Aug 21, 2017
I drink coffee in the morning on a round, ornate oak table that once belonged to Harlan Fiske Stone, a U.S. Supreme Court justice from 1925 to 1946 and the chief justice for the last five of those years. Stone and his family spent their summers on this windswept, remote island six miles off the coast of Maine.
Stone, a Republican and close friend of Calvin Coolidge and Herbert Hoover, embodied a lost era in American politics. His brand of conservatism, grounded in the belief that the law is designed to protect the weak from the powerful, bears no resemblance to that of the self-proclaimed "strict constitutionalists" in the Federalist Society who have accumulated tremendous power in the judiciary. The Federalist Society, at the behest of President Trump, is in charge of vetting the 108 candidates for the federal judgeships that will be filled by the administration. The newest justice, Trump appointee Neil Gorsuch, comes out of the Federalist Society, as did Justices Clarence Thomas, John Roberts and Samuel Alito. The self-identified "liberals" in the judiciary, while progressive on social issues such as abortion and affirmative action, serve corporate power as assiduously as the right-wing ideologues of the Federalist Society. The Alliance for Justice points out that 85 percent of President Barack Obama's judicial nominees--280, or a third of the federal judiciary--had either been corporate attorneys or government prosecutors. Those who came out of corporate law firms accounted for 71 percent of the nominees, with only 4 percent coming from public interest groups and the same percentage having been attorneys who represented workers in labor disputes.
Stone repeatedly warned that unchecked corporate power would mean corporate tyranny and the death of democracy. He was joined in that thinking by Louis D. Brandeis, his fellow justice and ally on the court, who stated, "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both."
The supposed clash between liberal and conservative judges is largely a fiction. The judiciary, despite the Federalist Society's high-blown rhetoric about the sanctity of individual freedom, is a naked tool of corporate oppression. The most basic constitutional rights--privacy, fair trials and elections, habeas corpus, probable-cause requirements, due process and freedom from exploitation--have been erased for many, especially the 2.3 million people in our prisons, most having been put there without ever going to trial. Constitutionally protected statements, beliefs and associations are criminalized. Our judicial system, as Ralph Nader has pointed out, has legalized secret law, secret courts, secret evidence, secret budgets and secret prisons in the name of national security.
Our constitutional rights have steadily been stripped from us by judicial fiat. The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Yet our telephone calls and texts, emails and financial, judicial and medical records, along with every website we visit and our physical travels, can be and commonly are tracked, recorded, photographed and stored in government computer banks.
The executive branch can order the assassination of U.S. citizens without trial. It can deploy the military into the streets to quell civil unrest under Section 1021 of the National Defense Authorization Act (NDAA) and seize citizens--seizures that are in essence acts of extraordinary rendition--and hold them indefinitely in military detention centers while denying them due process.
Corporate campaign contributions, which largely determine who gets elected, are viewed by the courts as protected forms of free speech under the First Amendment. Corporate lobbying, which determines most of our legislation, is interpreted as the people's right to petition the government. Corporations are legally treated as persons except when they carry out fraud and other crimes; the heads of corporations routinely avoid being charged and going to prison by paying fines, usually symbolic and pulled from corporate accounts, while not being forced to admit wrongdoing. And corporations have rewritten the law to orchestrate a massive tax boycott.
Many among the 1 million lawyers in the United States, the deans of our law schools and the judges in our courts, whether self-identified liberals or Federalist Society members or supporters, refuse to hold corporate power accountable to the law. They have failed us. They alone have the education and skill to apply the law on behalf of the citizens. They alone know how to use the courts for justice rather than injustice. When this period of American history is written, the legal profession will be found to have borne much of the responsibility for our descent into corporate tyranny. Lawyers are supposed to be "officers of the court." They are supposed to be sentinels and guardians of the law. They are supposed to enlarge our access to justice. They are supposed to defend the law, not subvert it. This moral failure by the legal profession has obliterated our rights.
The radical libertarians in the Federalist Society, now ascendant within the legal system, champion a legal doctrine that is essentially preindustrial. It is centered exclusively on the rights of the individual and restricting the power of government. This can at times lead to rulings that protect personal liberty. The followers of this doctrine on the Supreme Court, for example, voted to overturn Connecticut's eminent-domain rape of a New London working-class neighborhood to make way for a pharmaceutical plant. The liberals, who formed the court majority, endorsed the taking of the neighborhood.
Another example of radical libertarianism on the bench occurred when attorneys Bruce Afran and Carl Mayer and I sued President Obama over Section 1021 of the NDAA, which overturned the 1878 act that prohibited the government from using the military as a domestic police force. We garnered support from some charter members of the Federalist Society. The proclivity by the Federalist Society to hold up the primacy of individual rights became especially important when, after the temporary injunction of Section 1021 issued by the U.S. District Court for the Southern District of New York was overturned by the appellate court, we had to file a cert, or petition, to request that the case, Hedges v. Obama, be heard before the Supreme Court.
"As obnoxious as [Antonin] Scalia was on cultural issues, he was the strongest modern justice in terms of protecting First Amendment speech, press and assembly rights--no liberal came anywhere near him in these areas," Afran told me about the late justice. "In fact, Scalia was the justice who sympathized with our cert petition in the NDAA case. [Justice Ruth Bader] Ginsburg denied our petition without circulating it among the other justices. When we went to Scalia, he immediately asked for additional briefs to circulate. It was his dissents in the Guantanamo cases that we relied on in our cert petition. He issued strong dissents holding that the Guantanamo inmates and others taken by the military in Afghanistan should have complete civil rights in criminal prosecutions. He went much further than the majority did in these cases and condemned any holding of civilians by the military."
But although the Federalist Society purports to be against curtailment of civil liberties, with some members embracing traditional liberal positions on issues such as drug laws and sexual freedom, the organization also supports the judicial system's position that corporations hold the rights of individuals. It is hostile to nearly all government regulations and regulatory agencies including the Environmental Protection Agency and the Securities and Exchange Commission. It opposes the rights of labor unions, voting rights laws, gender equality laws and the separation of church and state. It seeks to outlaw abortion and overturn Roe v. Wade. The self-proclaimed "originalism" or "textualism" philosophy of the Federalist Society has crippled the ability of the legal system to act en masse in class action suits against corrupt corporate entities. And for all the rhetoric about championing individual liberty, as Mayer pointed out, "they never did a thing about any First Amendment intrusions that all of the legislation passed after 9/11 involved." The Supreme Court did not accept our cert, leaving Section 1021 as law.
The Federalist Society says it seeks legal interpretations that are faithful to those that would have been made at the time the Constitution was written in the late 18th century. This fossilization of the law is a clever rhetorical subterfuge to advance the interests of the corporations and the oligarchs who have bankrolled the Federalist Society--the Mercer Foundation, the late John Olin, the late Richard Scaife, the Lynde and Harry Bradley Foundation, the Koch brothers and the fossil fuel industry. The Federalist Society has close ties with the American Legislative Exchange Council (ALEC), whose lobbyists draft and push corporate-sponsored bills through state legislatures and Congress.
Stone knew that the law would become moribund if it was frozen in time. It was a living entity, one that had to forever adapt to changing economic, social and political reality. He embraced what Oliver Wendell Holmes called "legal realism." The law was not only about logic but also about the experience of a lived human society. If judges could not read and interpret that society, if they clung to rigid dogma or a self-imposed legal fundamentalism, then the law would be transformed into a sterile constitutionalism. Stone called on judges to "have less reverence for the way in which an old doctrine was applied to an old situation." The law had to be flexible. Judges, to carry out astute rulings, had to make a close study of contemporary politics, economics, domestic and global business practices and culture, not attempt to intuit what the Founding Fathers intended.
Stone was wary of radicals and socialists. He could be skeptical of New Deal programs, although he believed the court had no right to reverse New Deal legislation. But he understood that the law was the primary institution tasked with protecting the public from predatory capitalism and the abuses of power. He voted consistently with Holmes and Brandeis, two of the court's most innovative and brilliant jurists. The three were so often in dissent to the conservative majority they were nicknamed "The Three Musketeers."
The law, Stone said, must never "become the monopoly of any social or economic class." He condemned his fellow conservatives for reading their economic preferences into the law and "into the Constitution as well." By doing so, he said, they "placed in jeopardy a great and useful institution of government."
Stone embraced the doctrine of "preferred freedoms"--the position that First Amendment freedoms are preeminent in the hierarchy of constitutional rights, permitting justices to override any legislation that curbs these freedoms. This became the basis for court decisions to overturn state laws that persecuted and silenced African-Americans, radicals--including communists, anarchists and socialists--and labor and religious activists.
Stone, as dean of Columbia Law School before being named U.S. attorney general in 1924 and joining the Supreme Court the year after that, said the school's mission was "devoted to teaching its students how to live rather than how to make a living." He denounced the Palmer Raids and mass deportations of radicals that ended in 1920. He supported five Socialist members of the New York State Assembly who were stripped of their elected seats by their legislative colleagues in 1920 because of their political views. And he said that everyone, including aliens--meaning those who were not citizens but who lived in the United States--deserved due process.
"[A]ny system which confers upon administrative officers power to restrain the liberty of individuals, without safeguards substantially like those which exist in criminal cases and without adequate authority for judicial review of the action of such administrative officers, will result in abuse of power and in intolerable injustice and cruelty to individuals," he wrote of laws that deprived aliens of constitutional rights.
As attorney general he weeded out corrupt officials and zealously enforced antitrust laws, swiftly making enemies of many leading industrialists, including Andrew Mellon. He also, ominously, appointed J. Edgar Hoover to run the FBI. His aggressive antitrust campaigns led to calls by the business community for his removal as attorney general, and he was elevated to the Supreme Court in 1925, a move that, as the New York Globe and Commercial Advertiser newspaper observed, "protected business from disturbing litigation or the threat of such litigation [and] has saved the [Coolidge] administration from the charge that it has betrayed business. ..."
The 1920s were, as Alpheus Thomas Mason wrote in his 1956 biography, "Harlan Fiske Stone: Pillar of the Law," "a decade pre-eminent for the exploitative large-scale business; its leaders preached the 'Gospel of Goods.' 'Canonization of the salesman' was seen 'as the brightest hope of America.' The absorbing ambition was to make two dollars grow where one had grown before, to engineer, as utilities magnate Samuel Insull put it, 'all I could out of a dollar'--that is, get something for nothing."
Organized labor, which before World War I had been a potent social and political force, had been crushed through government repression, including the use of the Espionage and Sedition acts. Government regulations and controls had been weakened or abolished. It was a time when, as Sinclair Lewis said of Babbittry--referring to the philistine behavior of the lead character in his 1922 novel "Babbitt," about the vacuity of American culture--the goal in life was to be "rich, fat, arrogant, and superior." Inequality had reached appalling levels, with 60 percent of American families existing barely above subsistence level by the time of the 1929 crash. The American god was profit. Those not blessed to be rich and powerful were sacrificed on the altar of the marketplace.
The New Hampshire-born Stone, grounded in rural New England conservatism and Yankee thrift, was appalled by the orgy of greed and inequality engineered by his fellow elites. He denounced a hedonistic culture dominated by unethical oligarchs and corporations very similar to those that exist today.
"Wealth, power, the struggle for ephemeral social and political prestige, which so absorb our attention and energy, are but the passing phase of every age; ninety-day wonders which pass from man's recollection almost before the actors who have striven from them have passed from the stage," he wrote. "What is significant in the record of man's development is none of these. It is rather those forces in society and the lives of those individuals, who have, in each generation, added something to man's intellectual and moral attainment, that lay hold on the imagination and compel admiration and reverence in each succeeding generation."
Wall Street's crash in 1929 and the widespread suffering caused by the Depression confirmed Stone's fears about unfettered capitalism. Victorian-era writer Herbert Spencer, who coined the term "survival of the fittest" and whose libertarian philosophy was widely embraced in the 1920s, argued that liberty was measured by the "relative paucity of restraint" that government places on the individual. Stone saw this belief, replicated in the ideology of neoliberalism, as a recipe for corporate oppression and exploitation.
If the law remained trapped in the agrarian, white male, slave-holding society in which the authors of the Constitution lived, if it was used to exclusively defend "individualism," there would be no legal mechanisms to halt the abuse of corporate power. The rise of modern markets, industrialization, technology, imperial expansion and global capitalism necessitated a legal system that understood and responded to modernity. Stone bitterly attacked the concept of natural law and natural rights, used to justify the greed of the ruling elites by attempting to place economic transactions beyond the scope of the courts. Laissez faire economics was not, he said, a harbinger of progress. The purpose of the law was not to maximize corporate profit. In Stone's reasoning, a clash between the courts and the lords of commerce was inevitable.
Stone excoriated the legal profession for its failure to curb the avarice of the "giant economic forces which our industrial and financial world have created." Lawyers, he went on, were not supposed to be guardians of corporate power. He asked why "a bar which has done so much to develop and refine the technique of business organization, to provide skillfully devised methods for financing industry, which has guided a world-wide commercial expansion, has done relatively so little to remedy the evils of the investment market; so little to adapt the fiduciary principle of nineteenth-century equity to twentieth-century business practices; so little to improve the functioning of the administrative mechanisms which modern government sets up to prevent abuses; so little to make law more readily available as an instrument of justice to the common man." The law, he said, was about "the advancement of the public interest." He castigated the educated elites, especially lawyers and judges, who used their skills to become "the obsequious servant of business" and in the process were "tainted with the morals and manners of the marketplace in its most anti-social manifestations." And he warned law schools that their exclusive focus on "proficiency" overlooked "the grave danger to the public if this proficiency be directed wholly to private ends without thought of the social consequences." He lambasted "the cramped mind of the clever lawyer, for whom intellectual dignity and freedom had been forbidden by the interests which he served." He called the legal profession's service to corporation power a "sad spectacle" and attorneys who sold their souls to corporations "lawyer criminals."
He was viciously attacked. The Wall Street lawyer William D. Guthrie responded in the Fordham Law Review, warning readers that Stone was peddling "subversive doctrines" championed by "false prophets" that had as their goal "national socialism, the repudiation of standards and obligation heretofore upheld, the leveling of classes, the destruction of property, and the overthrow of our federal system designed to be composed of sovereign and indestructible states."
But Stone understood a seminal fact that eludes our day's Federalist Society and the Republican and Democratic party leaderships: Corporations cannot be trusted with social and political power. Stone knew that the law must be a barrier to the insatiable corporate lust for profit. If the law failed in this task, then corporate despotism was certain.
He wrote of the excesses of capitalism that led to the Depression:
"I venture to assert that when the history of the financial era which has just drawn to a close comes to be written, most of its mistakes and its major faults will be ascribed to the failure to observe the fiduciary principle, the precept as old as the holy writ, that "a man cannot serve two masters." More than a century ago equity gave a hospitable reception to that principle, and the common law was not slow to follow in giving it recognition. No thinking man can believe that an economy built upon a business foundation can long endure without some loyalty to that principle. The separation of ownership from management, the development of the corporate structure so as to vest in small groups control over the resources of great numbers of small and uniformed investors, make imperative a fresh and active devotion to that principle if the modern world of business is to perform its proper function. Yet those who serve nominally as trustees, but relieved, by clever legal devices, from the obligation to protect those whose interests they purport to represent, corporate officers and directors who award themselves huge bonuses from corporate funds without the assent or even the knowledge of their stockholders, reorganization committees created to serve interests other than those whose securities they control, financial institutions which, in the infinite variety of their operations, consider only last, if at all, the interests of those whose funds they command, suggest how far we have ignored the necessary implications of that principle. The loss and suffering inflicted on individuals, the harm done to a social order founded upon business and dependent upon its integrity, are incalculable."
The corporate coup d'etat Stone attempted to thwart is complete. His worst fears are our nightmare.
Stone had his flaws. After he refused to grant a stay of execution for Nicola Sacco and Bartolomeo Vanzetti, the two anarchists were hanged in August 1927. (A courtier took a fishing boat to retrieve the fateful decision that Stone made while he was at his vacation home here on Isle au Haut. He probably signed off on their execution orders on the table where I sit each morning.) He sometimes ruled against the rights of unions. He endorsed the internment of Japanese-American citizens during World War II. He was not sympathetic to conscientious objectors except on religious grounds. He did not always protect the constitutional rights of communists. He could use the law to curb what he saw as Franklin Roosevelt's consolidation of power within the executive branch.
But Stone had the integrity and courage to throw bombs at the establishment. He attacked, for example, the Nuremberg Trials of the Nazi leadership after World War II, calling it a "high-grade lynching party." "I don't mind what he [the chief Nuremberg prosecutor, Supreme Court Justice Robert H. Jackson] does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law," he wrote. "This is a little too sanctimonious a fraud to meet my old-fashioned ideas." He noted acidly that the Nuremberg Trials were being used to justify the proposition that "the leaders of the vanquished are to be executed by the victors."
Stone spent his summers in a gray-shingled cottage with blue-green trim overlooking a small island harbor. He and his wife built the cottage, which still stands, in 1916. He tramped about the island in old clothes. One day at the dock a woman mistook the Supreme Court justice for a porter. She asked him to carry her bags. Stone, a burly man who had played football in college, lifted the suitcases and followed her without a word.
Stone did not possess the Emersonian brilliance and rhetorical flourishes of a Holmes or the trenchant social analysis of a Brandeis, but he was an astute legal scholar. There would be no place for him in today's Republican or Democratic parties or judiciary, seized by the corporate interests he fought. The Federalist Society, along with corporate lobbyists, would have mounted a fierce campaign to block him from becoming attorney general and a Supreme Court justice. His iron fidelity to the rule of law would have seen him, like Ralph Nader, tossed into the political and judicial wilderness.
Stone opposed socialism because, as he told his friend Harold Laski, the British political philosopher and socialist, he believed the judicial system could be reformed and empowered to protect the public from the tyranny of corporate elites. If the judicial system failed in its task to safeguard democracy, he conceded to Laski, socialism was the only alternative.
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