The U.S. Supreme Court begins its 2018-19 term in the aftermath of the pitched partisan battle over the nomination of Brett Kavanaugh. Perhaps not in 80 years, since the 1937 fight over Franklin Roosevelt's so-called "court packing plan," has animosity among the three co-equal branches of government reached such heights.
Yet back then, the court regained its equilibrium largely though early judicial leadership on civil rights and FDR's wise unifying selection of a chief justice.
In that Depression era, American race relations were still marked by grotesque terror targeting African-Americans.In April, 1937, a white mob in Duck Hill, Miss., lynched African-Americans Roosevelt Townes and Robert McDaniels. They were chained to trees, blowtorched, shot and set on fire. More than 100 lynchings had occurred in the United States since 1930.
The Townes-McDaniels lynching led to the introduction of federal anti-lynching legislation, precipitating a bitter fight between northern and southern Democrats. Opponents filibustered for six weeks. Supporters finally withdrew the legislation in February 1938.
This post-Civil War violence and intimidation toward African-Americans was abetted by political domination. "White primaries" and the poll tax prevented African-American political participation throughout the South.
But in that year, 1938, of the election of the first African-American woman to a state legislature since Reconstruction, and of African-American boxing great Joe Lewis' dramatic knockout of German fighter Max Schmeling, an associate justice of the Supreme Court looked around the corner of the future of civil rights in America.
Justice Harlan Fiske Stone seemed, on the surface, an unlikely source of a judicial transformation. He was the epitome of the Republican legal establishment: partner at a Manhattan law firm, dean of Columbia Law School, appointed attorney general and then to the Supreme Court by Calvin Coolidge.
Stone believed in judicial restraint. His biographer, Alpheus Thomas Mason, described Stone as a "judge's judge," emphasizing the necessity of keeping courts' function "within proper bounds."
But Stone also possessed "commanding presence" and "sheer force of character." He "grasped social forces more profoundly than other judges," and, Justice William O. Douglas wrote, "his insight and understanding were beyond compare."
It was with this stature that Stone modestly (in a footnote that became famous as "Footnote Four") set the Supreme Court on a more aggressive course in the protection of civil rights.
In the 1938 case United States vs. Carolene Products, Stone wrote that "more searching judicial inquiry" may be necessary in the review of statutes "directed at particular … religious … national or racial minorities … "
Stone explicitly called out "prejudice against discrete and insular minorities" that "curtail(s) the operation of those political processes ordinarily to be relied upon to protect minorities."
Stone wrote to the eminent Judge Irving Lehman the day after the Carolene Products decision was handed down of his concern for the "increasing racial and religious intolerance which seems to bedevil the world."
Thus, 17 years before the Supreme Court would outlaw legal segregation in Brown vs. Board of Education, Stone was suggesting "a special role for the Court as a protector of minorities helpless at the polls in the face of discriminatory or repressive assault."
(Sadly, that role did not become reality in time to prevent the abomination of the Korematsu ruling in 1944, which upheld the internment of Japanese-Americans in the United States — an awful opinion in which by-then Chief Justice Stone joined.)
The Korematsu constitutional calamity — and landmark civil rights triumphs like Brown — lay in the future when Chief Justice Charles Evans Hughes announced his retirement in June 1941.
Roosevelt seized the appointment of a new chief justice as an opportunity to try to "bind up" the Supreme Court and nation's judicial wounds — by elevating Stone to chief justice.
Six months before the United States entered World War II, the nomination was hailed by the Rocky Mountain News as "serving the cause of national unity."
Alpheus Thomas Mason, the Stone biographer, wrote that in response "old, deep wounds seemed to heal as political foes exchanged kind words" and the nomination received "a wave of public approval."
All these years later, such moments of reconciliation seem almost impossible.
The Constitution builds in a healthy tension between the co-equal branches of government. But it is time for all people of foresight — inspired not least by the story of Harlan Fiske Stone — to work together to ease our remarkable nation's current distemper and address its fundamental problems.
Steve Hunegs is the executive director of the Jewish Community Relations Council of Minnesota and the Dakotas.