Book Review Judicial Enigma: the First Justice Harlan, Tinsley E. Yarbrough, New York; Oxford University Press, 280pp. $30
| Pages | 443 |
| Publication year | 2021 |
69 CBJ 443. BOOK REVIEW JUDICIAL ENIGMA: THE FIRST JUSTICE HARLAN, Tinsley E. Yarbrough, New York; Oxford University Press, 280pp. $30
Anyone interested in the life of John Marshall Harlan, Associate justice of the United States Supreme Court from 1877 to 1911, need look no further than this new biography by Tinsley Yarbrough. Professor Yarbrough of East Carolina University has specialized in judicial biographies of Supreme Court justices and federal judges from the Southern States and has won several awards for his efforts.
His task in this volume is to describe a man who served for years on the high court, but was disliked and avoided during his lifetime. justice Holmes called him a man of weak abilities. Years later justice Frankfurter, repeating what Harlan's contemporaries told him, referred to Harlan as "eccentric."
Today, because of the decisions of the last thirty years, the tide has turned, and Harlan has become a trail-blazing hero. His dissents in the Civil Rights Cases, (fn1) and Plessy v. Ferguson, (fn2) and his early support for the incorporation doctrine (fn3) have given rise to the opinion that Harlan was cut from the same mold as any other Lincolnian Republican who fought in the Civil War. As a great dissenter, Harlan has been placed in the Holmes- Brandeis category. (fn4)
Yarbrough demonstrates, in spite of all the hoopla, that Harlan's views before the Civil War hardly matched those of the mainstream Republican Party. Even after appointment to the Court, Harlan remained a Southern Conservative, and cannot be viewed as liberal. For this reason Harlan is a "judicial enigma." (fn5)
Harlan's pre-court life was filled with complexity. Harlan's father was a successful attorney in Kentucky and was also a slave-holder. The father had a child by one of these slaves who, after emancipation, rose to prominence in the black community and later had contact with his half-brother, the justice. Father Harlan was also a devoted union man and best friend of Henry Clay. The justice was named after the man his father most admired-John Marshall.
Harlan himself also favored the national government, but be was no Republican. As a young member of the bar he helped form the American or "Know-nothing" party in Kentucky. After fighting in the Civil...
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