John Marshall Harlan: Great Dissenter of the Warren Court

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When David Souter was nominated by President Bush to the Supreme Court, he cited John Marshall Harlan as his model. It was an interesting choice. Admired by conservatives and deeply respected by his liberal brethren, Harlan was a man, as Justice William Brennan lamented, whose "massive scholarship" has never been fully recognized. In addition, he was the second Harlan to sit on the Court, following his grandfather—also named John Marshall Harlan. But while his grandfather was an outspoken supporter of reconstruction on a conservative court, the younger Harlan emerged as a critic of the Warren Court's liberal expansion of civil liberties.
Now, in the first biography of this important but neglected jurist, Tinsley Yarbrough provides a detailed account of Harlan's life, from his privileged childhood to his retirement and death. Yarbrough examines the forces and events which shaped the Justice's jurisprudence—his early life and often complex family relationships, education at Princeton and Oxford, his work as a prosecutor during Prohibition, Republican Party activities, wartime service in the Army Air Force, and years as one of the nation's preeminent corporate lawyers (a career culminating in his defense of the du Pont brothers in the massive DuPont-GM antitrust suit). The book focuses, however, on Harlan's years on the high bench. Yarbrough weaves together discussions of the Justice's relations with his brethren, clerks, and staff, an examination of Harlan's role in the decision-making process on the Court, and an analysis of his jurisprudence. The Justice's approach to constitutional interpretation exalted precedent, deference to governmental power, and narrow decisions closely tied to case facts; but he also accepted an evolving, creative model of constitutional construction which permitted expansive readings of constitutional rights. Yarbrough's details Harlan's close relationship with Justice Frankfurter, showing how—despite their friendship and alliance—Harlan strongly marked out his own position, both personally and judicially, on the Warren and Burger courts. And he examines the substance and significance of his dissents in such famous cases as Miranda and the Pentagon Papers.
Intensively researched, smoothly written, and incisively argued, Yarbrough's biography offers an absorbing account of the life and career of a great dissenter, hailed by admirers as a "lawyer's lawyer" and a "judge's judge." Coming at a time when the high court has begun to adopt many of Harlan's principles, this account provides an essential perspective on the Court, civil liberties, and a pivotal figure in the history of both.

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Editorial Reviews

David N. Atkinson
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."
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Product Details

  • ISBN-13: 9780195060904
  • Publisher: Oxford University Press, USA
  • Publication date: 3/28/1992
  • Pages: 432
  • Sales rank: 495,931
  • Lexile: 1640L (what's this?)
  • Product dimensions: 6.44 (w) x 9.56 (h) x 1.41 (d)

Meet the Author

IAbout the Author:
Tinsley E. Yarbrough is Professor of Political Science at East Carolina University, and is the author of such books as A Passion for Justice: J. Waties Waring and Civil Rights, Mr. Justice Black and his Critics, and the award-winning Judge Frank Johnson and Human Rights in Alabama.

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Table of Contents

1. Buckner's "Boy Scout" 3
2. Lawyer's Lawyer 33
3. The Appointments 71
4. The Justice and Company 115
5. The Early Battles 149
6. The First Freedoms 189
7. The Second Reconstruction 233
8. Incorporation and Beyond 271
9. Final Struggles 317
Epilogue: Judge's Judge 337
Notes 345
Bibliographical Note 381
Index 385
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