Vol. 2, No. 5 (May, 1992) pp. 69-71

JOHN MARSHALL HARLAN: GREAT DISSENTER OF THE WARREN COURT by Tinsley E. Yarbrough. Oxford: Oxford University Press, 1992. 395 pp. Cloth $29.95.

Reviewed by David N. Atkinson, Department of Political Science and School of Law. University of Missouri-Kansas City.

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."