Abstract
Justice John Marshall Harlan II was the grandson and namesake of a famous Supreme Court justice. His grandfather, the first Justice Harlan, is best remembered for dissenting alone from two of the Court’s most morally retrograde and socially reactionary decisions.1 The second Justice Harlan is often remembered for dissenting from decisions of the Warren Court, which is widely perceived as the most socially progressive Court in US history. Since he dissented from decisions of a liberal Court, and since he was nominated by President Dwight Eisenhower, a Republican, many conclude that the second Justice Harlan was a political and judicial conservative. Those conclusions are not contested in this chapter. But political conservatism and judicial conservatism are not the same thing. A study of the second Justice Harlan’s decisions concerning the right to freedom of speech and expression, when placed in the context of his broader approach to judging, can help us to appreciate the difference between judicial conservatism and political conservatism.
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Notes
See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Random House, 2007), 21
See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–348 (1936) (Brandeis, J., joined by Stone, Roberts, and Cardozo, JJ., concurring). The motivating idea here is that judges should make “an effort to minimize the judicial presence in American public life.” Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, MA: Harvard University Press, 1999), 39.
Alexander Hamilton, “Federalist No. 78”, in Alexander Hamilton, John Jay, and James Madison, The Federalist (Indianapolis, IN: Liberty Fund, 2001), 405.
See, for example, Richard A. Posner, The Federal Courts: Challenge and Reform (Cambridge, MA: Harvard University Press, 1985), 322
See Tinsley E. Yarbrough, John Marshall Harlan: Great Dissenter of the Warren Court (New York: Oxford University Press, 1992)
But not unprecedented. See William S. Carpenter, Judicial Tenure in the United States with Especial Reference to the Tenure of Federal Judges (New Haven, CT: Yale University Press, 1918), 119–123.
See Lewis F. Powell Jr., “What Really Goes On at the Supreme Court?” in David M. O’Brien, ed., Judges on Judging: Views from the Bench, 4th ed. (Washington, DC: CQ Press, 2013), 129–130.
See Lee Epstein and William M. Landes, “Was There Ever Such a Thing as Judicial Self-Restraint?” California Law Review 100 (2012): 571–576.
See Yates v. United States, 354 U.S. 298, 311–312, 319–322, 324–327 (1957); Scales v. United States, 367 U.S. 203, 232–234 (1961). Particularly in light of the Cold War political climate in which the Court was operating at the time, Justice Harlan’s opinion in Yates has been called “a brilliant example of legal craftsmanship and judicial statesmanship on the side of the angels.” Harry Kalven Jr., A Worthy Tradition: Freedom of Speech in America (New York: Harper & Row, 1989), 222.
See William Cohen, “A Look Back at Cohen v. California”, UCLA Law Review 34 (1987): 1
See Aristotle, Politics (C. D. C. Reeve, trans.) (Indianapolis, IN: Hackett Publishing Company, 1998), 1279a-b, 77–78.
James Meredith was the first black person to attend the University of Mississippi. Three years after he graduated, Meredith attempted to walk from Memphis, Tennessee, to Jackson, Mississippi. He began his March against Fear on June 6, 1966. Shortly after beginning his March on June 6, Meredith was shot by a sniper. For a comprehensive account of Meredith’s March, see Aram Goudsouzian, Down to the Crossroads: Civil Rights, Black Power, and the Meredith March Against Fear (New York: Farrar, Straus & Giroux, 2014).
See Thomas I. Emerson, The System of Freedom of Expression (New York: Random House, 1970), 6–9.
And Justice Harlan’s dissenting opinions did influence the development of the law. See, for example, Planned Parenthood v. Casey, 505 U.S. 833, 848–849 (1992); Teague v. Lane, 489 U.S. 288, 303–310 (1989); Griffith v. Kentucky, 479 U.S. 314, 322–323 (1987); Moore v. City of East Cleveland, 431 U.S. 494, 500–506 (1977). See also Martha A. Field, “Justice Harlan’s Legal Process”, New York Law School Law Review 36 (1991): 162.
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© 2015 Helen J. Knowles and Steven B. Lichtman
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Edlin, D.E. (2015). “Another’s Lyric”: John Marshall Harlan II, Judicial Conservatism, and Free Speech. In: Knowles, H.J., Lichtman, S.B. (eds) Judging Free Speech. Palgrave Macmillan, New York. https://doi.org/10.1007/978-1-137-41262-1_5
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DOI: https://doi.org/10.1007/978-1-137-41262-1_5
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