Judicial Enigma: The First Justice Harlan


In the decades that followed Reconstruction, the Supreme Court struck down civil rights legislation, validated Jim Crow laws, and stopped the government from regulating big business in almost any form. One justice, however, stood against the conservative trend: John Marshall Harlan. His advocacy of a color-blind Constitution in his powerful dissents established a rich legacy that was validated decades later by the Warren Court. But behind the legal opinions, the great dissenter...
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In the decades that followed Reconstruction, the Supreme Court struck down civil rights legislation, validated Jim Crow laws, and stopped the government from regulating big business in almost any form. One justice, however, stood against the conservative trend: John Marshall Harlan. His advocacy of a color-blind Constitution in his powerful dissents established a rich legacy that was validated decades later by the Warren Court. But behind the legal opinions, the great dissenter was a complex, enigmatic, even contradictory man.
In Judicial Enigma, Tinsley E. Yarbrough offers the most complete portrait we have ever had of this critical figure. He follows Harlan from antebellum Kentucky, when he was an outspoken Whig and Unionist, through his exploits as a colonel in the Civil War, to his political career before his appointment to the Court in 1877. Harlan's early life presents a fascinating contrast to his later stands on civil rights. Yarbrough shows, for example, that Harlan maintained a wary relationship with his black half-brother Robert (who rose to wealth during the California gold rush and to influence as a prominent Ohio Republican). The future justice also spouted openly racist language as he campaigned in postwar Kentucky--reflecting views he never entirely discarded. Even in later life, the man who became the Court's greatest moral force was not above using his position to escape his many creditors; he also did nothing to save his alcoholic, opium-addicted brother James from dying in a Kentucky almshouse. Yet moral force he was, and Yarbrough deftly explores his astonishing record as he dissented against a roster of decisions that are now considered a roll-call of error and injustice: Plessy vs. Ferguson (validating Jim Crow laws), Lochner vs. New York (overturning a law limiting working hours), the Sugar Trust Case (gutting the Sherman Antitrust Act), and many more. And yet, even here Harlan remained an enigma; as Yarbrough shows, he sometimes contradicted the same sentiments that have since sanctified his memory.
In biographies of Justice Hugo Black, Judge Frank Johnson, J. Waties Waring, and John Marshall Harlan's grandson, the second Justice Harlan, Yarbrough has shown himself to be a gifted chronicler of the great figures of American law. In this volume, he offers the most insightful account of the man still remembered as the great dissenter.
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Editorial Reviews

Brian McCombie
Yarbrough ("A Passion for Justice: J. Waties Waring and Civil Rights", 1987) tries to understand the conflicting realities of John Marshall Harlan, a Supreme Court justice from 1877 to 1911. On the one hand, Harlan's decisions and dissents would seem to show him as a liberal thinker in a time of extreme conservatism. For example, he argued (unsuccessfully) against cases that upheld legal segregation in the South and that undid much of the Sherman Antitrust Act. History would judge Harlan right in these dissents. However, Harlan's life as a whole presents troubling contradictions. Until his appointment to the Court, Harlan was a known racist, both politically and personally. Indeed, even while a justice, he displayed flashes of racism. His personal life was just as bothersome. Once on the Court, he used his office, on more than one occasion, to put off his creditors. A curious, true story of a man who possessed both a great legal mind and the instincts of a political opportunist.
Harry P. Stumpf
In the throes of the "behavioral revolution" in American political science in the late 1950s and early 1960s debate centered on whether the study of politics was, or could be made, a science in the sense of the physical and biological sciences. Ultimately resolving the question in the affirmative, or mainly so, the discipline tended to shunt history and biography into the background as approaches least likely to yield predictability in the new science of politics. Happily, though, there were leading scholars even in that troubled era wise enough to recognize the need for catholicity in the study of things political, enabling descriptive, biographical, historical and normative modes of inquiry to continue as acceptable if distant country cousins in the post-revolutionary period. Today, diversity characterizes the discipline. Nowhere is this more true than in the subfield we call "public law" or "judicial politics." Shapiro, 1993 And here, in the tradition of some of the outstanding judicial biographers of the past -- Swisher 1935, Mason 1946, 1956, and Fairman 1939, for example -- Professor Tinsley Yarbrough of the political science department of East Carolina University has established himself as a fine craftsman of the art. His biographies of Justices Black 1988 and John Marshall Harlan II 1992 as well as his award-winning work on the life of Judge Frank Johnson 1991 have all been well-received. Now, in his latest effort, his considerable skills are again manifest in this fascinating account of the life, times and jurisprudence of Justice John Marshall Harlan I, whose grandson of the same name, though hardly the same philosophy, also served on the Court in the period 1955-1971. Born June 1, 1833 into a well-established politico-legal family in Kentucky, the future Justice Harlan benefited from the many privileges associated with that status -- undergraduate education at Centre College in Danville; law school comparatively rare at that time at Transylvania College in Lexington, followed by the reading of the law in his father's office; and direct exposure to Whig and Democrat politicians of the day, Henry Clay, his father's close friend, being the most noteworthy. Harlan's life is the near-perfect embodiment of the Schmidhauser 1979 profile of 19th century Supreme Court justices. Frequently charged with inconsistency in both his judicial decisions and his early political leanings hence, the title "Judicial Enigma" Harlan flirted with the Know Nothing movement, and only slowly moved to support of the Union cause, eventually and belatedly embracing the Republican Party. Following his service as a colonel in the Union Army, Harlan established a more or less successful law practice, twice ran unsuccessfully for Governor of Kentucky, and perfectly positioned himself for a Supreme Court nomination by swinging the Kentucky delegation which he headed to Rutherford B. Hayes in the Republican National Convention of 1876. John Marshall Harlan was confirmed Page 240 follows: in his nomination to the Supreme Court by the Senate in a voice vote on November 29, 1877 and was quickly December 10 sworn in as the 45th justice to serve on the Court. In all, he established the impressive record of 850 Court opinions, 27 concurrences, and 127 written dissents 124. Most remarkable about Harlan's long nearly 34 years service on the Court was the progressive, prophetic nature of his decisions, especially surprising in view of his pro-slavery, conservative background. Harlan was among the first, and certainly the most persistent advocates of full and immediate incorporation of the Bill of Rights into the Fourteenth Amendment as applicable to the states HURTADO V. CALIFORNIA, 1884. With Holmes, he was a strong and persuasive dissenter in LOCHNER V. NEW YORK 1908. And his lone dissent in the CIVIL RIGHTS CASES 1883 won him the praise and admiration of no less a personage than Frederick Douglass, who called the dissent a ". . . righteous and heroic stand. . . ." "The marvel is", wrote Douglass, "that born in a slave State, . . . accustomed to see the colored man degraded, oppressed and enslaved, . . . he should find himself possessed of the courage to resist the temptation to go with the multitude." 152 Today, though, Harlan is perhaps best remembered for his dissent in the infamous ruling of PLESSY V. FERGUSON 1896 from which his admonition remains at the center of current debate over national racial policy. . . . [I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color blind, and neither knows nor tolerates classes among its citizens. 159 Professor Yarbrough has presented us with a biography in the very best tradition of our subfield. Well-balanced between on and off-the-court coverage, not weighted down with excessive detail in either sphere, he nonetheless gives us a penetrating analysis of Harlan's life as well as his jurisprudence, his strengths along with his shortcomings. In writing of the major research trends and methodological disputes within the public law-political science subfield, the late C. Herman Pritchett concluded with this: There are both traditionalists and behaviorists who think that the gate is strait and the way narrow into the public law kingdom, but a more sensible text to contemplate is the old Chinese saying,"Let a hundred flowers bloom." 1968: 509 Today, nearly 30 years later, the study of law and courts has richly benefited from Pritchett's sage advice. REFERENCES Fairman, Charles. 1939. MR. JUSTICE MILLER AND THE SUPREME COURT, 1862-1890. New York: Russell & Russell. Mason, Alpheus T. 1946. BRANDEIS, A FREE MAN'S LIFE. New York: Viking. Page 241 follows: __________. 1956. HARLAN FISKE STONE: PILLAR OF THE LAW. New York: Viking. Pritchett, C. Herman. 1968. "Public Law and Judicial Behavior." JOURNAL OF PUBLIC LAW 30:480-509. Schmidhauser, John R. 1979. JUDGES AND JUSTICES: THE FEDERAL APPELLATE JUDICIARY. Boston: Little, Brown. Shapiro, Martin. 1993. "Public Law and Judicial Politics." In POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE II, ed. Ada W. Finifter. Washington: American Political Science Association. Swisher, Carl Brent. 1935. ROGER B. TANEY. New York: Macmillan. Yarbrough, Tinsley E. 1988. MR. JUSTICE BLACK AND HIS CRITICS. Durham: Duke University Press. __________. 1991. JUDGE FRANK JOHNSON AND HUMAN RIGHTS IN ALABAMA. University, Alabama: University of Alabama Press. __________. 1992. JOHN MARSHALL HARLAN: GREAT DISSENTER OF THE WARREN COURT. New York: Oxford University Press. Cases Cited: CIVIL RIGHTS CASES, 109 U.S. 3 1883 HURTADO V. CALIFORNIA, 110 U.S. 516 1884 LOCHNER V. NEW YORK, 198 U.S. 45 1908 PLESSY V. FERGUSON, 163 U.S. 537 1896
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This portraitof the important Supreme Court figure, John Marshall Harlan, examines his powerful advocacy of a color-blind Constitution & dissent against a roster of unjust decisions with other contradictory aspects of his life & career. B&W photos.
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Product Details

  • ISBN-13: 9780195074642
  • Publisher: Oxford University Press, USA
  • Publication date: 6/8/1995
  • Edition description: First Edition
  • Edition number: 1
  • Pages: 280
  • Product dimensions: 6.38 (w) x 9.50 (h) x 0.98 (d)

Meet the Author

About the Author:
Tinsley E. Yarbrough is Professor of Political Science at East Carolina University. His books include John Marshall Harlan: Great Dissenter of the Warren Court, Mr. Justice Black and his Critics, and A Passion for Justice: J. Waties Waring and Civil Rights. He is the winner of the ABA Silver Gavel Award for a biography of Judge Frank Johnson.

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