Today in Supreme Court History: October 14, 1911

10/14/1911: Justice John Marshall Harlan I dies.

Justice John Marshall Harlan I

Comments

[F.D. Wolf]

Harlan was, needless to say, one of the greatest justices to ever sit on the Court. It would have seemed unlikely that a man named after John Marshall would live up to the legacy of his namesake, but Harlan did. The December 1911 edition of the Virginia Law Register contained an excellent eight-page memorial to Harlan that I would highly recommend for a contemporary view of Harlan.

It is hard at this time to make a fair estimate of his greatness as a judge. His opinions are strong, well written and leave very little doubt as to what he meant. He will probably go down in legal history as the "Great Dissenter"- not so much on account of the number of his dissenting opinions as on account of the importance of the cases in which he differed with the majority of the Court. When he dissented, he never hesitated to criticise the opinion of the Court. There was often a touch of indignation in the language he used, and almost an inability to understand how his colleagues could have differed from him, could be seen in each sentence. He had absolute confidence in the correctness of his own opinion and with his great power of judgment and vigor of expression made a wonderfully strong presentation of his view of any case. He was exceedingly consistent and there can be found very little change, in his views of the principles of interpretation and construction of the Constitution, in his opinions, running as they did through so many years. The old Whig inheritance from his birth, environment and early association, leavened the whole lump of his being and was apparent whenever a Constitutional question was involved. He called himself a strict constructionist of the Constitution, but as a witty Virginian once said of a great Whig politician, "It might have been a Whig air he played, but there were a great many variations." And so, Justice Harlan's "strict construction" would have been thought very loose in the good 'old days "befo' de wah".

R. T. W. Duke, Jr., John Marshall Harlan, 17 Va. L. Reg. 497, 503-04 (1911). https://www.jstor.org/stable/1105239?seq=1

[The Margrave of Azilia]

Lots of praise for Harlan in the article - I checked the article because I wondered what the *Virginia* Law Register said about Harlan's dissent in Plessy. They had an anecdote where Harlan allegedly had no answer to a pro-segregation argument in that case. Signalling that in this instance they thought "The Great Dissenter" had dissented wrongly.

But a law journal in a Jim Crow state at the time *would* say that.

[JoeFromtheBronx]

aka the so-called "rights of the negro"

[JoeFromtheBronx]

Harlan supported applying the Bill of Rights to the states. See, e.g., his dissent in Hurtado v. California (grand jury).

Justice Gorsuch in today's order list notes his support of incorporating the 7th Amendment.

https://www.supremecourt.gov/orders/courtorders/101425zor_8m58.pdf

If "those who founded our Nation considered the right to trial by jury a fundamental part of their birthright," the grand jury would logically be part of it. Someone recently noted that every state has a grand jury, though they use it in various ways.

The Third Amendment is also something that the founders were concerned about & its principles still hold.

Harlan's grandson -- a great justice in his own right -- did not support full incorporation.

One more thing, ma'am, one more thing. Justice Harlan's dissent in Plessy v. Ferguson is greatly honored. Perhaps, his dissent in the Civil Rights Cases (supposedly written using Taney's inkwell) should also get more attention.

https://the-artifice.com/an-inkwells-symbolic-influence-on-the-civil-rights-decisions-of-john-marshall-harlan/

[Krayt]

From his law review article:

In essence, the Doctrine required “that broadcasters, while permitted to editorialize

I don't like how this starts out. Does the government (or anyone else) think broadcasters are permitted to editorialize? This is doubly odd as the larger "therefore" is government requiring alternative viewpoints in editorializing.

How magnanimous of those power mongers, to permit us to comment on them, for the greater good of The People, as they see it. Did the First Amendment inform them that value judgement was already created by The People, for themselves, to protect themselves against tyrants, who have a piss poor record of permitting editorializing about themselves?

I recall the Egyptian military some decades back outlawing satellite dishes, with a statement unfettered access to CNN without the government to, in current-speak, contextualize it, was not in the interests of The People.

[The Margrave of Azilia]

[comment relocated to the appropriate thread]