A Judicial Physicist

...he was a bad "security risk...

...Butler, as if it were a legal principle...

...This is not to say that Mason is uncritical...

...The white primary case, he urged Stone, should not be handled by a Jewish justice, who had from a Southern vantage point the additional liabilities of being an intellectual and a New Englander, but by a Justice from the South...

...From the parochial viewpoint of a student of American constitutional law and judicial politics, Mason's book is a gold-mine...

...This problem is itself an outgrowth of Stone's character and personality...

...If the justices should ever confine their interrelations to full-dress memoranda, much of the fluidity will be eliminated from the system, and it is this very fluidity that has supplied dynamism to the judicial process...

...In conclusion, Mason has written a superb biography which both in content and in form reflects the strength and weaknesses of his subject...

...The great weakness in the biography seems to me also to stem from Mason's amazing empathy with his subject: Like Harlan Fiske Stone, the book is nominalistic and theoretically amorphous...

...and, far more than Beveridge, Mason has been enabled to penetrate the inner sanctum and lay open the actual process by which the judges of the high court go about the business of deciding cases...

...Not since Beveridge's Life of Marshall has a work appeared that gives such detailed insight into the life of a judge...

...Stone was hailed as a "liberal" for his scathing dissents, but it is clear that this was a misdesignation...

...Obviously, space here does not permit a lengthy discussion of the contents, but one example stands out as singularly revealing...

...Initially, Chief Justice Stone assigned the writing of the decision to Justice Frankfurter, but immediately thereafter Justice Jackson suggested reassignment of the opinion...

...PROFESSOR MASON'S biography of the late Chief Justice of the United States is an astounding book...

...As he put it: "With all humility I suggest that the Court's decision, bound to arouse bitter resentment, will be much less apt to stir ugly reactions if the news that the white primary is dead is broken to it, if possible, by a Southerner who has been a Democrat and is not a member of one of the minorities which stir prejudices kindred to those against the Negro...

...Holmes once observed that a judge must have in him something of Mephistopheles, and, if anything, Jackson had too much of this ingredient, but in this case one can appreciate the sagacity of his suggestion...

...In the first place, he had no ideological self-image...

...In the second place, once the Roosevelt Court became a reality, Stone began with increasing frequency to throw his weight the other way, against the extremist interpretations of Black, Murphy, Rutledge and Co...

...Indeed, some reviewers have charged him with gross indiscretions, with publishing material that discredit...

...They were creating a yawning abyss between old and new which could lead to institutional destruction, that is, to an abrupt termination of the court's policy by judicial review...

...Yet it seems to me that a broad-gauge criticism of Stone can be made, and the same criteria apply to Mason's biography...

...He talked to newspapermen, former law-school colleagues, old friends and literally anyone else who would listen, and without any visible compunction revealed not only his own views of current judicial problems but also what others thought and what he thought of their views...

...While some accused him of inconsistency, the charge is basically unjust: He was, as ever, engaged in judicial physics, the quest for equilibrium, and threw his weight where it would further this goal...

...he was probably incapable of thinking in such conceptual terms...

...Out of more than 800 pages of close text, Harlan Fiske Stone, the man, the lawyer and the judge, emerges with life-like clarity, but in the same sense that Stone spent a lifetime at the law without really developing a jurisprudence, so Mason has ended his massive treatment without ever casting up the account in large letters...

...Like Stone, it is massive, over 800 pages, and like Stone it has a certain elusive quality, resembling different things to different men...

...But I will assert that on the level of fundamentals, that is, in his appraisal of the role of the Supreme Court and the need for self-restraint, Stone was thinking in political not legal terms...

...The function of the court, and thence of the individual judge, was to maintain an equilibrium between the old and the new, a function which required different allocations of force in different directions depending upon the context...

...Stone at once reassigned the decision to Justice Stanley Reed...

...With respect to this charge...

...On the one hand, I cannot affiliate with the spinsters who have been horrified to see in print that judges negotiate with each other, bicker among themselves, and sometimes arrive at conclusions by less than rational paths...

...It simply doesn't come to a point...

...A court with the political functions of the Supreme Court must proceed by negotiation among its members, by a process of argument and interaction, and a judge may be restrained from entering freely into this vital operation by the knowledge that his casual, horseback judgments, made in the initial stages of discussion, may be immortalized by a brother's posthumous biographer...

...Mason has treated Stone largely as a legal craftsman and has discussed the Justice's famous doctrine of judicial self-restraint, expounded in his dissent in the AAA Case, United States vs...

...he registers disapproval of Stone's objective actions at many points, though he makes clear why he thinks Stone did what he did and never attacks his subjective motivation...

...And while one may argue with Mason's judgment in spelling out certain matters in detail, one cannot deny the remarkable verisimilitude of the biography he has written...

...By almost any standards of laxness...

...Logic offers no solution," Stone was fond of saying, and in this spirit one evaluated the factors involved in a decision and took his stand...

...The Court in 1944 determined to outlaw the "white primary," which was widely employed in the South to disfranchise the Negro...

...Now I would never deny Stone's technical competence as a lawyer's judge—his tax decisions are monuments to precision and legal expertise...

...The shrewd, canny New Hamp-shireman who approached ticklish decisions the way a Yankee storekeeper evaluated customers for credit purposes sits life-like on the bench, but his basic assumptions about judges and the law, inarticulate though they may have been, do not emerge from the material...

...and I think that here I would accept the position of Professor Ed-niond Calm that the upsetting aspect of the full perspective is that it may in the future discourage adequate Revieived by John P. Roche Chairman, Department of Politics, Brandeis University discussion among the judges...

...Thus, in 1935-37 Stone threw his weight against the "Old Guard" on the court not because he disagreed fundamentally with their assessment of the New Deal, but because he realized that their stubborn actions were creating a disastrous disequilibrium...

...I must confess a certain ambivalence...

...Moreover, Beveridge was dealing with ancient times, while Mason has opened the scars on many a contemporary wound...

...Yet, I too am disturbed by the fullness of certain of Mason's revelations...

...the judicial process...

...Self-restraint was not, in other words, a legal canon, but a shrewd assertion of political acumen...