John Marshall Harlan: Great Dissenter of the Warren Court.

• Author: Cohen, Louis R.

The radiance of a leading lawyer or judge often has a remarkably short half-life. A vivid personality and uncommon skill (or even unusual wisdom) in dealing with problems of his own time may quickly fade in importance and in memory after his death. Thus, Emory Buckner, an early mentor and senior partner of whom Justice John Marshall Harlan spoke almost in awe, is now all but forgotten.(1) Felix Frankfurter, a later Harlan friend and would-be mentor, was an immensely powerful presence to federal lawyers of the World War II generation; today's lawyers and judges, when they think of him, surely often wonder quite what all the fuss was about. I propose to consider whether Justice Harlan himself has a greater claim to immortality.

Very few lawyers or judges can have inspired as much affection among those who knew them as Justice Harlan did. A description by his law clerk Bruce Ackerman begins calmly enough, calling Justice Harlan a man of "great personal charm" who "reached out for human contact with all who crossed his path."(12) But then, remembering the Justice's fortitude in the face of near-blindness, Ackerman throws caution aside, suggesting that to understand Harlan's character one should "reread" Marcus Aurelius' Meditations and then add "a genuine concern with the personal destiny of each human being that had no analogue in classical stoicism."(13) The Justice inspired such hyperbole: I described him to his biographer, in less scholarly terms, as the man I would send to Mars to show the Martians what Earth-people could be like. A calmer judgment is that he was surely the Justice best liked by his colleagues on the Court - even in the years when he was most often in disagreement with the majority and sharply critical of its reasoning.

Justice Harlan is not, however, an obvious candidate for immortality. His opinions have been widely admired for the clarity with which they lay out the facts, the legal issues, and the precedents, but his words rarely grab us by the lapels and shake us. He held strong views on many subjects, but there are few areas in which he shaped our substantive law or the substantive views of any now-vigorous faction. Nor has he yet become one of those judges with the good or bad luck to be described by others with exceptional vividness.(4)

Justice Harlan has also, I regret to say, not been entirely fortunate in his first full-length biographer. Tinsley E. Yarbroughl has labored mightily to collect, examine, set down, and note the sources for the available information about the Justice's life and career at the bar and bench, and his book will be a useful reference work. But Yarbrough did not know the Justice, and he neither captures the personality that a wide circle found so captivating nor helps the reader very much to understand why the Justice held the legal views he did.(6) Yarbrough is also not sufficiently comfortable with the great legal issues that confronted the Warren Court to discuss them in any depth or attempt any very interesting analysis of Harlan's views and role on the Court. Moreover, the book has some lapses of logic and English prose that make it slow reading.(7)

The very title of the book, while perhaps irresistibly tempting because the first Justice Harlan had been called "the great dissenter," is one our...