John Marshall Harlan and the Warren Court

Abstract

John Marshall Harlan and the Warren Court Norman Dorsen Editor’s Note: .4 version ofthis paper was pre­ sented to a conference on the Warren Court at Georgetown Law School in January 1990 and to a conference on Justice Harlan atNew YorkLaw School in April 1991. Justice Harlan was an indispensable com­ ponent of the Warren Court. This is true not only, as a wiseacre might say, because losers are needed if there are to be winners, but because he provided a form of resistance to the domi­ nant motifs ofthe Court thatwas intelligent, de­ termined, professionally skillful, and above all principled. In a sense he defined the Court by his dissents. For this performance over 16 years Harlan received extraordinary praise. Earl Warren himself said, “Justice Harlan will al­ ways be remembered as a true scholar, a tal­ ented lawyer, a generous human being, and a beloved colleague by all who were privileged to sit with him.”1 Judge Henry Friendly, who first worked with Harlan as a young lawyer in the early 1930s, boldly asserted, “there has never been a Justice ofthe Supreme Court who has so consistently maintained a high quality of per­ formance or, despite differences in views, has enjoyed such nearly uniform respect from his colleagues, the inferior bench, the bar, and the academy.”2There are many similar accolades.3 I shall in this paper indicate the nature and extent ofHarlan’sviews as a counterpoint to the Warren Court majority. But I shall also suggest that it would be a mistake to conceive ofHarlan solely in this light, as an inveterate reactionary seekingto forestall the brave newworld that his brethren sought to welcome or even to create. To a surprisingdegree, Harlan concurred in the liberal activism of the Warren Court, picking hisspots carefullyand aboveall seeking(though not always successfully) to be true to his core values offederalism and a limitedjudicial func­ tion. What emerges, in sum, is not a right-wing Justice as he is sometimes conceived, but rather someone much closer to the center, a moderate figure avoiding the extremes. I Initially, I shall present Harlan the dissenter from the principal themes oftheWarren Court. Perhaps the most central ofthese is Equality, an ideathat “[ojnce loosed...is not easily cabined,” as Archibald Cox said in his valuable book on the Warren Court.4 Harlan vigorously opposed egalitarian rulings of many kinds. He was most In assessingJohn Marshall Harlan’s place on theWarren Court, the author makes the case that although he was generally conservative, Harlan concurred in a surprising number of the Court’s liberal opinions. HARLAN AND WARREN COURT 51 vehement in condemning the reapportionment decisions,fiislBakerv. Can5 inwhichtheCourt acknowledgedfederaljurisdictiontodecide the issue whether state legislative districts were malapportioned, then Reynolds v. Sims6 in which the Court established the one personone vote rule, and then the many sequels to theserulings.7Harlanneverbecame reconciled to what he regarded as a wholly unjustified en­ croachment into the political realm, saying in Reynoldsthat “[i]t is difficult toimagine amore intolerable and inappropriate interference by the judiciary with the independent legislatures of the States.”8 Closely related to the apportionment cases are those dealing with the right to vote. Here, too, he dissented, from the ruling that invali­ dated Virginia’s poll tax, from a decision that opened school board elections to a man who was neither a parent nor a property-holder in the district, and from the decision upholding Congress’s power to extend the franchise to 18 year olds.9 The poll tax case illustrates an aspect ofthe Court’s egalitarianism to which Harlan espe­ cially objected, its acceptance of the idea that government has an obligation to eliminate economic inequalities as awayto permit every­ one to exercise human rights. The leading case was Griffin v. Illinois16 in which a sharply di­ videdCourt heldthatwhereastenographictrial transcript isneeded for appellatereview, astate violates the Fourteenth Amendment by refus­ ingto provide thetranscript to animpoverished defendant who alleges that reversible errors occurred at his trial. Harlan’s dissent main­ tained that “[a]ll that Illinois has done is to fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action.”11 He later dissented fromDouglas...