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)