ARTICLE: ACTIVISM AND RESTRAINT: THE EVOLUTION OF HARLAN FISKE STONE'S JUDICIAL PHILOSOPHY * Skip over navigation
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Copyright (c) Tulane University 1995.
Tulane Law Review

ARTICLE: ACTIVISM AND RESTRAINT: THE EVOLUTION OF HARLAN FISKE STONE'S JUDICIAL PHILOSOPHY *



* Editorial Note: In general, unless common sense dictates otherwise, the Tulane Law Review does not depart from A Uniform System of Citation. However, in accord with the author's wishes, some of the citations in this Article do not adhere to the "Harvard Bluebook" format.

November, 1995

Tulane Law Review

70 Tul. L. Rev. 137

Author

Miriam Galston *

Excerpt

Harlan Fiske Stone was an Associate Justice on the Supreme Court from 1925 to 1941, and was the Court's Chief Justice from 1941 until 1946. During that period, he developed a jurisprudence that mixed judicial activism on issues of civil and political rights with judicial restraint on economic matters. Most scholars who have addressed Justice Stone's mixed jurisprudence have concluded that he was fundamentally an adherent of judicial restraint and that his activism was an exception to his restraint. This Article challenges that thesis by demonstrating that, before he joined the Court, Stone was a supporter of judicial activism with respect to both economic and noneconomic freedoms. The Article then explores the evolution of Stone's thought to determine how he finally arrived at his mixed jurisprudence. It demonstrates that Stone believed that the social and economic changes occurring in America and political events abroad required more economic experimentation by legislatures. For that reason, judicial restraint was required in determining the constitutionality of economic regulation.
 
I. INTRODUCTION: REDEFINING THE PARADOX

The year 1937 is generally regarded as a watershed in American constitutional history. 1 The traditional interpretation of the events of 1937 is that the Supreme Court did an about face, abandoning its longstanding attachment to the jurisprudence 2 of substantive due process in the face of President Roosevelt's overwhelming electoral victory and his plan to "pack" the Court by appointing several new Justices who would be sympathetic to the New Deal's legislative agenda. 3 Although several scholars have challenged ...
 
 
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