Harlan Stone
By:
October 11, 2009
Along with Justices Brandeis and Cardozo, Justice (later Chief Justice) HARLAN STONE (1872-1946) was counted among the Three Musketeers — the progressive minority of the Supreme Court during the early years of FDR’s presidency. Since Lochner v. New York, decided in 1905, in which the Supreme Court had struck down a New York state law capping the number of hours bakers could work (as an unreasonable interference in the individual right to contract), state and federal laws that affected business owners (even tenuously) had not fared well; after 1937, however, allegiances shifted, and Stone often led the Court in supporting New Deal legislation. His most important legacy, though, rests on a single footnote in an otherwise unremarkable case, United States v. Carolene Products (1938). In it, Stone noted that although in the instant case the Court merely reviewed the legislation deferentially (known generally as rational-basis review), that in cases where legislation prima facie runs counter to constitutionally guaranteed rights, or unduly affects equal participation in the political process, or targets “discrete and insular minorities,” it will be subject to a higher standard of judicial review (strict scrutiny). This footnote expressed a theory of judicial review in a democratic system that formed the basis for many of the Warren Court’s most significant decisions protecting First Amendment rights and the rights of minorities — notably, Brown v. Board of Education. Although highbrows are often called self-indulgent or pedantic for their use of footnotes, Stone’s explosive Footnote 4 proves the anti-highbrows wrong.
***
Each day, HILOBROW pays tribute to one of our favorite high-, low-, no-, or hilobrow heroes on that person’s birthday. Click here for more HiLo Hero shout-outs.