Stone Court (1941–1946)

The Stone Court is often thought to have laid the groundwork in the areas of civil liberties and civil rights for many of the decisions of the Warren Court. Its most significant area of contribution is likely in the realm of individual rights, particularly in cases unrelated to World War II. The individual rights cases of the Stone Court can be divided into those relating to the war and those that were not.

Those religious groups outside the mainstream benefited more from the Court’s decisions in the civil liberties area. More often than not the court ruled in favor of free exercise claims, with West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) as the most prominent of these. In Barnette, the Court overturned a case decided three years earlier and ruled Jehovah Witnesses could not be required to salute the American flag. In 1940, the Court had ruled, on the basis of free exercise grounds, that the statute requiring the flag salute was constitutional, and in Barnette the Court ruled, based on free speech grounds, that students could not be compelled to salute the flag.

Several cases came before the Court involving license taxes (imposed on those distributing or selling) that Witnesses were forced to pay. In Jones v. Opelika, 316 U.S. 584 (1942) and two companion cases, a fiveto- four Court had upheld such a tax because it was imposed on all groups, thus being nondiscriminatory. One year later, and with James Byrnes replacing Justice Wiley Rutledge, the Court heard Jones v. Opelika, 319 U.S. 103 (1943) (known as Jones II) and companion cases and this time struck down the license taxes because religious freedom occupies a ‘‘preferred position.’’ That literature was being sold rather than distributed free did not make the evangelism a commercial enterprise.

In two cases similar to each other—Marsh v. Alabama, 326 U.S. 501 (1946) and Tucker v. Texas, 326 U.S. 517 (1946)—the Court ruled that criminal penalties could not be imposed for distributing religious literature in a company town or a village owned by the federal government providing housing for those employed in the defense industry.

The Stone Court was not as protective of speech/ expression/picketing rights as it was of free exercise. A majority did not view picketing, as such, as a fully protected constitutional right. In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the Court unanimously upheld a New Hampshire statute prohibiting offensive language from being directed at persons in a public place. In this case it affirmed the conviction of a man who created a public disturbance by a confrontational speech that denounced all religions as rackets and, when threatened with arrest by police, called an officer a ‘‘God-damned racketeer’’ as well as a ‘‘damned Fascist.’’ In Bakery and Pastry Drivers Local v. Wohl, 315 U.S. 769 (1942), the Court struck down an injunction issued by a New York State Court preventing picketing at the site of their employment, but in Carpenters’ and Joiners’ Union v. Ritter’s Cafe´, 315 U.S. 722 (1942), it upheld a Texas state court injunction prohibiting union members from picketing at sites other than the site of the labor dispute. In 1945, the Court ruled in Thomas v. Collins, 323 U.S. 516 (1945), that labor-organizing activities could not be subjected to a requirement to obtain a permit to conduct such activities. The Court held that the permit system was an invalid interference with the First Amendment’s free speech and assembly provisions.

In companion cases before the Court in 1941, the Court reversed contempt citations arising from a labor dispute in California. The Court held a Los Angeles Times editorial siding with unions did not present a ‘‘clear and present danger,’’ and a letter to the secretary of labor threatening a strike if a state court decision came down adverse to a union was allowable there being no state law against commenting on pending cases.

The Stone Court had a somewhat mixed record in the area of the rights of the accused. Perhaps best known is Betts v. Brady, 316 U.S. 769 (1942), in which the Court refused to find that the Constitution’s Sixth Amendment guarantee of counsel applied to the state courts. This ruling was overturned by the Warren Court in Gideon v. Wainwright, 372 U.S. 335 (1963). The Court moved toward shortening the period of time prisoners can be held by law enforcement before they appear in court in McNabb v. United States, 318 U.S. 332 (1943). There they set aside convictions obtained with statements made by prisoners who had not been promptly taken before a judge, thus denying them their Sixth Amendment right to a speedy trial.

Perhaps the most successful method of preventing blacks from voting in the first part of the twentieth century was ‘‘white primaries.’’ In Smith v. Allwright, 321 U.S. 649 (1944), the Court declared even though political parties are voluntary organizations, they conduct primary elections under state statutory authority and because of this, denying blacks the right to vote in primaries denied them of rights guaranteed by the Fifteenth Amendment.

Oklahoma’s Criminal Sterilization Act allowed the state to sterilize persons who had been convicted three or more times of certain felonies. The Court held in Skinner v. Oklahoma, 316 U.S. 535 (1942), that because not all felonies were included in this act, there was a violation of the Fourteenth Amendment’s equal protection clause, thus the statute was unconstitutional.

World War II was the catalyst for several cases on the Stone Court’s docket including a couple of the more notorious decisions in the history of the Supreme Court. In 1942, President Franklin D. Roosevelt established a military commission to try eight German saboteurs who had been captured in the United States. While on trial, some of those accused sought leave to file petitions for habeas corpus. The Court—in Ex parte Quirin, 317 U.S. 1 (1942)— rejected the petition and later in its opinion held that the prisoners had a right to judicial review, that a military trial was justified, and that they were not entitled to a grand jury or a trial by jury. The Court again upheld the use of a military commission in In re Yamashita, 327 U.S. 1 (1946). The issue making Yamashita slightly different than Quirin was that in this instance the Court upheld the use of a military commission after the war had ended.

The dark days of the Stone Court and civil liberties came as a result of executive orders issued by the president allowing Japanese Americans, for the sake of national security, to be relocated away from ‘‘military areas,’’ as well as subjected to a curfew. In Hirabayashi v. United States, 320 U.S. 81 (1943) and Korematsu v. United States, 323 U.S. 214 (1944) the Court upheld the constitutionality of these executive orders. In Hirabayashi it dodged the relocation issue and focused on the curfew, which it viewed as a necessary ‘‘protective measure.’’ However, in Korematsu, the Court did not avoid the relocation issue and held that in time of emergency and peril that relocation, although constitutionally suspect, is justified.

Although the Stone Court advanced the causes of several discrete and insular minorities, it will also forever be remembered as the Court that handed down the decisions that adversely affected the condition of Japanese-American citizens.

J. MARK ALCORN

References and Further Reading

• Abraham, Henry. Justices, Presidents, and Senators: A History of the U.S. Supreme Court, Appointments from Washington to Clinton. 4th ed. Lanham, MD: Rowman and Littlefield Publishers, 1999.
• Mason, Alpheus Thomas. Harlan Fiske Stone: Pillar of the Law. New York: Viking Press, 1956.
• Renstrom, Peter G. The Stone Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-CLIO, 2001.