The Judges' Judge

SUPREME COURT

As a young Manhattan lawyer, John Marshall Harlan advised a colleague elated over disproving 21 of 23 assertions made by an opposition claimant to forgo celebration. It would be better, said Harlan, to nail down the discrepancies in the remaining two points. The thoroughness of the lawyer became the hallmark of the Supreme Court Justice. Harlan's death of spinal cancer last week at age 72, following his retirement in September, ended a 16-year career as one of the most notable professional craftsmen ever to serve on the Supreme Court.

Like the grandfather for whom he was named, Harlan was a dissenter, a conservative dedicated to the doctrine of judicial restraint during the Warren Court era of judicial activism.

Nominated to the court by President Eisenhower in 1954, he followed the philosophy of his mentor, Felix Frankfurter, in arguing for a limited judicial role in political and social issues, and the strict separation of state and federal responsibilities. When Frankfurter retired in 1962, Harlan and the late Hugo L. Black remained as the intellectual pillars of the court.

Lucid Scholarship. In the years that followed, Black and Harlan built their philosophies, and influenced their colleagues on the bench, with a series of contrapuntal decisions--respectful, scholarly, and less rigid than critics of either justice usually granted. Harlan's role was that of the professional conscience of the court. In lucid opinions steeped in legal scholarship and devoted to precedent, Harlan paced off the limits of federal jurisdiction in such areas as legislative reapportionment, the right of states to control pornography and impose poll taxes. He spoke out against votes for 18-year-olds, and against decisions that required police to advise suspects of their right to an attorney. In each term between 1963 and 1967, Harlan cast an average of 63 dissenting votes against a majority usually headed by Black.

To Harlan, those rulings he opposed took the court outside its constitutional mandate. In his dissenting opinion in the one-man, one-vote reapportionment case, Harlan set forth his philosophy: "These decisions give support to a current mistaken view that every major social ill in this country can find its cure in some constitutional 'principle' and that this court should 'take the lead' in promoting reform when other branches of government fail to act."

For all his disavowal of liberal activism, Harlan could hardly be classified as a reflex conservative. He consistently joined the majority opinions requiring the dismantling of separate schools and public facilities. His espousal of First Amendment guarantees of free speech set him squarely against some of the Nixon Administration's law-and-order measures. In a case on electronic eavesdropping, he decried the possible loss of "that spontaneity --reflected in frivolous, impetuous, sacrilegious and defiant discourse --that liberates daily life."

Even to his most persistent legal critics Harlan was known as a judge's judge. Notes Harvard Constitutional Law Expert Paul Freund: "His thinking threw light in a very introspective way on the entire process of the judicial function. His decisions, beyond just the vote they represented, were sufficiently philosophical to be of enduring interest. He decided the case before him with that respect for its particulars, its special features, that marks alike the honest artist and the just judge."

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