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John Marshall Harlan: The Last Whig Justice

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Though often a lone dissenter from the prevailing legal thought of his time, the reputation of John Marshall Harlan has enjoyed considerable rehabilitation since his death. Best known for his criticism in the Plessy v. Ferguson case, his opinions in that and other cases have come to be seen by many legal scholars as precursors to the liberal jurisprudence of the twentieth century. Capping this new appreciation of Harlan's work was Loren P. Beth's biography of the Supreme Court justice, which offers an examination of both Harlan's life and his jurisprudence.

Beth divides his analysis into three parts. The first two are biographical and chronological, examining his life both before and on the Court. Much of the information about his life before his selection to the court comes from reminisces written by Harlan and his wife Malvina, and Beth often includes large sections from them in his text. The Harlan that emerges in these pages is an extremely political man, one who was active in the dramatic struggles of mid-19th century politics. Starting as a Whig, he drifted in the unstable Kentucky party political environment before finally becoming a Republican in 1868. Though unsuccessful in two campaigns for the governorship of Kentucky, Harlan's efforts on behalf of the party in his state helped make him a national political figure, leading to his nomination to the Court in 1877.

The second part of the book, which looks at Harlan's family life, his relationships with his justices, and his role in the politics surrounding the Court, serves as a useful bridge to the final section, which addresses his jurisprudence. Here Beth analyzes his decisions by topic, grouping them into categories so as to identify the underlying legal philosophy that collectively they reveal. While these chapters are informative, they do not succeed in Beth's goal, as illustrated by his subtitle, of demonstrating that Harlan's decisions reflected Whig political ideology, nor does the author reconcile the many inconsistencies and contradictions that existed between the Harlan's life and his jurisprudence. This, along with the poor editing (there are numerous minor factual errors throughout the book, particularly regarding dates), make for the book that is a useful introduction to Harlan's life but not the thorough analytical study that the justice deserves.

John Marshall Harlan is an interesting Supreme Court Justice. He was named after the fourth, and arguably greatest, Chief Justice, has been restored by history due to his dissent in Plessy v. Ferguson, and is the grandfather of John Marshall Harlan II who dissented from many Warren court opinions derived from Harlan I dissents. He served on the court under Chief Justices Waite, Fuller, and White, all of which he seemed to have a good relationship with despite the book stating his relationship with White was troubled.

Most of the final section of the book analyze important issues the court wrestled with during Harlan's time, but history has passed many of these by. Plessy v. Ferguson (separate but equal) is a discarded relic, the income tax cases have been superseded by the 16th amendment, many of the criminal procedure cases have been dealt with through incorporation of the Bill of Rights through the 14th amendment during the 20th century, the insular cases are a dead issue, and substantive (really economic) due process is a repudiated court doctrine. Despite these changes, Harlan is worth studying because his dissents in many of these cases guided new laws, constitutional amendments, and later court decisions.

But more interesting in this book is the exploration of the pre-court Harlan and his home state of Kentucky. The book relies a bit too much on direct quotes from Harlan's letters and other writings, but it is still a fascinating portrait of a political nomad who migrated from the Whigs to the Know-Nothings to the Union to the Republican Party as he tried to maintain political influence. He held few elected offices (only local prosecutor and state Attorney General I believe), but was a well known political advocate. The book also explores what it was like for a border state split between loyalty to the union and historical/cultural ties to the south.

Like many Supreme Court Justices of an earlier era, Harlan has something of a bipolar life. Until he served on the court, he was a political animal regularly engaged in electing people and pushing agendas. Life on the court, to which he was appointed by President Hayes who he helped nominate and elect, was no doubt a change of pace. Beth's book will tell you more.