Book Review

John Marshall Harlan, like a majority of the justices who had served on the U.S. Supreme Court, had been all but forgotten by legal historians until the Warren Court handed down its landmark decision in Brown v. Board of Education (1954), and suddenly everyone remembered that Harlan had dissented in Plessy v. Ferguson (1896) as well as in several other cases that had helped to establish the doctrine of legalized segregation. "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." It turned out that Harlan had also dissented in that great bugaboo of substantive due process, Lochner v. New York (1905), although about all most people recall from the four dissenting votes is Holmes's famous cry that "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statistics." In fact, as scholars and biographers began to explore Harlan's nearly thirty-four years on the bench, he emerged from obscurity to be hailed as a "great" judge, a precursor of the noble rights movement of the latter twentieth century.	1
But scholars had some problems with Harlan. While there were some impressive dissents, there were also some idiosyncratic decisions. Unlike a Black or a Frankfurter, Harlan did not leave any legacy of clearly identifiable jurisprudential thought. In fact, the dominant legal patterns of the late nineteenth century owed little to him, and he was often lost in the shadow of Stephen Field or later Holmes. Beyond that, Richard Posner and others have questioned the whole enterprise of judicial biography, dismissing it as practically useless for understanding judicial opinions. One hopes that Judge Posner will read Linda Przybyszewski's book, for rarely have we encountered such a nuanced interpretation of a judicial life and the forces that made it.	2
Przybyszewski has little use for the "greatness" issue and in fact does not even bother arguing whether the elder Harlan was or was not a great judge. Rather, she is interested in the sources of his judicial philosophy, what elements of his life led him to the jurisprudence that he followed more or less consistently for more than three decades. She has found some new materials that she brilliantly exploits, and while not everyone may agree with her interpretation, I doubt if one will be able to write about Harlan in the future without either accepting her arguments or undertaking to refute them. The two major new materials that have contributed so much to this work are a memoir written by Harlan's widow Malvina (which Przybyszewski has edited and which appeared in full in the April 2001 issue of the Journal of Supreme Court History) and a set of verbatim notes, taken down in shorthand and then transcribed, by two students in a course in constitutional law Harlan taught in 1897–98. A third and somewhat lesser find is a list of his opinions that Harlan drew up in 1910 that he wanted published together in a single volume, clearly the opinions he considered the most important in his career.	3
From these materials, as well as from the corpus of his opinions and private papers, Przybyszewski puts forward the following thesis: That relatively early on in his life, Harlan developed a set of values that would stand him in good stead throughout his life, and from which he rarely departed. First was the sense of paternalism; whites wielded benevolent power over blacks, and white men did the same for white women. When the Civil War destroyed slavery, Harlan had to choose between white supremacy and a paternalistic forbearance from the abuse of power, and he chose the latter. He did not abandon the idea of racial differences inherent in paternalism, but forbearance of abusive power required the legal equality of the races.	4
Similarly, Harlan had a strong religious faith, and if he did not go so far (at least openly) as Justice Brewer in declaring the United States to be a Christian country, he nonetheless believed that Christian orthodoxy was the rock upon which the Constitution rested. The third aspect of Harlan's faith involved constitutional nationalism, the notion that a principle aim of the Framers had been to weld the nation together, and that therefore the constitutional law had to be the same for all people at all times. This led him to embrace what has since become known as legal formalism, and he no more questioned its tenets than he did his Christian faith or his views on race and manhood.	5
Przybyszewski weaves her story back and forth between explaining what she considers the three fundamental pillars of Harlan's intellectual makeup and how these expressed themselves in his various opinions. She acknowledges that while these tenets led to consistency in Harlan's opinions, they also mitigate against evaluating him as a "great" judge. All three characteristics--paternalism, religion, and formalism--served as limiting features that Harlan never went beyond, and, it should be added, that he would never have wanted to do so. For those of us who have been raised to question everything, to be skeptical about law and judges, indeed about society and religion as well, it is somewhat startling to find a man who early in his life adopted a particular set of values and never wavered from them, and apparently never questioned their truth or felicity. Moreover, all of these traits, at least as Przybyszewski describes them, are very much of the nineteenth century. That is why, perhaps, there is so little in Harlan's opinions--other than those on race--that we find applicable today.	6
Was Harlan a "great" judge? Probably not, according to the various standards that scholars use to measure such a term, and I think Przybyszewski is wise to avoid trying to answer that question. Her goal, and one that is carried out brilliantly, is to find the sources of John Marshall Harlan's philosophy, not just of the law but of life, and this she does brilliantly. While it is not a biography in the conventional sense--there are large parts of his life that are either little discussed or ignored--it is clearly a book about his life that all judicial scholars will have to take note of in the future.	7
Melvin I. Urofsky Virginia Commonwealth University

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