Coolidge’s Surprising Contribution to Progressivism
President Coolidge with Harlan Fiske Stone
By John Hendrickson
The decade of the 1920s is often referred to as the Republican ascendancy. The country returned to conservatism after the progressivism of the early twentieth century. Presidents Warren G. Harding, Calvin Coolidge, and Herbert Hoover dominated this era and tended to govern with a conservative philosophy.
Nevertheless, this decade was also a battleground of political philosophy between conservatives and progressives. Often the role of government and the Constitution was at the center of this war of ideas. This was especially true in the U.S. Supreme Court.
During the late nineteenth century—the age of industrialization and big business—both agrarian populists and progressives accused the Supreme Court of favoring laissez-faire economics and striking down government regulation of the economy. The most famous decision of this era, Lochner v. New York (1905), became the symbol of a Court that stood for the protection of economic liberty, liberty of contract (the right to negotiate in the economy freely), and limits on the role of government. This philosophy is sometimes referred to as legal classicism.
In the twentieth century, this judicial philosophy collided with the progressive view of the Constitution as a “living” document as advocated by President Woodrow Wilson and Justice Louis Brandeis.
Coolidge’s Lone Appointment
This constitutional battle continued in the 1920s. In the words of Brandeis biographer Melvin Urofsky, the Supreme Court was divided between “those struggling to maintain the older jurisprudence and those wanting the Court to promote a law reflective of newer ideas and conditions.” Presidents Harding, Coolidge, and Hoover would have an impact on the future direction of the Court through the justices they appointed.
President Harding appointed four justices during his time in office. Harding nominated former president William Howard Taft to serve as chief justice, and he chose George Sutherland, Pierce Butler, and Edward T. Sanford as associate justices. All were considered conservative in their judicial philosophies and reflected the conservatism of the era. Urofsky noted that “the years of the Taft Court marked the high point of legal classicism.”
When Coolidge became president upon Harding’s death, he had to clean up the administration and restore confidence after the scandals that emerged. Harding’s attorney general, Harry M. Daugherty, was implicated in the Teapot Dome Scandal. To replace Daugherty, Coolidge selected Harlan Fiske Stone, his former Amherst College classmate and a fellow Republican from New England, to serve as attorney general.
For Coolidge, Stone was not just attorney general but also a friend who helped in the Coolidge landslide victory in the 1924 presidential election. In 1925, when Justice Joseph McKenna retired from the Court, Coolidge nominated his friend. Stone had attended Columbia University Law School and, as scholar of the judiciary Henry J. Abraham noted, “taught and practiced law for a quarter of a century, attaining the deanship at Columbia in 1910.”
Chief Justice Taft, who advised both Harding and Coolidge on judicial appointments, approved of Stone’s nomination. Abraham wrote that the “Big Chief” tried to claim credit for the nomination, but “there is little doubt that the decision to send Stone to the Court was Coolidge’s alone.”
Harlan F. Stone was seen as a reliable Republican who carried the favor of Coolidge and another friend, Secretary of Commerce Herbert Hoover. Stone brought credibility because of his handling of the Justice Department in the aftermath of the Harding administration scandals. But Abraham pointed out that Stone’s nomination did create problems with some senators, such as Burton K. Wheeler, a Montana Democrat. Owing to this opposition, Stone became the first Supreme Court nominee to testify before the Senate Judiciary Committee. He won confirmation easily in the Senate.
For more on Coolidge’s progressivism, read George H. Nash’s “The Making of a Conservative”
A Progressive Legacy
As a new justice, Stone was now part of the conservative Taft Court, and he became increasingly uncomfortable with the conservative justices. He started to lean toward the progressives Oliver Wendell Holmes and Louis Brandeis. In response to Stone’s drift, Melvin Urofsky wrote, “Taft complained to his brother that insofar as maintaining the proper conservative jurisprudence, ‘Brandeis is of course hopeless, as Holmes is, and as Stone is.’” Urofsky said that Brandeis, Holmes, and Stone “did not agree on everything, but they did share a belief in what Brandeis had called a ‘living law,’ one attuned to changes taking place in the broader economy and society.”
President Coolidge did not agree with the progressive view of a “living” Constitution that was flexible with the times. And he defended his philosophy until his untimely death in 1933.
But his only nomination to the Supreme Court would become a victory for the progressives during the 1930s and into the 1940s. Stone would later be joined on the Court by three new members nominated by President Hoover. As chief justice, Hoover nominated Charles Evans Hughes, who had an impeccable career in law and public service. Hughes and another Hoover appointee, Owen J. Roberts, became swing votes on the Court. Hoover also nominated Benjamin Cardozo, who was a leading progressive legal scholar.
President Franklin D. Roosevelt’s New Deal ran into trouble as Chief Justice Hughes and the Court’s conservative members joined together to strike down several New Deal measures. Justice Stone found himself as part of the progressive element of the divided Hughes Court. In 1941, President Roosevelt elevated Stone to serve as chief justice.
As Abraham wrote:
Coolidge was to give his country one of its most renowned Justices in the person of his Attorney General—Harlan Fiske Stone—his sole appointee to the Court. Little could the President realize that his New Hampshire–born friend Stone, the presumably safe ex-corporation lawyer with excellent Republican credentials, would within a year join the Holmes and Brandeis dissenting duo, ultimately becoming such a devoted defender of the constitutionality of New Deal legislation.
Coolidge did not live long enough to witness the major constitutional battles being fought over the New Deal, but it is most certain that he would have been discouraged by his friend’s embrace of the New Deal. For Calvin Coolidge, a political and philosophical conservative, Harlan Fiske Stone became his most important legacy to the progressive movement.
John Hendrickson is the policy director for Iowans for Tax Relief Foundation.