The second John Marshall Harlan died in 1971 at the age of 72. This is the first biography of the Justice, and it is a stylish and very
impressive piece of work. The author has used the Harlan papers and personal interviews to bring Harlan's life prior to his judicial
appointments into focus. He then devotes a detailed chapter to the appointment process. Harlan was seated on the Court of
Appeals for the Second Circuit in 1954 and, after less than a year of service, was nominated to the Supreme Court by President
Eisenhower. The confirmation process was tame by current standards but there was nonetheless enough nastiness to disconcert
the usually placid Harlan. There is a chapter designed to lead the reader from the private Harlan and the appointment process into
the discussion of Court doctrine. Emphasis is on the personalities and confrontations which characterized the Court he joined in
1955. This is well done. There are new law clerk interviews that are nicely woven into this chapter and those that follow. The bulk
of the book concentrates on Harlan's constitutional views, utilizing the Harlan Court papers. As has become standard practice in
recent biographies, the focus is on what happened inside the court prior to the decision. The author plays down minutiae and
underscores the major Harlan themes: federalism, separation of powers, precedent, and majoritarian democracy. However, there
are relatively few surprises. Most of Harlan's intraoffice memoranda are predictably civil, unemotional, and even unexceptional.
He just did not engage in the fireworks which so often characterized some of the other offices. There is a remarkably revealing
final chapter, again based on interviews, that reverts back to the private Harlan. Briefly, that is how the author has structured his
material.
An extraordinary amount of information is presented in the first two chapters, where Harlan's formative educational experiences
at Princeton and Oxford are explored, as is his early success with Root, Clark, Buckner, and Howland on Wall Street where,
under the tutelage of Emory Buckner, he developed into one of the country's finest corporate litigators. During World War II, he
returned to England where he headed the Eighth Bomber Command's Operatons Analysis Section. Later, on Wall Street, the long
Du Pont General Motors antitrust suit, in which he represented Du Pont and which preoccupplied Harlan until he was made a
judge, is explained in detail. One might wish for even more information about his extraordinarily successful law practice --
particularly concerning his personal interaction with colleagues and clients -- but such material is understandably not easily
obtained.
Throughout this period, his father, John Maynard Harlan, was a continuing source of concern. A peripatetic lawyer, he was both
improvident and bombastically temperamental, a description no one would ever attribute to his son.
Shortly after Harlan took his seat on the Supreme Court, COOPER V. AARON tested the Court's commitment to integration.
Harlan wrote an unpublished opinion in the case, in which he clearly emphasized the supremacy of national law and the duty of
official to obey that law. He also stressed the need for unanimous adherence to BROWN despite changes in Court membership.
From the beginning, Harlan was a dominant intellectual force on the Court. He strongly believed it was a mistake to develop the
equal protection clause in cases dealing with matters other than racial classifications. Since he was willing to decide cases on the
basis of substantive due process, as in BODDIE V. CONNECTICUT, he saw no reason to develop a body of law that in effect
constituted substantive equal protection.
Although respectful toward precedent, he was prepared to overturn prior cases if petitioners were sufficiently persuasive, as in
GIDEON V. WAINWRIGHT. He was, however, concerned about the tendency of the Court to constitutionalize rules of criminal
procedure. He felt the Court had gone too far, thus discouraging experimentation in the States. His emphatic dissents in MAPP
and MIRANDA illustrate his position.
Justice Harlan was no Felix Frankfurter clone, as his dissent on the subject of privacy in POE V. ULLMAN makes abundantly
clear. Although he was often allied with Justice Frankfurter in the cases, was always cordial toward him, and accommodated him
when possible, the author notes the complexity of this relationship. Their early common link was Emory Buckner, Frankfurter's
law school classmate and Harlan's mentor in their firm; but despite this, when Harlan was asked by his father in 1929 about
whether Frankfurter should be included in some sort of venture, he had replied that the professor was "identified with the radical
point of view." And yet in later years, Harlan seemed to respond to Frankfurter's frequent importunings with seemingly
inexhaustible patience and good humor.
Justice Harlan's tactfulness, his legendary civility and tolerance toward others, all must have had their costs. Half his stomach was
removed because of ulcers in 1961. Beyond that, by the mid-1960s his eyesight had begun to deteriorate. Toward the end of his
tenure he became heavily dependent on his law clerks who were obliged to read to him at length because he had enormous
difficulty reading briefs. Visitors to his chamber in the late 1960s will recall the heavy battery of fluorescent lights he had installed
directly over his desk. He was further distressed when his wife, Ethel, began to fail from Alzheimer's disease. His death from
spinal cancer was protracted, and although he suffered greatly, he was thoroughly and predictably courageous throughout his final
ordeal. He was surrounded at the end by his daughter, his sisters, and his closest friend on the Court, Potter Stewart.
The author's point of view is never intrusive. The book is neither lauditory nor critical. He lets the Justice and those who knew his
life speak for themselves. Perhaps no contemporary Justice has suffered as From The Law and Politics Book Review
Vol. 2, No. 5 (May, 1992) Page 71 much from the editing of his opinions in the casebooks as has John Marshall Harlan. But those
who have read the cases in their entirety know that, even though one might disagree with any given opinion, those often lengthy
opinions are uniformly of high excellence. Issues are precisely stated, arguments are developed at length, and conflicting views are
critically evaluated rather than dismissed . As the author convincingly demonstrates, Justice Harlan was indeed a "judge's judge."
