major speaker. He approached the rostrum with faltering steps, and spoke under an obvious strain, without notes. At the end of the ceremony he motioned to his colleagues, "Come on, brethren, we have work to do." It was a Saturday, conference day. Justice Roberts urged the Chief to postpone the conference, but to no avail. That evening the Hugheses were hosts on their weekly allowable social event. That night Hughes collapsed; a physician was called, and diagnosed a bleeding ulcer.

On the bench his concentration was total. He transfixed counsel with a steady gaze, betraying a readiness to intervene by a flickering of the eyelids. His questions were designed to bring a case into focus. He would say, "Doesn't your case come to this?" Or "Isn't this your real point?" followed usually by counsel's answering "Your Honor, you have stated it better than I could." And, as I will show later, he could rescue counsel floundering under a battering from elsewhere on the bench.

It would be a mistake, however, to picture Hughes as a cold and calculating machine. When he resigned as Associate Justice to run for the presidency in 1916, Holmes wrote of him in a letter to Sir Frederick Pollock: "I shall miss him consumedly, for he is not only a good fellow, experienced and wise, but funny, and with doubts that open vistas through the wall of a nonconformist conscience." This warmer side of his nature showed itself in his role as Chief Justice, to which I now turn.

Those who knew him as Chief Justice, found, at close range, only his neatly trimmed white whiskers to be frosty. I have pertinent testimony from two men who, as it happens, were members of the Senate when Hughes was nominated in 1930, and who voted against his confirmation--C.C. Dill of Washington, known in the West as the father of Grand Coulee Dam, and Hugo L. Black. Some years ago in Spokane I spoke with Senator Dill, who at ninety had total recall. He had voted against Hughes, he said, because Hughes as counsel for private power interests during his interregnum (1916-1930) had advocated private operation of Muscle Shoals and had argued that a licensee of the Federal Radio Commission to operate a radio station enjoyed a vested right, not to be displaced save for fraud or the like. The latter issue reached the Supreme Court in 1933, and Dill, having heard reports that the decision was about to be announced, was in the courtroom, deeply apprehensive. To his happy surprise, Hughes delivered a ringing opinion upholding the Commission's authority to conduct a renewal hearing on a competitive basis. At the adjournment, Dill went to the Chief's chambers, was ushered in, and said, "Chief Justice, I am here to eat crow." Hughes threw back his head and laughed. "Don't you know, Dill, that as a lawyer you do your best for your client, and as a judge you decide in the public interest?" After that, Dill recalled, whenever he presented a constituent for admission to the Supreme Court Bar, Hughes would say to the applicant "You are fortunate to have Senator Dill as your sponsor."

The second witness to Hughes' mellower nature was closer to the daily life of the Court. Near the close of his tenure, Justice Black recalled that early in his service certain columnists (Hughes liked to call them the daily columnists) wrote that Black was writing dissenting opinions too indiscriminately. The Chief came to him and said, "I hope you are not going to be influenced by what you may have read about your dissenting opinions. Dissents have been the lifeblood of this Court."

Thirty years later, Black was still moved by the episode. It was all the more impressive because Hughes was known to be generally averse to dissents in practice, however much he had lauded them philosophically as the "brooding spirit of the law."

Perhaps the most exacting duty of a Chief Justice is the task of presiding at conference. When I asked Black about Hughes in this role he said simply, "We haven't had anyone like him since." This from one who served under three successors. Justice Brandeis, who retired while Hughes was Chief Justice, was more descriptive. He said, with admiration, "Sometimes our conferences lasted six hours and Hughes would do almost all the talking." Still, Justice Frankfurter asserted, discussion was actually freer under Hughes' strict enforcement of orderly progression among the brethren than in the more at-large speaking tolerated under successors. It evidently took some courage and preparation to contest Hughes' statement and analysis of a case, delivered from scanty notes which he consulted sparingly.

As Chief Justice, Hughes proved to have more effective political sense than he showed as a candidate for President. A supreme test came with President Roosevelt's Court plan early in 1937. Hughes was asked to testify before the Senate Committee, and although inclined at first to do so, was dissuaded by the advice of Justice Brandeis that he should not appear. On the Saturday before the opposition witnesses were to be called, Senator Wheeler went to see Brandeis in the hope of getting a statement. Brandeis said that any statement should come from the Chief Justice, and when Wheeler protested that he did not know Hughes, Brandeis replied that Hughes knew Wheeler and what he was trying to accomplish. Thereupon Wheeler phoned Hughes, was welcomed at the Chief Justice's house, and arranged that a letter be drafted by Hughes for presentation on Monday. Over the weekend Hughes composed the letter, refuting the administration's claim that the Court needed additional members to cope with its docket, and submitting that more Justices would be counter-productive: more to hear, to confer, to consult, to write, to agree. Probably the most telling part of the letter was the statement that it was joined by Justices Brandeis and Van Devanter, and that although there was not time to consult others, Hughes was confident it had the support of all the members of the Court. Hughes explained the episode at the next conference of the Court, and no complaint was voiced. Nevertheless, in other quarters Justice Stone objected, not without reason, to the gratuitous assertion about those who had not been consulted, and to an oblique advisory opinion in the letter to the effect that for an enlarged Court to sit in panels might violate the constitutional mandate of "one Supreme Court."

When Senator Wheeler picked up the letter late on Sunday, Hughes remarked, pointing to the concurrence of Brandeis and Van Devanter, "They are the Court." They were, of course, the respected senior members of the liberal and conservative blocs on the Court.

Hughes may have been thinking of the occasion in 1935 when he testified in opposition to Senator Black's bill to expedite appeals in certain federal constitutional cases; on that appearance he was flanked by the same colleagues, Brandeis and Van Devanter. The fraternal relationship of Hughes and Brandeis merits some brief attention. When the colleagues of Justice Holmes concluded sadly that the time for his retirement had come, Hughes approached Brandeis to deliver the message to the old warrior. Brandeis countered that the message had best come from the Chief, who acquiesced and carried out the mission. Holmes' law clerk recounted that Hughes left the Holmes house with tears in his eyes, and on the way out met Brandeis coming in, surely not by accident. At the close of several terms, Brandeis had indicated to Hughes that he was ready to retire, but was persuaded by the Chief to continue. It was in the spring of 1939 that Brandeis made the final decision; turning to the clerk of the Court at the close of a session, he said "I'll not be in tomorrow."

A Chief's relations with his colleagues are most subject to strain in the assignment of opinion-writing. If presiding at conference is the most exacting function, assignment is the most delicate. When Hughes was in the majority on a divided Court, he sought to entrust the opinion to a moderate member. In cases of extraordinary moment, such as the Gold Clause cases and the Labor Relations Act decisions, he understandably acted as spokesman. In some instances there were considerations of individual appropriateness. Several cases involving enlarged review of the fairness of criminal trials of Negroes were assigned to Justice Black. The Social Security cases were assigned to Justice Cardozo, even though he was in a minority on the threshold question of standing to sue. The first and ill-fated flag-salute case was assigned to Justice Frankfurter, because of his moving statement at conference on the role of the public schools in fostering a spirit of national unity amid diversity--this despite the advice of Frankfurter and Roberts that the opinion should be taken by Hughes himself. (It would have helped Frankfurter's place in history if their advice had been accepted.)

The assignment process was not without criticism. Justice Stone let it be know that in his view Hughes was self-centered in this regard, keeping too many of the major cases for himself, and also choosing to author decisions for a "liberal" majority while designating others to write for a conservative majority. When the criticism came to Hughes' attention after his retirement, he sought to deflect it by stating that he had wanted to assign the Gold Cases to Stone, but that Stone in conference took a position different from that. .of either bloc of Justices. (Justice Stone did indeed write a separate concurring opinion, which, in my estimation, was the only completely honest opinion, intellectually, in the whole lot.)

At oral argument, Hughes brought a case into focus and often rescued a counsel from an onslaught from the Bench. In the Ashwander case, preferred stockholders of Alabama Power Company sued to enjoin the company from carrying out, a contract with the Tennessee Valley Authority for the sale of properties at Muscle Shoals, on the ground that TVA was unconstitutional. Counsel for the plaintiffs began by luridly describing the plans and programs of the TVA for the entire Tennessee River and its tributaries. Hughes grew impatient. "Would you mind telling us at once what this suit is, who brought it, and against whom?" Counsel was "just coming to that," but had to be pressured again to state the issue before the Court. It was, he said, "the validity of the program of the Tennessee Valley Authority." To which Hughes countered, "It is the validity of a contract, is it not?" With that, the focus was set, the bounds were drawn, and TVA escaped the first barrage against it.

In the Gold Cases, turning on devaluation of the dollar, Solicitor General Reed was the unhappy target of a bombardment from Justice Butler, who wanted to know whether the government could call a dime a dollar, could make 15 grains of gold the equivalent of 25 grains, could indeed make one grain of gold satisfy a promise to pay the 25 grains. Reed was reduced to saying "I presume it could." At this point Hughes intervened. "Well, the Government could provide for paper money, could it not?" "And is it the effect of the Legal Tender decisions that although money may have been borrowed on a gold basis, the Government may provide for repayment on a paper basis?" Mr. Reed was too battle-weary or too painfully honest to appreciate the neatness of Hughes' question. He responded, "Do you mean by 'borrowed on a gold basis' that that was written into the obligation." The rescue operation was thus almost aborted. Hughes tried again. "No, I am not speaking of the gold clause; but I am speaking of the borrowing of money which, at the time it was borrowed, was worth a certain amount of gold, and I am asking if the Legal Tender decisions did not have the effect of deciding that the Government could thereafter constitutionally provide for the discharge of that debt in paper money." The words "on a gold basis" were the one perfectly-designed bridge to throw up between the precedents of 1870 and the case at bar; the one formula whose careful ambiguity could temper the shock of repudiation with the shock of recognition.

Justice Brandeis used to say that the way to deal with the irresistible (like the "curse of bigness") was to resist it. I hardly think that Hughes would have made that response. More like Margaret Fuller, he would accept the universe, at least where the issue was one of centralizing power and not of fundamental human rights. A forecast of his views on national power over the economy was provided during his earlier service on the Court, in what was perhaps his proudest opinion, the Shreveport case. The Interstate Commerce Commission, to equalize railroad freight rates between equidistant points, had ruled that a carrier must either lower its interstate charges or raise its intrastate rates--despite a provision in the Interstate Commerce Act prohibiting the Commission from regulating intrastate rates. The Commission, Hughes reasoned, was not violating its charter; it was regulating not intrastate rates "as such," but the "relationship" between the two sets of rates. The opinion is doubly revealing--not only for Hughes' sympathetic acceptance of national power, but for his ability to surmount subtly an inconvenient clause or an embarrassing precedent. After all, in a similar vein he sustained a law that forbade employers from discharging an employee for refusing to promise not to join a union (the Coppage case), while not overruling a prior decision (the Adair case) that had overturned a statute outlawing the firing of employees who joined a union. Yellow-dog contracts, it seems, came in different shades, making it possible to discern more clearly the legitimate claims of organized labor.

It should not have been too surprising that in the New Deal period, even putting aside the danger of President Roosevelt's Court Reorganization plan, Hughes was able to support a state minimum-wage law without overruling the Adkins precedent, on the ground that the new law took account of the needs of the employer as well as of the employees. Or that, after joining a majority striking down the wage and hour provisions of the Guffey Coal Act, he could deliver a ringing opinion upholding the collective-bargaining provisions of the Labor Relations Act. Or that, while chastising the government for abrogating gold clauses in its outstanding bonds, sounding like Secretary of State Hughes lecturing Latin American states on the immorality of default, he could nevertheless give victory to the Treasury, exonerating it of any obligation to pay a premium on the bonds, since the bondholders could not prove any "damages"--as if a creditor holding a monetary obligation for an arithmetically determined sum must show "damages" in order to recover. In what was surely the nadir of constitutional law, when a majority ruled invalid under the commerce clause a federal railway pension plan because philanthropy toward exemployees was unrelated to efficiency of railway operations, Hughes put aside his allergy to 5-4 decisions and wrote an uncharacteristically stinging dissent. If his position on key issues had carried the day in the Court, the Court plan may well have been averted.

True, he joined in overturning the Recovery Act and the Agricultural Adjustment Act, but the former was sinking under the weight of failing enforcement and was due to expire by its own terms in a few weeks, while in the latter case Hughes had tried to base the decision on the curable ground of excessive delegation of power, but was forestalled at conference by Justice Stone, who argued cogently that the principle of congressional ratification of executive action would be compromised by the Chief's suggestion. At all events, Hughes did insist on an espousal in Roberts' opinion of the broad view of the spending power, which proved valuable in the subsequent Social Security case, however paradoxically it was treated in the AAA case itself.

The juridical universe that he accepted, adroitly at times, was not toto caelo at odds with that of Franklin Roosevelt. Relations between the two men, both schooled in the political life of Albany, never became embittered. When the Chief administered the presidential oath to F.D.R. for the third time, in 1941, he was tempted to say, he reminisced, "Franklin, don't you think this is getting a trifle monotonous?"

The drama of the Court crisis, which turned mainly on national power over the economy, has obscured the seminal contribution of the Hughes Court in the area of civil liberties and civil rights. The change in 1930 from Taft and Sanford to Hughes and Roberts was one of the identifiable watersheds in the Court's history. A remarkable series of decisions, generally authored by Hughes himself, established new benchmarks in freedom of the press, of speech, and of assembly. Local dictators like Mayor Hague and Governor Huey Long received their comeuppance. Governor Sterling of Texas was held subject to the injunctive power of a federal district court. The reach of habeas corpus was extended. Racial segregation in higher education was struck down. These decisions were the doctrinal wellsprings for the post-World War II surge in the Court's guardianship of procedure, participation, and personhood. As the struggles over national power fade into the inevitabilities of battles long ago, these other advances will stand out as the most memorable legacy of the Court under Hughes.

Harlan Fiske Stone

by Herbert Wechsler

Harlan Fiske Stone was an alumnus of Columbia Law School in the class of 1898; that was, however, but the start of his relation to the school. He served as a lecturer in law from 1899 to 1903, adjunct professor from 1903 to 1905, and professor and dean of the faculty from 1910 to 1923, when he resigned to devote himself to full-time practice.

Stone's personal achievement in the classroom was, by all accounts, spectacular. However, during his thirteen years as dean, his targets went beyond establishing a firm tradition of great teaching and attention to the growth of students' minds. What he developed was a complex of ideas concerning what law is and is not, how it could be thought about most usefully, and what it could be made to be. He had a vision of a school that conceived of law as "neither formal logic nor the embodiment of inexorable scientific law" but rather as "a human institution, created by human agents to serve human ends." He sought to recruit a faculty that, seeing law for what it is, would, by their teaching, scholarship and public service facilitate its prudent adaptation as conditions changed or time threw up new problems and new social needs. I do not mean, of course, to represent him as a great reformer; he was not. His concern, which he believed should also be the school's concern, was, in his modest terms, for "law improvement," the enduring task of nurturing the systematic and objective reassessment and refreshment of existing legal institutions. He thought that the then leaders of the bar had failed in the performance of that vital function, as undoubtedly they lamentably had; and he trusted to the schools to fashion future leaders who would understand and would discharge the duties of a great profession. It is not too much to say that the Law School's character in modern times derives, and hopefully will long continue to derive, from Stone's conceptions of law teaching and of law, developed and articulated there well over half a century ago.

Stone's decision in 1923 to devote his energies to full-time practice, a decision motivated at least in some part by his distaste for Nicholas Murray Butler, was promptly frustrated by President Coolidge in 1924. Congressional investigation of the work of the Department of Justice under Harry M. Daugherty, President Harding's appointee as Attorney General, had investigation of the work of the Department of Justice under Harry M. Daugherty, President Harding's appointee as Attorney General, had uncovered a malodorous condition that could be remedied only by his replacement. Coolidge called on Stone; whom he had known at Amherst, to take on the rescue operation, a summons Stone did not believe he could refuse. His appointment, warmly acclaimed in Congress and the press, was followed promptly by the reconstruction that was urgently required. In a bare nine months as the Attorney General, Stone won widespread recognition for the integrity, courage, candor and skill that he displayed in rehabilitating the department. It was not surprising, therefore, that when Associate Justice McKeuna retired after long service on the Supreme Court, Coolidge nominated Stone as his successor. The nomination was widely applauded in the Congress and the press, notwithstanding a flurry of opposition led by Senator George Norris of Nebraska, who sought to picture Stone as a representative of Wall Street. When the votes on confirmation were counted in the Senate, only six were cast in opposition. One of these, that of Senator Norris himself, was recanted sixteen years later when Stone was unanimously confirmed as Chief Justice. "In the years that have passed," the Senator said, ~"I became convinced, and am now convinced, that in my opposition to the confirmation of his nomination I was entirely in error.. It is a great satisfaction to me to rectify, in a very small degree, perhaps, the wrong I did him years ago." The statement tells us something nice about George Norris. It tells us even more about the magnitude of Stone's achievement as an Associate Justice in the years from 1925 to 1941.

When Stone came to the Court, the dominant problem of American public affairs was that of marshaling the capacities of government to promote individual and social welfare by ordering the economic forces that industrial enterprise had unloosed. Efforts to fashion constructive legislative intervention had encountered conceptions antipathetic to government that had prevailed for a long time. Such conceptions might be defeated at the ballot box; it was more difficult to overcome them on judicial review by the Supreme Court. Restrictive applications of the due process and equal protection clauses of the Fourteenth Amendment weighed heavily upon the power of the states to formulate protective measures, with further restrictions derived from the negative implications of the commerce clause if the activity was interstate. At the same time, the power expressly conferred on Congress "to regulate commerce… among the several states" was interpreted so narrowly that it precluded national action of fundamental economic reach. However the issue might be posed in concrete cases, the protent was that governmental action must confine itself to very modest limits if the judicial test were to be survived.

In the overthrow of this entrenched position Justice Stone played a heroic part. The pioneering work had, to be sure, been done for years by Justice Holmes and Justice Brandeis. That Stone would largely share and strongly fortify their dissenting views was not apparent at the start of his judicial career, but before long became quite clear. By 1929, Chief Justice Taft was voicing his chagrin that, as he put it, Stone "has ranged himself with Brandeis and with Holmes in a good many of our constitutional differences." Justice Cardozo replaced Justice Holmes in 1932 and cast his lot with the dissenters, but that, of course, produced no change in the numerical division of the Court. By 1937, however, in the shadow of the Roosevelt Court Reorganization plan, Chief Justice Hughes and Justice Roberts joined Brandeis, Stone and Cardozo in determining the course of the decisions. As the Old Guard Justices departed in the four succeeding years, to be replaced by Roosevelt supporters, the "historic shift of emphasis in constitutional interpretation," as Stone modestly described what had occurred, transformed the jurisprudence of the Court relating to the issues that had been in controversy for so long.

These issues, it is useful to recall, varied significantly during Stone's long tenure. For roughly the first decade they primarily involved the validity of state attempts to cope with economic problems by regulation and taxation. Thereafter, the issues involved primarily the validity of national attempts to come to grips with problems thought by both the President and Congress to defy an insular solution, the host of measures that derived from the New Deal. Throughout, but especially in the last years, there also were more poignant issues to be faced; the claims of individuals that fundamental areas of personal freedom and autonomy (civil liberty, if you will, and civil rights) were protected against governmental infringement by the Bill of Rights and Civil War Amend "as we read legislative codes which are subject to continuous revision with the changing course of events, but - as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government."

Stone's work in dealing with the issues I have noted is embodied in more than 200 opinions for the Court or in dissent that cannot possibly be summarized in a brief paper. It may, however, be instructive to provide some illustrations of the contribution that he made.

1. State Regulation. When Stone was appointed to the Court, the majority held fast to the dogma that governmental regulation of prices or of wages was invalid, an impairment of the liberty of contract deemed to be protected by the Fourteenth Amendment. In 1927 and 1928 Stone dissented vigorously on the issue of price, perceiving "no controlling difference between reasonable regulation of price...and other forms of appropriate regulation...," a position that prevailed in 1934 when minimum prices fixed under the New York fluid milk law were sustained. With price regulation out of the shadow, the question of wages remained. That issue came to the Court in 1936 to be turned aside on highly technical grounds that Stone considered insufficient. His dissent protested that "It is not for the courts to resolve doubts whether the remedy by wage regulation is as efficacious as many believe, or is better than some other or is better even than the blind operation of uncontrolled economic forces. The legislature must be free to choose unless government is to be rendered impotent." A year later the battle was over when the Washington minimum wage law was sustained.

From that time forth there was no doubt that whatever lines might ultimately be drawn, the states had regained the power to govern, save as their power might be limited or preempted by the national authority in areas in which it is supreme.

2. The Powers of Congress. Prior to the explosive issues engendered by the Roosevelt program, the scope of the great vehicles of national power embodied in the Constitution had not during Stone's service been the subject of important consideration. When the first test of the New Deal came in an attack on the Petroleum Code, the Code was held invalid on the ground of excessive delegation, Justice Stone joining in the judgment. The Gold Clause cases followed with a narrow escape for the government in the case of the government bond, Justice Stone concurring only in result. Promptly thereafter, the Railroad Retirement Act, man dating that the interstate roads establish pensions for their superannuated employees, was held invalid--not only on due process grounds that could be remedied but also on the fatal ground that it was not a regulation of "commerce," with Brandeis, Stone and Cardozo joining in Hughes' powerful dissent. Three weeks later the N.I.RA. was stricken down, the Court unanimous that the delegation was too wide and that the labor provisions of the Live Poultry Code dealt with a local matter beyond reach of Congress.

The Tennessee Valley Authority Act was, to be sure, sustained at the next term, Chief Justice Hughes writing the opinion, but the Agricultural Adjustment Act fell with a declaration that Congress could not use the national spend-mg power to induce farmers to reduce their crops, agricultural production being the exclusive concern of the states. The Bituminous Coal Conservation Act was next to go on the ground that mining coal also was "production" and not commerce, notwithstanding the dependence of much of the country on its availability and use; labor conditions in the mines were also the exclusive concern of the state. Reading the decisions together, the Social Security Act seemed doomed, and it was difficult to see how the National Labor Relations (Wagner) Act could succeed under the standards by which the Coal Act had failed. Hughes and Cardozo each filed dissents in the Coal case in which Brandeis and Stone concurred. The dissent in the Agricultural Adjustment case was written by Justice Stone, with only Brandeis and Cardozo in support.

Justice Stone's dissent in the case of the AAA. marks in many ways the high point of the struggle. Because Congress, it was assumed, could not compel a farmer to reduce his crops, it could not (by a magnificent non-sequitur) "indirectly accomplish those ends by taxing and spending to purchase compliance." So Justice Roberts -had reasoned for the Court. The position was ridiculed by Justice Stone:

Even more significant, however, than Justice Stone's position on the merits was his reminder that the only check upon the Court is "our own sense of self-restraint," that "the conscience and patriotism of the Congress and the Executive" are also "a restraint on the abuse of power," and that "interpretation of our great charter of government" leads to destruction when it "proceeds on any assumption that the responsibility for the preservation of our institutions is the exclusive concern of any of the three branches of government."

This was more than an answer on the specific issues of the case. It was a frontal charge to the a majority of the Court. In the struggles that followed in the Congress and the country, it was the battle cry of the attack.

The story moves quickly thereafter. Early in February 1937, the President proposed his Court Reorganization Plan in a message to Congress; it would have authorized the President to appoint, with the consent of the Senate, an additional Justice of the Supreme Court for each Justice over seventy years of age who did not retire on full salary, save that the number of Justices could not at any time exceed fifteen.

At the height of the great debate upon the plan, the Court sustained the collective bargaining provisions of the Railway Labor Act in an opinion by Justice Stone. Two weeks later the National Labor Relations Act survived the judicial test, Chief Justice Hughes writing the opinions of five members of the Court. The judgments sustaining the Social Security Act followed, Cardozo writing in support of the federal statute and Stone in support of the enactment of the state.

Decisions of the next few years made clear how far the terms of settlement of the great crisis finally accorded to the national authority the powers that a modern nation needs. One of the most important of these judgments was Stone's opinion in the Darby Lumber case in 1941, sustaining the Fair Labor Standards Act of 1938. Federal authority, he held, may deal directly with the conditions of productions for interstate commerce. The old Child Labor Act decision of 1918, Hammer v. Dagenhart, in which Justice Holmes filed his great dissent, was with much satisfaction overruled. The opinion finally rejected the idea that radiations from the Tenth Amendment limited the scope of national authority. The amendment reserved what was not delegated but did not circumscribe the delegations.

In a very different field from commerce, Stone affirmed in United States v. Classic the power of Congress to penalize abuses in the conduct of primaries to select candidates for federal office, specifically, the denial of the right of a qualified elector to vote. The decision laid the predicate for the later, ruling forbidding the long-standing exclusion of Negroes from Democratic primaries in the South, a crucial step in the modern enfranchisement of blacks and the political rejuvenation of a vital portion of the country.

It would distort Justice Stone's participating in the reformulation of constitutional doctrine to epitomize his contribution in terms of the vindication of government alone. For it is the paradox of the period that new areas of constitutional protection were emerging even as the power to govern was being sustained. Thus the First Amendment freedoms of religion, speech and press were held, with Stone's support, to be protected against action of the states by the due process clause of the Fourteenth Amendment and were accorded a progressively. expansive meaning.

Stone wrote little in this field but what he wrote was of immense importance, culminating in his lone dissent in the compulsory flag salute case of 1940, which became the judgment of the Court in 1943. The Constitution, he admonished, "expresses more than the conviction of the people that democratic processes must be preserved at all costs. It is also an expression of faith and a command that freedom of mind and spirit must be preserved, which government must obey, if it is to adhere to that justice and moderation without which no free government can exist." That moving statement, made nearly a half-century ago, assuredly epitomizes the main thrust of constitutional development and exegesis in our time.

Any appraisal of the influence -that courts or judges of the past have exerted on the future is certainly a problematic venture. I make bold nonetheless to say that the fact that the power to govern is unchallenged now in areas where government is sorely needed, that our federalism is more viable than it once was, that civil rights and civil liberty are more secure, may be attributed in part to the persuasiveness of Stone's opinions in his 21 years of service on the Supreme Court.