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 uninformed 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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