JUDICIAL ENIGMA: THE FIRST JUSTICE HARLAN by Tinsley E. Yarbrough. New York: Oxford University Press, 1995. 320 pp. Cloth $30.

Reviewed by Harry P. Stumpf, Department of Political Science, University of New Mexico.

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

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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.

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__________. 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)