Remarks at the meeting of the Bar of the Supreme Court of the United States in memory of Chief Justice Stone, November 12, 194

Wechsler, Herbert

English

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 24 | Issue 2 Article 2Winter 1949Mr. Chief Justice StoneHerbert WechslerColumbia UniversityFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Courts Commons, Judges Commons, and the Legal Biography CommonsThis Article is brought to you for free and open access by the Law SchoolJournals at Digital Repository @ Maurer Law. It has been accepted forinclusion in Indiana Law Journal by an authorized editor of DigitalRepository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationWechsler, Herbert (1949) "Mr. Chief Justice Stone," Indiana Law Journal: Vol. 24 : Iss. 2 , Article 2.Available at: http://www.repository.law.indiana.edu/ilj/vol24/iss2/2MR. CHIEF JUSTICE STONE*HERBERT WECHSLERfThe custom of this Bar for almost a century was tolament the passing of a Justice by wearing the badge ofmourning during the term. It is well that the practicd hasbeen altered for the man in whose memory we are assembledwas no believer in such outward signs. He warmed bothhands robustly before the fire of life but when it sank-though suddenly-we may be certain he was ready to depart.His counsel for today would be to think not on his deathbut on his work. His hope would be no more than that theeffort and the product of his years may yield for us, whosework is yet undone, some signal of the path we wish to fol-low, some token of our duty.Such title as I have to speak about the meaning of thisuseful life is held in common with a score of others. Hetook us from the classroom, as you know, acting with thatspecial faith in youth and in the schools that somehow ismaintained upon this Court. We held a perch beneath therafters of his chambers usually for but a single term. Thoughjointly we bear witness to the full span of his judicial serv-ice, each of us knows nothing but a fragment of the whole,fragments that inevitably differ with all the changes in theissues and the emphases of more than twenty-one excitingyears.If all could be heard, the seniors of our number wouldspeak of the time of the novitiate, when fresh from teaching,practice and the Cabinet he took his seat upon this Bench.These were the terms of first impressions, of initial sound-ings in the sea of controversy that constitutes the businessof the Court. Others would tell of terms when this was over,the bearings taken and directions settled upon many of themajor issues of the time. This was the period when thename of Stone was so often joined with those of Holmes andBrandeis or later, of Cardozo, in the great triumvirates thatgave warning of the storm approaching before the lightning* Remarks at the meeting of the Bar of the Supreme Court of theUnited States in memory of Chief Justice Stone, November 12,1947.t A.B. 1928, College of City of New York; LL.B. 1931, ColumbiaUniversity. Professor of Law, Columbia University; formerlyAssistant Attorney General of the United States.INDIANA LAW JOURNALwas seen by others or the thunder generally heard. A thirdgroup would dwell upon the years of crisis, the directionof the nation's polity hinging on the trend of the decisions,conflict within the Court no less acute or less portentous thanthe challenge to the very institution mounting swiftly to aclimax in another place upon this hill. Still other voiceswould describe the time of the judicial readjustment, theunfolding of what the Justice called "the historic shift ofemphasis in constitutional interpretation" that began beforethe Great Debate was through. This was for him the periodof the prophetic realization, the dissents of former years de-livered now as judgments on so many basic questions, thewhole a triumph of persistent conviction that has its parallelin the lives of few judges, its analogue in the stories of fewmen.Finally, there are among us some who know the yearsof service as Chief Justice, judicial labor no less heavy forthe addition of administrative duties, the challenge of thegreat responsibility sharpened by the awful fact of war.Change in the contentious areas of constitutional controversywas by this time clearly delineated. So too was it madeplain that controversy itself had not been ended by thechange; that here, as elsewhere, no solutions can be finaland definitive-for all give birth to new issues rising fromthe ashes of the old; that powerful forces and high values,pursuing their persistent competition, ever generate freshdilemmas to challenge the wisdom of this Court.Within these changing settings, different themes standforth throughout the years. The largest point in the begin-ning had to do, of course, with insular experimentation, thepower of a state's democracy to fashion changes in the legalorder by laying on the enterprise within its borders restraintsor taxes deemed by it-but not by many others-to advancethe commonweal. The point, thereafter, has to do with mat-ters far from insular, the power of the men who represent thefull constituency to marshal the resources of the nation inways they think constructive-though many men in everystate believe the measures baneful and their purpose evenworse. The point in other contexts is concerned with thepolicing of our federalism, assessing the authority of onestate to force its will on men or institutions centered withinother borders or engaged in commerce among many states-[Vol. 24MR. CHIEF JUSTICE STONEtheir standing with the local legislature little more than thatof strangers in the gates. Another point, in many ways themost perplexing, centers in the differences that mark con-trols upon the ways of men in getting and in spending andthose that touch affairs of conscience or expression, involv-ing an assault upon the final bulwark of the single humanspirit facing other men, his country and his God.On such great themes as these, the Justice, as occasionoffered, brought to bear his full creative power, knowingthat to men of law there are no deeper problems, certainof the title and the duty of this Court to fashion from ourbasic Charter answers that will stand against the cries offaction and the test of time; certain also that no answerstands merely on the ground of its authority, that whatmaintains a judgment in the end is its appeal to reasonfor support.This is, of course, to point to what for us could not butbe the highest moments, the days in which the Justiceshaped, whether for the Court or in dissent, opinions draw-ing on the final sanction-the instrument "intended," as heoften liked to quote, "to endure for ages to come, and conse-quently, to be adapted to the various crises in human af-fairs." His insight was that both the Constitution and thisCourt are "instruments of government," that government isan intensely practical activity, its problems centered in theareas of deepest conflict in the interests and affairs of men,its measures born far less of changing theories than ofchanging facts. He had, therefore, the firm conviction thatthe basic law must stand above the normal reaches of theconflict and the pressures; that when it speaks to problemsof such practical dimension it must direct itself to actualityand cannot rest on vague or flimsy formulae so often scat-tered in the books. It shocked him always to discover howmuch there was in the decisions or opinions offered as au-thority in argument before this Court that did not satisfythese crucial standards; and nothing pleaged him more thanthe belief that he had made sound principles articulate inworking over some such area of barren ground. He soughtthroughout, within the great tradition of this Court, to showthat the inherited Document has few absolutes to limitdemocratic action, that those it has are in the fields whereonly absolutes-or something very close to them-will keep19491INDIANA LAW JOURNALthe action democratic or will preserve those final decencieson which Americans have always been prepared to stake theirtitle to survive.Men whose fashion is to press their power to the ut-most, and they are always many, will never understand howmuch there was of self-subordination in this great work;the talent and the passion-not to speak of craft-so oftengiven to sustaining measures that the Justice, had theirmerits been for him, would certainly have held pernicious;the strength of the conviction that, except within the narrowlimits where the Constitution speaks most firmly or the high-est values stand, the antidote for legislative error must befound not in this Court but at the polls. An age which evertends, to specialize its interests does well to ponder and tohonor this capacity for disinterested judging, this ability toetch a standard of adjudication that sustains the governmen-tal structure-whatever party has its transient dominance,whatever claims to power or advantage win political accept-ance for the time.And even in the reaches where the Justice thought theConstitution posed a bar to legislation-a field in which hedid not hesitate to stand' alone-the men or doctrines oractivities he deemed entitled to protection would not oftenhave achieved a shred of his approval, were the issue whathe thought was good or useful rather than the right of othermen to do or hold or urge what in their wisdom and in God'sbroad grace they deemed desirable, however much their fel-lows disapproved. I say an age which seems progressivelyto specialize its interests can do no better than to contemplatethis man whose greatest work inhered so largely in affirm-ing the power or the right of others, be they officials orthe victims of officials, to do or to maintain what in hisprivate view he would have thought quite base or wrong.Not all men who viewed their duty thus would find thework congenial-despite the dignity and honor that attachesto the highest court. In this case, though, I think the mis-sion was completely sympathetic. The reason is, in part,that one who viewed all power as a public trust, its onlysatisfactions in the chance to render service, was devotednecessarily to abstract and ideal ends. The deeper reasonis that Justice Stone was of that small group who really havethe democratic spirit-to use a term that has been much[Vol. 24MR. CHIEF JUSTICE STONEabused and never more than at this time. I use it, let meadd, in none of those strange senses that distort the minds ofmen today, nor even in the sense in which democracy istaken to bespeak benevolent compassion. I mean no moreand certainly no less than the hard faith that other men,both in and out of office, however much we disapprove theirnatures or their works, have rights that are entitled to re-spect; that to define these rights, to cherish and supportthem is the very heart of the enduring quest for libertyand justice under law.The quality of which I speak is that which more thansixty years ago a Massachusetts judge named Holmes de-clared "the deepest cause we have to love our country,-thatinstinct, that spark that makes the American unable to meethis fellow man otherwise than simply as a man. . . ." This,indeed, if nothing else, we know who shared, however briefly,the democracy of Justice Stone's own workshop. I dreadto think, even at this distance, how often our youthful dis-course must have seemed to overlook the fact that the Justicerather than his law clerk was the man a President had chosenand a Senate had confirmed. The dread is softened by thethought that no man found transgression less in such pre-sumption, no man had less pride of place or was moregenuinely eager to hear stated any relevant idea.To speak of self-denial in. Justice Stone's conception ofjudicial duty is not, of course, to mean that he believed thejudge's task mechanical or even marginal-and least of allthe task of judges of this Court. Needless to say, the "shiftin emphasis in constitutional interpretation," to use hiswords again, involved the most creative adjudication, prem-ised on the view that, as he said, "judicial interpretations ofthe Constitution, since they were beyond legislative correc-tion, could not be taken as the last word," but were "opento reconsideration, in the light of new experience and greaterknowledge and wisdom."The spirit was the same-though the limits anddesiderata somewhat different-in the areas that are not be-yond the pale of legislative correction, the normal work oflaw administration that yields the largest quantity of gristfor this Court's mill. No one could more firmly hold anissue closed because a valid statute gave the final answer.But no one would more candidly conclude, when all was1949]INDIANA LAW JOURNALweighed, that Congress left the issue open, or shrink lessfrom the view that in such case judicial choice is free andmust be made on what amount to legislative grounds. Hesaid that recognition of these truths gave "high distinction"to the work of Justice Brandeis. No recognition ever hasbeen clearer than his own. Within the limits that he sethimself, his conscious purpose was to practice what he calledthe "creative art by which familiar legal-doctrines have beenmolded to the needs of a later day," the "process," as he putit, "which throughout the history of the law, has in varyingdegrees served to renew its vitality and to continue itscapacity for growth."To state such principles is not, of course, to give themeasure of their application. The art of which he spoke,like other arts, achieves its greatness in the judgment ofthe artist, the instinct or the talent that knows where andhow to draw the lines between competing values, to findresults that have the quality of median proportion that men,wherever reason has its dominance, perceive as the constitu-ent of justice. This is, I think, the final standard that thecountry used in placing such consummate confidence inJustice Stone's judicial work; it found his judgment true.There are no better words in which to give the spirit of thissentiment than those that Ezra Thayer used of Gray ofHarvard: he was a "rock of trust." Men had the sense thatin his hands a balance had been struck between the polarclaims of states and nation, government and enterprise,groups and individuals, progress and tradition.I have a final word that is concerned less with theJustice or the Chief who gave us access to his chambers thanwith the man who gave us entry to his home. Young lawyershave a tendency to view the law as all-absorbing, forgettingthat the richness of a life inheres as much in range of inter-est and appreciation as in the rule of service and devotionto the daily task. On this point too his law clerks could notbut note with awe the Justice's example. For while noother interest could compete with his judicial duty, hemanaged somehow to dispatch his work without exhaustingeither time or energy. Somehow within the framework ofthis busy life he found the moments to devote to living: thehouse and study Mrs. Stone and he designed with scrupulousattention to detail; music and the arts, including most dis-[Vol. 24MR. CHIEF JUSTICE STONEcriminate collecting; Amherst, the Folger library and laterthe Gallery and Smithsonian; evenings of the widest read-ing; visitors of grand and humble station, received withequal grace; the garden as a place to work as well as linger;long and, if a weaker man may say so, brisk walks each day,with small regard to weather; a joy in talk and growingthings and company and knowledge; a taste for wine when itis good; an abiding interest in affairs of scholarship andeducation; a helpful word to other men who sought adviceor lacked encouragement.Somehow, I know not how, all this was fused with hisjudicial labor; the life we had the privilege of witnessingwas "simple, natural and untroubled"-to borrow words theJustice used in speaking of the birthplace of the Presidentwho gave him his original commission. In a phrenetic age,he was unruffled and unhurried. His household had thecalm of a New England landscape. He prized the thingsthat make up a developed civilization. He loved the thingsthat in the end we have law for.Most of our number saw him last when in the springof 1945 he and Mrs. Stone dined with his law clerks at theclose of twenty years of service on this Court. There wasa moment in the evening when some lines were read fromthe first law lecture given at Columbia College, that ofJames Kent in 1794. The passage began:The events which are rapidly crowding the present era, are tobe deemed among the most solemn, and the most important intheir consequences, of any which have hitherto been displayedin the history of mankind. Great Revolutions are taking placein the European World, in Government, in Policy and inmorals and a new turn will be given to the habits of thinking,and probably the destination of human society. But amidstthe universal passion for novelty, which threatens to overturneverything which bears the stamp of time and experience, wein this country ought to be extremely careful, not to pass alongunconscious of the labours of the Patriots who effected ourRevolution; nor let the admirable Fabric of our Constitutions,and the all pervading Freedom of our Common Law, be leftunheeded or despised.The passage from Kent's lecture ended:I am most thoroughly, most deeply persuaded, that we arefavoured with the best Political Institutions, take them for allin all, of any People that ever were united in the Bonds of19491202 INDIANA LAW JOURNAL [Vol. 24Civil Society. The goodness of these Institutions will brightenon free investigation, and faithful experiment, and be respectedaccording as they are understood.It seemed to me that, as the words were read, thetwelfth Chief Justice, once the third Kent Professor of Lawin Columbia University, smiled with interest and approval.I know that many thought, as I did, of the miracle by whichideas project themselves across the chasm of the years, thethoughts enduring as their applications change. In ourmind's eye we saw a Chief Justice yet unborn surroundedby his law clerks born much later; and we knew that whentheir discourse touched the great men of the past who hadsustained their country's institutions, it would include hightribute to the work of Harlan Stone.

Mr. Chief Justice Stone

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Mr. Chief Justice Stone

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