John Marshall Harlan's Unpublished Opinions: Reflections of a Supreme Court at Work

DAVID M O'BRIEN

Tall, courtly, and unfailingly courteous, Justice John Marshall Harlan was "the personification of a New York patrician. He looked and acted like one," recalls Justice Harry Blackmun, "at once soft and polite, but with steel beneath it."[1] A grandson named after the other Justice John Marshall Harlan, who sat on the Court from 1877 to 1911, the second Harlan was born on May 20, 1899. His father was a prominent attorney in Chicago, Illinois. After attending Princeton University as an undergraduate, he spent three years studying jurisprudence as a Rhodes Scholar at Balliol College in Oxford, England, and later earned his law degree at New York Law School in 1924. For a quarter of a century, then, he practiced law in a leading Wall Street law firm, periodically taking leaves to serve as an assistant U.S. attorney, trial prosecutor, and chief counsel for the New York State Crime Commission. In 1954, Republican President Dwight D. Eisenhower appointed him to the Court of Appeals for the Second Circuit. Less than a year later, following the untimely death of Justice Robert H. Jackson, he was elevated to the Supreme Court, where he served until September 1971.[2]

On the Supreme Court, Harlan won respect for more than just his old-world charm and dedication. Justice William J. Brennan, for one, praised his "precisely stated views at conference," "extraordinarily wonderful opinions," and "profound understanding of the Constitution."[3] In the tradition of Justices Oliver Wendell Holmes, Louis D. Brandeis, and Felix Frankfurter, Harlan was a 'judicial conservative" and advocate of 'judicial self-restraint."[4] His devotion to taking each case on its own merits, meticulous attention to details, and vigilant guard against the Court's overreaching when deciding cases, made him a "lawyer's judge."[5] As one of his law clerks, who later served as chairman of the American Civil Liberties Union, Professor Norman Dorsen, observed:

During sixteen-and-one-half Terms (from 1955 to 1971), Harlan wrote his fair share of the Court's opinions. In his time on the Bench, the Court disposed of 39,663 cases, handing down 1,931 full written opinions. Harlan wrote 176 opinions for the Court (or 9.1 percent of the cases disposed by full written opinion). He also published 173 concurrences, 289 dissents, and 82 separate opinions (in which he concurred and dissented in part), as well as individual statements in another 182 cases, along with 47 other opinions written in his capacity as circuit justice for the U.S. Court of Appeals for the Second Circuit. The 902 opinions he published altogether, in which Harlan publicly explained his views and laid out his judicial philosophy, amount to more than 46 percent of the cases disposed by full-written opinion during his tenure.[7] In addition, he left behind some important off-the-bench speeches and articles, providing insight into the value of oral argumentation,[8] the internal operation of the Court as an institution,[9] and his views on the tradition and role of the judiciary in a democratic society.[10]

Justice Harlan’s legacy, of course, lies primarily in his published works. They reveal an evolution in his judicial philosophy and examine some of the great controversies confronting the Court and the country during the Cold War in the late 1950s, throughout the turbulent 1960s, and at the beginning of the 1970s. Among his many notable opinions for the Court are Cohen v. California,[11] reaffirming the principle of First Amendment freedom of speech, and Boddie v. Connecticut,[12] striking down under the Fourteenth Amendment's Due Process Clause Connecticut's law requiring a $60 filing fee for those seeking a divorce. Along with other impressive dissenting opinions are those in Reynolds v. Sims,[13] protesting the Warren Court's "reapportionment revolution," and in the landmark ruling in Miranda v. Arizona,[14] where he sharply criticized the majority's departure from settled constitutional law.

With pride in his work and contributions to the Court, Harlan annually bound in a single volume virtually all of the opinions he produced each term. Included were both copies of his published opinions and many of his published opinion and many of his unpublished opinions.[15] Along with the latter, he attached "A Note on Undelivered Opinions," listing most of the more than 67 cases in which he circulated but withheld publication of an opinion. He also briefly explained the circumstances that led him to abandon opinions. In five instances, Harlan noted, but did not include or discuss, unpublished opinions in cases carried over to another term.[16] With nineteen others, he offered explanations for withholding drafts, yet did not include them in his collection.[17] All told, Harlan's volumes contain 47 unpublished opinions.

Justice Harlan undoubtedly appreciated the historical value of his unpublished opinions in providing "a glimpse of the Supreme Court at work."[18] Neither was he alone in preserving for posterity his unpublished opinions.[19] Justice Frankfurter exhaustively collected his papers and assumed conservatorship of the papers of Justices Brandeis and William Moody. Revering Brandeis as he did, Frankfurter made Brandeis's unpublished opinions available and pressed his former law clerk, Alexander Bickel, into undertaking their publication. Nor was Bickel's volume, The Unpublished Opinions of Mr. Justice Brandeis: The Supreme Court at Work,[20] the last to bring unpublished opinions to light.[21]

Harlan's unpublished opinions are notable in what they reveal about the Justice and the Court at work. Their importance resides less in revelations about controversial rulings than in recording the day-to-day work of the Court, "the fluidity of judicial choice,"[22] and the dynamic process of individual and collective deliberation that takes place prior to the announcement of the Court's rulings. They underscore Harlan's keen attention to every aspect of the Court's work, from decisions to grant petitions for certiorari or summarily dispose of appeals, to tentative votes at conference on the merits of cases, post-conference deliberations over proposed opinions for the Court, and the impact of circulating separate concurring and dissenting opinions. They also register his abiding concern with the facts in each case, whether raising major constitutional questions or the less important (and as he referred to them) "pewee" cases.[23] "For John Harlan," as Chief Justice Warren E. Burger observed, "the 'pewee' case received the same in-depth concentration as every other case."[24] Above all, Harlan's unpublished opinions further attest to his reputation as a highly skilled craftsman of the law.

I .

Deciding what to decide became more time-consuming and crucial during Harlan's tenure on the bench. The annual number of filings swelled from 1,406 to 3,422 cases and the Court’s docket more than doubled, growing from 1,566 cases in 1954 to 4,212 in the 1970 Term.[25] The cornerstone of the Court's operation, in Harlan's words, became "the control it possesses over the amount and character of its business."[26] Of necessity, the overwhelming number of cases were denied. Still, at times Harlan thought cases should have been granted or otherwise disposed of differently than had originally been decided at conference. And in some cases he circulated opinions with the hope of persuading the others to reconsider.

Justice Harlan's bound volumes contain nine of ten unpublished opinions that aimed at winning reconsideration of the majority's initial conference dispositions. Sometimes, they failed to persuade. Myers v. Gockley,[29] was one such case. There, Harlan found the lower court confused about the impact of an earlier per curiam opinion, in Singer v. Meyers,[30] which dealt with the exhaustion of state remedies in federal habeas corpus suits. In his capacity as the circuit justice for the Second Circuit, he had also heard of similar confusion. Harlan thus prepared a brief per curiam summarily deciding Myers and further explaining the holding in Singer. But it met with little enthusiasm in the other chambers and strong opposition from Justice Brennan. Hence, Harlan dropped his suggestion and the Court denied certiorari.

With three others, Harlan succeeded in turning the Court around.[32] United States v. International Boxing Club,[33] had held that professional boxing, unlike professional baseball,[34] was not immune from antitrust laws. On remand and following a trial, the district court concluded that the government had proven an unlawful conspiracy under the Sherman Antitrust Act, and the International Boxing Club (IBC) immediately appealed to the Supreme Court. In response to the IBC's jurisdictional statement, though, the government waived its right to file a motion for affirming the lower court's decree. At conference on January 3, 1958, then, the Court voted to ask the government to file a brief stating its position. But shortly after the government filed its motion to affirm, the Justices split seven-to-two to deny review. Only Frankfurter and Harlan voted to note probable jurisdiction and in protest Harlan circulated a dissenting opinion. Justices Frankfurter and Tom Clark immediately joined him. Later, at the conference on March 14, Brennan changed his vote. With that (the vote of four Justices) probable jurisdiction was noted,[35] and Harlan withdrew his proposed dissent.[36]

In another instance, during the 1958 Term a majority voted to summarily vacate the judgment below in Magenau v. Aetna Freight Lines, Inc.,[37] a diversity of action suit for the wrongful death of a worker. The Court of Appeals for the Third Circuit had reversed a district court on the ground that Pennsylvania's Workmen's Compensation Act provided exclusive remedies. Brennan drafted a brief per curiam opinion, vacating that decision with instructions to remand the case for a new trial. Harlan nonetheless felt strongly that the case should have plenary consideration. Again, he circulated a dissent from the Court's summary disposition. His circulation gathered the votes of Justices Frankfurter, Charles Whittaker, and Potter Stewart. Based on the informal "rule of four"--the practice of granting petitions for certiorari when at least four Justices agree that a case merits full consideration--the case was granted full briefings and oral arguments. The vote on the merits of the case, however, was again to reverse the appellate court. Clark wrote for the majority and Harlan, along with Stewart, joined a dissenting opinion written by Frankfurter.

On yet another occasion, Harlan circulated an opinion for the purpose of making the conference vote more informed. Montana v. Rogers, later delivered as Montana v. Kennedy,[38] involved the deportation of Mauro Montana, an alien, who sought a declaratory judgment to determine his citizenship. The facts in the case were troubling and tragic. Montana's mother was a native-born U.S. citizen who was married in the United States to a citizen of Italy. Montana was born in 1906 in Italy, while his parents were temporarily residing there, and came to the United States that same year with his mother. For 55 years he had lived in America without becoming naturalized.

While not contesting the grounds for his deportation, Montana claimed U.S. citizenship under two congressional statutes, re-enacted in 1874. One statute, originating from legislation passed in 1802, provided that, "children of persons who now are or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States be considered as citizens thereof." But, the other statute, re-enacting a provision passed in 1855, extended citizenship only to children born outside of the United States whose fathers were or may be at the time of their birth, citizens of the United States. Montana's attorney argued that the statutes should be construed in such a way as to extend U.S. citizenship to individuals born outside of the country if either of their parents were U.S. citizens.

Despite the severity of deporting a 55 year-old man, who had continuously resided in the country and whose mother was a U.S. citizen, the administrations of Eisenhower and John F. Kennedy maintained that the statutes should be construed to embrace only children of parents who were both American citizens. The Court of Appeals of the Seventh Circuit upheld the government's position and Montana appealed to the Court. At conference, five Justices, including Harlan, voted to grant Montana's petition for certiorari, but four others voted to deny. In order to facilitate a more informed vote, Frankfurter suggested that Harlan draft a memorandum examining the basis for Montana's claims. He did so and the case was granted plenary consideration. Harlan subsequently turned his memorandum into an opinion announcing the Court's decision, rejecting Montana's claims for U.S. citizenship.

When a majority voted to summarily decide several other cases, Harlan circulated opinions protesting the Court's actions as well.[39] During the 1957 Term, for example, a bare majority voted to reverse three Federal Employer's Liability Act (FELA) cases. Harlan concurred in two but dissented in one with a circulated opinion. Justices Hugo Black and Whittaker joined him, while Clark withdrew his vote to reverse in the case in which Harlan proposed to dissent. Certiorari was thus granted in that case, but later was settled by agreement of the parties.[40] A majority remained for summarily reversing the two cases.[41] Harlan had circulated another memorandum concurring in those two cases, but ultimately decided to withhold it and set forth his views in other FELA cases that term.[42]

II .

Justice Harlan withheld publication of fifteen opinions in cases so sharply dividing the Court that agreement was finally reached to either issue a brief per curiam, affirm the judgment below by an equally divided Court, dismiss a case as improvidently granted, or hear rearguments. In seven of these cases, Harlan preserved his unpublished opinions.[43]

In United States v. American Freightways,[44] for instance, the Court faced the question of whether a "partnership" was a "person" under criminal provisions of the Interstate Commerce Commission. The conference vote was to reverse a district court's dismissal of an indictment against American Freightways, with Douglas, Frankfurter and Burton voting to affirm. Harlan was assigned and later circulated a draft of an opinion for the Court, while Douglas sent around a dissent. In February 1957, however, Justice Stanley Reed retired. Consequently, there were only five votes for reversal. Black, then switched sides at conference. As a result, the Justices were deadlocked, Harlan's opinion was withdrawn, and the lower court's ruling was affirmed by an equally divided Court.

In another case, Kremen v. United States,[45] Harlan suppressed an opinion, stating his views on the scope of the Fourth Amendment, when the majority finally decided to issue a brief per curiam. He did so after Douglas's proposed opinion for the majority invited a vigorous dissent from Clark. On further consideration, the Court decided to hand down a brief per curiam. Harlan prepared the latter, which won approval six-to-two, with Clark and Black noting their dissent.

By contrast, Harlan withdrew his opinion in Hicks v. District of Columbia,[46] when the Court decided, after oral arguments, to dismiss the case as improvidently granted. At conference, the majority voted to reverse a conviction for vagrancy, and Black was assigned to work up an opinion for the Court. When his draft circulated, though, he failed to persuade four others to join his analysis based on the Fourteenth Amendment's Due Process Clause. Douglas and Fortas each responded with concurring opinions, while Harlan and Stewart circulated dissenting opinions. "With the situation still in a state of flux, in part because of the reluctance of certain Justices to join any opinion," Harlan noted in his papers, "and in part because of the lack of a record and the presence of difficult procedural problems, it was agreed to dismiss the writ of certariori as improvidently granted."[47]

Justice Harlan abandoned opinions because the Court decided to hear rearguments in eleven cases.[48] This happened, for one, in Time, Inc. v. Hill,[49] an important First Amendment case. The Hill family had sued Life magazine for a pictorial essay on the opening of a Broadway play, The Desperate Hours, based on the Hills' experiences as hostages of three escaped convicts. But Life's account failed to differentiate between the truth and fiction in the play. The Hills won in New York courts, which held that Life invaded their privacy and portrayed them in a false light. After hearing oral arguments in late April, 1966, the Justices split six-to-three for affirming the courts below, with Black, Douglas, and White voting to reverse.[50] On May 2, Warren gave the opinion assignment to Fortas.[51] Little more than a month passed before he circulated a draft, broadly embracing a constitutional right of privacy. Shortly afterwards, White circulated a dissent. Fortas's draft also prompted Douglas to send out a forceful dissent, arguing that under the First Amendment the press enjoyed complete immunity from such suits. For his part, Harlan prepared, but did not circulate, an opinion reaching the majority's result but on the basis of a "weighing process," ostensibly balancing the Hills' privacy interests against those of the public under the First Amendment.

Fortas reworked his draft in Time, Inc. v. Hill, in light of White's criticisms. Yet by the time it circulated Brennan indicated that he might vote the other way. Given the growing fragmentation of the majority, and the fact that the Court was running up against the end of its Term, Fortas proposed, and the others agreed, to holding the case over for the next term. In the end, Brennan wrote for a bare majority, reversing the judgments of the New York courts.[52] Fortas converted his opinion into a dissent, which Warren and Clark joined. Harlan filed a separate opinion in part concurring and dissenting. While Harlan swung over from his original conference vote and concurred, he disagreed with the majority's "view of the proper standard of liability to be applied on remand," and thought that Brennan went too far in requiring the Hills to prove "reckless or knowing fictionalization," instead of mere negilgence on the part of Life.[53]

Another important case, Shapiro v. Thompson,[54] was similarly carried over for re-argument and resulted in another ruling contrary to that originally voted on at conference. Vivian Thompson had applied for assistance under the Aid to Families with Dependent Children program, two months after moving from Massachusetts to Connecticut. She was nineteen years old, pregnant, and the mother of one child. Thompson was denied assistance because she failed to meet Connecticut's one-year residency requirement for receiving such assistance. She sued Bernard Shapiro, the state's

welfare commissioner, in federal district court. That court held that the residency requirement had a "chilling effect on the right to travel" and denied Thompson's "fundamental right" to travel under the Fourteenth Amendment Equal Protection Clause. Shapiro then appealed to the Supreme Court, which granted review and consolidated the case with others challenging the constitutionality of residency requirements in Pennsylvania and the District of Columbia.

After hearing oral arguments in Shapiro, the Justices split five-to-four for reversing the lower court and upholding the residency requirements. Subsequently, Chief Justice Warren circulated an opinion for the majority. Harlan responded with a concurrence, and Douglas and Fortas circulated dissents. By the end of the Term, though, Stewart was uncertain as to exactly where he stood, leaving the others divided four-to-four. Rather than issue an affirmance by an equally divided Court, the Justices decided to carry the case over to the 1968 Term. After rearguments, by a six-to-three vote the Court affirmed the lower court and struck down the residency requirements. Brennan wrote for the majority, Stewart filed a concurrence. Warren, joined by Black, dissented, as did Harlan in a separate opinion.

Two years later, Fortas's resignation and the battles in the Senate over Republican President Richard Nixon's two initial nominees, Clement F. Haynsworth, Jr. and G. Harrold Carswell, to fill his seat created severe problems. In several cases the Justices were equally divided and eventually decided to carry them over, prompting Harlan to withdraw a number of opinions. In Sanks v. Georgia,[55] for instance, Harlan had circulated a proposed opinion for the Court. It held that Georgia's requirement that defense bonds be posted prior to obtaining judicial review of summary evictions violated the Fourteenth Amendment's Due Process Clause. Three Justices (White, Douglas, and Stewart) immediately joined him. Brennan, along with Marshall, also joined but filed a concurrence, indicating their view that the result might be reached under the Fourteenth Amendment's Equal Protection Clause. Then, the day before the last conference of the term, Black circulated a dissenting opinion. He claimed that Mrs. Sanks, one of the appellants, had available equitable remedies under Georgia's laws, and the other appellant, Mrs. Momman, was not properly before the Court because of a procedural defect in filing her appeal. In the meantime, Georgia had also revised the statutory provisions at dispute in Sanks. Subsequently, at the Justices' Friday conference, Harlan said he would respond to Black's circulation with the addition of footnotes to his opinion. On Saturday, June 27, 1970, he submitted his revised footnotes and indicated continued willingness to have the decision come down on Monday. But, Black, joined by the Chief Justice, argued that the case should be held over for reargument. A majority agreed and Harlan withdrew his opinion. The next Term, Harlan revised his opinion for the Court, holding that developments in the case made it unnecessary to reach the questions presented; Black issued a brief concurrence claiming that the case should have been dismissed as moot.

No less illustrative of the importance of post-conference deliberations is the handling of another appeal, related to Sanks, arriving at the end of the 1968 Term. On June 23,1969, the Court granted Gladys Boddie's motion to proceed in forma pauperis and noted probable jurisdiction in Boddie v. Connecticut.[56] Boddie and several others were appealing a three-judge district court ruling that she was not deprived of her constitutional rights under the Fourteenth Amendment by Connecticut's law requiring a $60 filing file as a precondition for obtaining a divorce.

Following oral arguments in Boddie on December 8, 1969, the Justices voted to reverse even though, as Harlan noted, the majority did not agree on a single theory for reaching that result. Harlan undertook the assignment of drafting a narrow opinion, invalidating the filing-fees requirement, in conjunction with the one he was working on for Sanks. His short opinion relied on a discussion of the Due Process Clause in his draft for Sanks, basically extending it in Boddie. Four Justices signed on to his draft, while Brennan and Marshall joined but with a concurrence, as in Sanks, explaining their view that Boddie could alternatively be disposed under the Equal Protection Clause. Brennan wanted to go much farther than Harlan in holding that indigents are constitutionally guaranteed access to judicial proceedings in all circumstances. By contrast, Black countered in a proposed dissent that no provision in the Fourteenth Amendment guaranteed indigents access to civil proceedings.

At the Court's last scheduled conference for the Term, when Black requested that Sanks be carried over to the next Term, Harlan suggested that Boddie as well be carried over. That was appropriate, he thought, since his opinion in Boddie drew heavily on the analysis in Sanks. Other Justices urged him to revise Boddie so that it could stand independently of Sanks and still come down. But, the next day, at the suggestion of Chief Justice Burger, the conference agreed to carry Boddie over. The following Term, after hearing rearguments on November 17, 1970, Harlan resumed work on his opinion, which was finally announced in early March 1971. In line with his original circulation, Harlan reversed the lower court on due process grounds. Douglas and Brennan filed concurring opinions, while Black stood alone with his dissent.[57]

In three other cases, Harlan withheld opinions because the Justices were so split that, as a compromise, they agreed to avoid addressing divisive issues.[58] In one, the Justices originally decided to reverse an obscenity conviction in Redrup v. New York.[59] The conference vote was to do so on the basis of a scienter requirement for such prosecutions, that is, requiring the government to show that defendants charged with "pandering" and selling allegedly "obscene" materials knew that the materials were indeed obscene. Assigned to prepare the Court's opinion, Fortas wrote a draft that reversed the lower court based on the state's failure to apply a scienter requirement, which he deemed constitutionally required. Harlan promptly circulated a dissenting opinion, while Brennan circulated a long memorandum indicating that he would reach Fortas's result but upon different scienter grounds. As post-conference deliberations continued it became apparent that a majority was unable to agree on a constitutional definition of scienter. In order to dispose of the case, a majority decided to rest its reversal on the obscenity of the materials. The argument was made in a brief per curiam opinion that avoided the scienter issue. Instead of his proposed dissent, Harlan issued a briefer one criticizing the majority's handling of Redrup and other similar cases.[60]

Finally, as previously noted, in the absence of Fortas's successor during the 1969 Term the Justices split four-to-four in a number of cases and were forced to carry them to the next Term. United States v. White, was one of these cases. White came before the Court on a petition for certiorari from the federal government. The lower court had construed the landmark ruling in Katz v. United States,[61] requiring police to obtain search warrants before undertaking wiretaps, to have overruled an earlier decision in On Lee v. United States.[62] On Lee held that third-party electronic monitoring of conversations, with the consent of one of the participants, fell outside of the scope of the Fourth Amendment's warrant requirement. And On Lee in-deed bore on James White's conviction for selling narcotics. White was convicted, in part, on incriminating statements he made to a police informer who carried a concealed radio transmitter that enabled police to record his conversations. At his trial, White's recorded conversations were introduced as evidence against him. His attorney argued that those incriminating conversations should be excluded in light of Katz. On appeal, a federal appellate court agreed with the government in its ruling that Katz had overturned sub silentio On Lee.

Besides the question of whether Katz overturned On Lee, however, from the briefs and oral arguments in White it appeared that the eavesdropping took place prior to the ruling in Katz. And that raised a different and problematic issue. In Desist v. United States,[63] the Court had declined to apply Katz retroactively to cases arising from electronic surveillance that occurred prior to Katz's coming down. Given the circumstances in White's case, Katz was not directly controlling and, Harlan noted, the Justices voted to dismiss White.[64] In line with that vote, Justice White circulated a per curiam opinion. Chief Justice Burger, Stewart, and Brennan signed on. Black circulated an opinion concurring in the result, based on his dissent in Katz, yet reiterating his position that all constitutional rulings ought to be fully retroactive.[65] Harlan and Douglas agreed with Black on the issue of retroactivity and each issued his own dissenting opinion. While not formally joining Harlan's circulation, Marshall sided with him during conference. Thus, the Court was split four-to-four on the merits of the case and four-to-four on the retroactivity question. Consequently, they agreed to hear rearguments. In the end, Chief Justice Burger and Stewart, along with Fortas's successor, Blackmun, joined White's opinion, reversing the lower court and reaffirming On Lee. Black and Brennan concurred in the result, while Douglas, Harlan, and Marshall published separate dissenting opinions.[66]

III .

Opinions announcing the Court's decisions are the most difficult to produce because they represent a collective judgment and must command the support of at least four other Justices. Because all votes are tentative until final opinions come down, Justices often negotiate the language of proposed opinions for the Court. At times they must accept minor editorial and, sometimes, even major substantive changes in order to hold on to an opinion for the Court. Writing the Court's opinion, as Holmes put it, requires that a 'judge can dance the sword dance; that is he can justify an obvious result without stepping on either blade of opposing fallacies."[67] In connection with his writing assignments, Harlan withheld several initial circulations due to various developments during post-conference deliberations that further reveal the dynamics of the Court as a collegial institution.

Two of Harlan's unpublished circulations, actually written prior to opinion assignments, amassed majorities and led to his authorship of the Court's opinion in four cases. United States v. Brosnan and Bank of America v. United States,[68] presented an intercircuit conflict over whether federal tax liens might be extinguished m state court proceedings, regardless of whether the federal government was a party to the proceedings. In Brosnan, the Court of Appeals for the Third Circuit held that the government's lien could be extinguished, despite the absence of the federal government's participation in a state court's proceedings. By contrast, the Ninth Circuit ruled the other way in Bank of America.

Breaking five-to-four at conference, a bare majority voted to affirm Brosnan and to reverse Bank of America. Afterwards, but before drafts circulated, Whittaker abandoned the majority in Brosnan. He did so in a circulation distinguishing the two cases and explaining why he thought both should be reversed. That also meant there no longer was a majority agreeing on a single theory for deciding both cases. At best, only a plurality appeared prepared to join an opinion for the Court. Harlan, who respected the tradition of institutional opinions for the Court's decisions, was disturbed by this development. And in response to Whittaker's memorandum, Harlan circulated one of his own. Besides rebutting the distinction drawn by Whittaker, he pressed his argument for reversing the government's position in both cases. Whittaker, in turn, was moved to reconsider and change his vote in Brosnan back to affirming the lower court. Harlan then assumed the task of writing the Court's opinion on the basis of his unpublished memorandum.

In two other companion cases, T.I.M.E., Inc. v. United States and Davidson Transfer & Storage Co., Inc. v. United States,[69] Harlan's circulated draft also amassed a majority. Both of these cases involved challenges to federal appellate court holdings that shippers of goods by certified common carriers had cause to recover charges paid on the basis of tariffs set by the Interstate Commerce Commission because the tariffs were unreasonably high. Following oral arguments in those cases, the Justices voted six-to-three to reverse, with Black, Douglas, and Clark voting to affirm. The majority appeared to agree that the cases were controlled by an earlier ruling, Montana-Dakota Utilities Co. v. Northwestern Public Service.[70] Chief Justice Warren, however, was somewhat uncertain about his vote, as was Douglas. Both wanted to await a circulation before firmly committing their votes. Given the split and the indecision of two Justices (one in the majority and one in the minority), it was decided that the cases should be handed down with a brief per curiam opinion, disposing of them on the basis of Montana-Dakota.

Shortly after conference, though, Justice Black circulated a lengthy memorandum, arguing that Montana-Dakota was not controlling and that legislative history strongly supported affirming the lower courts. Warren and Whit-taker were won over by that argument and, in contrast to the original vote, there were now five votes for an affirmance. Black's memorandum nevertheless troubled Harlan. From his research, he concluded, like Black, that Montana-Dakota was not controlling. Still, unlike Black, he maintained that the courts below should be reversed. Accordingly, he circulated a memorandum, agreeing with Black's analysis of Montana-Dakota but disagreeing with his result. Once committed to reversing, and then uncommitted by Black's analysis, Whittaker again reverted to reversing the lower court on the basis of Harlan's analysis. Subsequently, Harlan revised his memorandum as the opinion for the Court. Black reworked his draft which, joined by Warren, Douglas, and Clark, was published as a dissent.

Justice Harlan also withheld thirteen opinions drafted in connection with his assignment to prepare an opinion for the Court. He did so for a number of reasons. In one unusual case, Whiteley v. Warden of Wyoming State Penitentiary,[71] Harlan not only undertook to write for the Court but prepared a concurring opinion as well! In accord with the conference vote, he circulated an opinion ordering the release of a state prisoner on federal habeas corpus grounds, because evidence introduced at trial was seized after an arrest that fell short of the requirements of the Fourth Amendment. Harlan also prepared a separate memorandum explaining his continued disagreement with the Court's watershed ruling extending the "exclusionary rule" to the states in Mapp v. Ohio.[72] Unlike Brennan, who once wrote an opinion for the Court and added a separate concurring opinion in the same case, Harlan later suppressed his separate opinion.

In light of criticisms of proposed opinions, Harlan was occasionally persuaded to withhold his initial circulations and to substantially revise his opinion for the Court.[74] In the 1966 Term, for instance, the Court agreed to decide two important Fifth Amendment cases, Marchetti v. United States and Grosso v. United States.[75] Both raised questions about whether requiring gamblers to register with the Internal Revenue Service (IRS), and to pay occupational taxes on their gambling earnings, violated the Fifth Amendment's guarantee against self-incrimination. By registering with the IRS, gamblers became open to state and federal prosecutions for engaging in organized gambling, and thus to incriminate themselves.

Assigned to write the Court's opinion in Marchetti and Grosso, Harlan initially circulated drafts that would have overturned the registration and occupational tax provisions but upheld excise taxes on gamblers. In response, White, Clark, and Warren circulated separate opinions dissenting from Marchetti and concurring in Grosso. By contrast, Douglas, joined by Black, and Brennan, along with Fortas, were willing to join in Marchetti if Harlan revised his opinion. They, alas, sharply disagreed with his opinion for Grosso. Harlan thus confronted the prospect of having no solid majority back either of his circulations.

On Marchetti, Harlan was inclined to accommodate the others. Brennan made it somewhat easier for him to do so. On receiving his draft, Brennan wrote back:

Douglas, however, immediately circulated a concurrence for Marchetti and a dissenting opinion for Grosso. Although Brennan preferred these drafts, he thought it wiser to try to head off a major dispute within the majority. "Is there anything about Parts I, II, IV and V which you can't join?" he asked Douglas, emphasizing that "it might be helpful on this prickly problem if we could join as much as possible of what John has written."[77] Black, the senior associate, who assigned the opinion to Harlan, agreed. But he told Harlan: "With my constitutional beliefs I could not possibly agree with any part of subdivison III of your opinion except the next to the last sentence in the last paragraph."[78] After thinking it over for two days, Harlan offered a compromise:[79]

With his revised draft of Marchetti, Harlan hung on to a bare majority but still was alone on Grosso. Each of the drafts offered by Douglas and Brennan employed, in different ways, the "required records" doctrine. White then sent a memorandum to the other chambers, pointing out that the "required records" doctrine was neither briefed nor argued by counsel before the Court. It might be best, he suggested, therefore to hear rearguments. Harlan agreed and wrote Black:[80]

The proposal was accepted and, after rearguments, Harlan resumed further revisions of his drafts in both cases. Not only did he succeed in holding onto his opinion assignments, but Harlan gathered the votes of seven other Justices, leaving only Warren dissenting in Marchetti and Grosso.[81]

Sometimes, Harlan was unwilling to yield and, after losing his opinion assignment, was forced to file a dissenting opinion.[82] Such were the circumstances behind the opinion announced in O'Callahan v. Parker.[83] James O'Callahan, a soldier stationed in Hawaii, was tried and convicted in court-martial for, while on an evening pass, breaking into a Honolulu hotel and attempting to rape a young woman. O'Callahan sought a writ of habeas corpus, contending that under the Sixth Amendment he was entitled to a trial in civil courts and that his alleged crimes were not service-connected, and hence beyond the jurisdiction of courts-martial. When a federal district court rejected his claims, he appealed to the Supreme Court.

After oral arguments in O'Callahan, the Justices voted six-to-three to affirm the lower court. Black, Douglas, and Marshall voted to reverse. Chief Justice Warren assigned the opinion to Harlan, who in time circulated an opinion broadly sustaining court-martial jurisdiction over military personnel. His draft, however, gathered the votes only of Stewart and White. Douglas circulated a sharp dissent, which Black joined. Warren, Brennan, and Fortas, moreover, concluded that they could not join Harlan's proposed opinion. For his part, Fortas sought narrower grounds on which he might concur in the result. But, in the end, he too prepared a dissent, shortly before resigning from the Court. With the Justices so divided, Harlan gave up his assignment and the case was reassigned to Douglas. Harlan later modified his draft and filed it as a dissent, joined by Stewart and White.

As in O'Callahan, there were other cases in which Harlan was left with little room to negotiate due to other Justices switching their votes. Harlan's proposed opinion for the Court thus became a dissenting opinion in Armstrong v. United States.[84] Cecil Armstrong sought just compensation from the federal government, as guaranteed by the Fifth Amendment, for its taking of liens that he possessed on certain uncompleted boat hulls and other building materials. But the Court of Claims held that Armstrong had failed to establish his claim to the liens, and therefore was not entitled to compensation.

On appeal to the Court, six Justices voted to reject the lower court's conclusion that Armstrong had never had liens on the property.

However, the majority also agreed that there had been constitutional "taking of property" under the Fifth Amendment. Assigned by Chief Justice Warren to draft the Court's opinion in Armstrong, Harlan in due course circulated a draft. By the time he did so, though, Warren, Douglas, and Stewart had changed their minds. They now took the position that there was an unconstitutional taking of property. Along with the three Justices originally in the minority at conference, a new majority thus emerged for reversing the lower court on constitutional grounds. Black was reassigned the opinion for the Court and Harlan turned his draft into a dissent, which Frankfurter and Clark joined.

IV .

As an element of judicial strategy during post-conference deliberations, Harlan occasionally circulated proposed concurring opinions in order to try to move the majority closer to his views. Like other Justices, he later suppressed his drafts if the author of the Court's opinion accommodated him and he saw no point in filing a separate concurrence.[85] A couple of examples from his unpublished opinions exemplify Harlan's tactics and practice.

Assigned to write the Court's opinion in the controversial "school prayer" case of Engel v. Vitale.[86] Justice Black initially circulated a draft that created problems for the others, including Harlan. His proposed opinion was sweeping in striking down the New York State Regents' nondenominational prayer, which public school children were required to recite at the beginning of each school day. According to Black, the law was unconstitutional in three respects: (1) it was an official government-sanctioned school prayer; (2) it constituted an endorsement by the state of one kind of religion over another; and (3) it aided religion with tax funds and, therefore, ran afoul of the Court's earlier rulings.[87]

The breadth of Blacks opinion moved Harlan to prepare and circulate a short concurrence. He agreed that the Regents' prayer was "incompatible with the constitutional principle of governmental aloofness from religious affairs," but added that,

When the conference later discussed Black's proposed opinion, there remained a majority for striking down New York's law. But only three others (Warren, Brennan, and Clark) were prepared to join in his opinion. Because the Court's ruling was bound to further fuel the "school prayer" controversy and Black's draft had the support of only a plurality, Stewart suggested that it might be wise to carry the case over for reargument. In that way, perhaps, a majority might be marshalled in support of an opinion for the Court's decision. At that suggestion, however, Harlan indicated a willingness to join Black's opinion if it were more narrowly drawn. Black agreed to accommodate Harlan's, as well as Douglas's, suggested changes, and Harlan withdrew his concurrence.

Justice Harlan's proposed concurrences in nine other cases[89] succeeded in getting his views incorporated in the Court's opinion and he thereafter withheld them,[90] or simply filed a brief statement concurring in the result.[91] In Johnson v. New Jersey,[92] for instance, the Warren Court limited the retroactive application of its controversial ruling in Miranda v. Arizona,[93] which came down just one week before Johnson. When Johnson was initially discussed in conference, a majority agreed to limit Miranda's application to all pending, non-final cases at the time Miranda was handed down. Subsequently, Chief Justice Warren circulated an opinion that struck Harlan as too broad and inviting countless appeals. Accordingly, he circulated an opinion stating that he would further restrict Miranda's retroactivity to only those cases involving confessions taken after the day Miranda was announced, on June 13, 1966. Several days after his draft circulated, the Justices again discussed other cases pending the Court's announcement of Miranda. At that time, a majority supported Harlan's position. Rather than reassign the opinion to Harlan, Warren agreed to rewrite his opinion for the Court. Harlan abandoned his circulation in favor of publishing a brief caveat reiterating his view that "the new constitutional rules promulgated in (Miranda and its companion cases are both unjustified and unwise."[94]

Although persuading a majority to accommodate his position, Harlan was not always satisfied. Even though the author of the Court's opinion met his demands, Harlan at times went ahead anyway with the publication of a concurring opinion, albeit substantially revised in light of the revisions made in the majority's opinion.[95] The deliberations behind the Court's reversal of the government's denial of conscientious-objector status to the world-famous and controversial boxer, Muhammad All, further illuminate Harlan's sense of justice, deference to precedents, and meticulous attention to details. Ali's case,[96] moreover, was highly complex and widely publicized as a symbol of the troubled 1960s when opposition to the Vietnam War steadily mounted and racial divisions continued to bitterly divide the country.

In 1966, All, who two years earlier had changed his name from Cassius Clay and become a Black Muslim, refused induction into the Army. He claimed exemption from military service on the ground that, as a Black Muslim, he was a conscientious objector. In his words, "I am a member of the Muslims and we do not go to war unless they are declared by Allah himself." According to his religious beliefs, Ali would fight only in a "Holy war" and Black Muslims did not consider the war in Vietnam to be that.

The government, however, denied Ali's status as a conscientious objector on three grounds. First, he did not qualify under the religious exemption provision of the Military Service Act because he objected to fighting only in certain kinds of wars. As a selective conscientious-objector, Ali was not entitled to exemption. Second, the government deemed Ali' s objections to be primarily personal and political, not religious. Finally, draft broad officials doubted the sincerity of Ali's religious claims. A federal district court upheld the government's position and sentenced Ali to five years in prison. After a court of appeals affirmed his conviction, Ali appealed to the Supreme Court.

During oral arguments on Monday, April 19, 1970, Solicitor General Erwin N. Griswold argued the government's case. Although he conceded that there were problems with the grounds on which the government had denied Ali exemption from the draft, Griswold persuasively argued that Ali was properly denied exemption as a selective conscientious objector. A majority of the Court appeared to agree with Griswold when the Justices met in conference on Friday, April 23. With Marshall recusing himself, the vote went five-to-three for affirming the lower court. Shortly thereafter, on May 3, Chief Justice Burger assigned Harlan to prepare an opinion for the Court.[97]

Before setting about drafting an opinion, Harlan devoted considerable time to studying the record. As he read it and learned more about the Black Muslim religion, he became convinced that Ali was not a "selective" conscientious objector after all. Harlan found Ali's religious beliefs to be substantially like those of other conscientious objectors of different faiths who had received draft exemptions. There was also a precedent for granting Ali's claim and reversing the lower court. Ali's claims, he concluded, were basically the same as those of Anthony Sicurella, a member of the Jehovah's Witnesses, who had sought exemption during the Korean war. Sicurella claimed that his religious beliefs permitted him to fight only "in the interests of defending Kingdom Interests, our preaching work, our meetings, our fellow brethren and sisters and our property against attack."[98] Moreover, the Court upheld Sicurella's claim to exemption from the draft.[99]

Harlan thus prepared and circulated a memorandum setting forth his new position and why he had settled on reversing the lower court, instead of affirming as he and the majority voted at conference. Brennan and Stewart, two of the three in the minority at conference, agreed to join his memorandum if it became the opinion for the Court. Douglas, another who had voted to reverse, continued to believe that Ali was, indeed, a selective conscientious objector. Still, he agreed to vote for a reversal based on his view of the First Amendment's guarantee for religious freedom, as he had stated in dissenting opinions in earlier conscientious objector cases.[100] The other four Justices (Burger, Black, Blackmun, and White) voted to affirm Ali's conviction and, Harlan noted,[101] were reluctant to go as far as he. They disagreed with him about whether there was no "basis in fact" for concluding that Ali's objections to fighting were "selective." With the Justices basically split four-to-four, Harlan reworked his opinion in the hope of persuading one more to side with him. His revised draft would have reversed Ali's conviction based on an analysis of prior rulings which, he argued, indicated that the "basis in fact" test should not be applied with full rigor in Ali's case. His recirculation failed to attract a fifth vote, however.

Late in Term, the Justices faced the unhappy prospect of Ali's case going down as an affirmance by an equally-divided Court. At that point, Stewart suggested a compromise: a reversal based on the fact that the government had departed from the reasons originally given for denying an exemption to Ali in its briefs and oral arguments before the Court. Before the Court, the government conceded that its first two grounds were invalid and that its third--the sincerity of Ali's religious beliefs--had been erroneously considered in the first place. Stewart's suggestion met with general approval and appeared preferable to the alternative of handing down an affirmance by an equally-divided Court, Stewart, thereafter, circulated a per curiam opinion which commanded the Court, without even a single dissent. Withdrawing his two earlier circulations, Harlan filed a one paragraph statement concurring in the result based on Sicurella.[102]

Finally, in two cases Harlan circulated concurrences but, as post-conference deliberations evolved, withdrew them in favor of joining another's dissenting opinion.[103] The most interesting of these involved the Warren Court's response to challenges to the Eisenhower administration's imposition of restrictions on the right to travel abroad. Two passport cases in the 1957 Term raised important yet distinct questions. The widely publicized case of Kent v. Dulles,[104] challenged the statutory and constitutional authority of the Secretary of State to issue regulations denying American citizens passports on the ground that they were Communists or adhered to the Communist Party line. The other, Dayton v. Dulles,[105] posed the question of whether individuals could be constitutionally denied passports based on information contained in government files but not made available to them. In both cases, lower courts upheld the government's position.

During conference discussion of Kent and Dayton, a bare majority settled on reversing the lower court in Kent. Chief Justice Warren was joined by Black, Frankfurter, Douglas, and Brennan. The majority for a reversal in Dayton was larger due to the fact that Harlan and Whit-taker sided with Kent's majority there. Later, Douglas was assigned by Warren the task of writing opinions for the Court in both cases. Because conference votes are always tentative until opinions come down on "Opinion Days," Douglas faced the vexing task of writing opinions that held on to the majorities in both cases, especially the bare majority in Kent. Ironically, when his drafts circulated, the seven-member majority in Dayton, instead of the bare majority in Kent, began to come apart.

Justice Frankfurter, along with the others in the majority, signed on to the draft in Kent. But, Frankfurter refused to join Douglas's draft in Dayton on the ground that he now felt that, in light of the holding in Kent, it was unnecessary for the Court to address the constitutional question presented in Dayton. Harlan agreed and circulated a proposed concurring opinion in Dayton. Whittaker was persuaded and, abandoning the conference majority in Dayton joined Harlan.

In response to these alarming defections, Douglas promptly recast his proposed Dayton opinion, disposing of it on the basis of Kent and declining to reach the constitutional issues posed. When Douglas's revised draft reached Frankfurter's chambers, "F.F." was pleased. He agreed to switch back to form a majority for a reversal in Dayton. Douglas thereby secured bare majorities in both cases.

During the following weeks when Douglas circulated further drafts in Kent and Dayton, one of the dissenters, Justice Clark, circulated lengthy dissenting opinions in both cases. As President Truman's former Attorney General, he had no doubt that the government had both statutory authority and constitutional power to deny passports to Communists and Communist-sympathizers. In response to his circulated dissent in Kent, Harlan suggested that Clark eliminate discussion of the Constitutional issue because Douglas's revised draft for the majority had not reached it. Clark agreed to do so, and Harlan withdrew his proposed concurring opinion in order to join Clark's dissent in Dayton and Kent.

V .

Dissenting opinions, in the words of Chief Justice Charles Evens Hughes, who rarely wrote them, appeal "to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the Court to have been betrayed."[106] Dissenting opinions are a way of undercutting the majority's decision and the reasoning in its opinion. The threat of one, therefore, may be useful for a Justice trying to persuade the majority to narrow its holding or to tone down some of the language in its proposed opinion. Even more dramatically proposed dissents may move the majority to entirely reconsider its position. Harlan preserved in his collected opinions three (out of four) unpublished dissents[107]that, after contributing to a recasting of the majority's opinions, he decided to then abandon.[108]

During the 1962 Term, Harlan succeeded with a circulated dissent in not only getting his views accommodated but in turning the Court around on its disposition of a case. In Florida Lime & Avocado Growers, Inc. v. Paul,[109] White initially circulated a proposed opinion for the court which rested on federal preemption grounds. Black, Douglas, and Clark agreed with him. But Stewart responded with a concurrence which took issue with White's preemption analysis and reached the same results on the basis of the Commerce Clause. Harlan agreed with Stewart's treatment of the preemption issue. Yet, he disagreed with his contention that, on the facts in the record, there was a violation of the Commerce Clause. Moreover, he circulated a dissenting opinion to the other chambers. Following these exchanges Brennan sent out a proposed dissent of his own. It dealt with the preemption issue at great length and incorporated Harlan's views on the Commerce Clause. That prompted Harlan and Stewart to abandon their opinions in favor of Brennan's. Deliberations, however, soon took a new twist when Warren and Goldberg agreed to join Brennan as well. With these turn of events, Brennan commanded a hare majority and White wrote for the dissenters.

On other occasions, Harlan circulated but later suppressed dissents due to signing on to another's instead. He preserved four such unpublished opinions in his bound volumes.[110] One of these, Lambert v. California,[111] raised a challenge to the constitutionality of a Los Angeles city ordinance making it a felony offense for a convicted felon to remain in the city for more than five days without registering with the police.

Virginia Lambert, a convicted felon, appealed her conviction for failing to register with the LAPD. On appeal, the Justices heard oral arguments during the 1956 Term and, then, carried the case over for two days of rearguments, on October 16 and 17, 1957. At conference the vote was unanimously to reverse. Chief Justice Warren assigned the opinion to Douglas. His initial draft struck the city's ordinance under the Fourteenth Amendment on the ground that the phrase "punishable as a felony" was too vague to sustain a criminal conviction. But, Douglas's initial draft failed to win the support of even a majority of the Justices, and so he redrafted it, sharply narrowing the basis for overturning Lambert's conviction.

Douglas's revised opinion in Lambert, which eventually was adopted and published,[112] held that Los Angeles's ordinance was invalid as applied to a person "who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge." By the time his revised opinion circulated, however, Harlan had concluded that the ordinance could constitutionally apply to convicted felons, even if they had no knowledge of their duty to register. Before his dissent circulated, Frankfurter beat him to the punch with one of his own. Withholding his draft, Harlan joined Frankfurter's dissent, as did Whittaker; Harold Burton separately noted his own dissent. Douglas's opinion for the Court, originally written for a unanimous Court, thus ended up as an opinion for only a bare majority.

VI .

Reflection, dedication, and candor led Justice Harlan at times to change his mind on the disposition of cases and the development of law. Occasionally, he even painstakingly explained publicly his shift in positions on decided cases.[113] The "Cases of the Murdering Wife’s"[114] as Justice Frankfurter referred to them, are illustrative of Harlan's open mindedness, frankness, and constant concern with deciding only the issues at hand, rather than over-reaching in constitutional adjudication.

Both cases, Reid v. Covert,[115] and Kinsella v. Krueger,[116] involved women who allegedly killed their husbands while stationed abroad in the military. They raised the issue of the constitutionality of subjecting civilians living abroad with military personnel to courts-martial under the Uniform Code of Military Justice, which did not extend the same guarantees as those in the Bill of Rights for criminal trials. When the Court initially discussed the cases at conference during the 1955 Term, the vote went five-to-four to hold that the jurisdiction of courts-martial expired when the women were transferred to penal institutions in the United States, and that the women were entitled to protection of the guarantees of the Bill of Rights.

Following that conference vote, Chief Justice Warren took the opinion assignment for himself. But, shortly afterwards, Justice Reed changed his vote, and a new majority emerged for deciding the cases in the way other than had been agreed on at conference. Justice Clark was reassigned responsibility for writing opinions in both cases. Later, Harlan joined Clark's opinion for the Court holding that the women could be tried under military law. Frankfurter filed an opinion expressing his reservations about the Court's ruling,[117] and Warren, Black, and Douglas dissented.[118]

The next Term, however, Harlan joined the three dissenters in pressing for a reconsideration of Reid and Kinsella. Circumstances, then, changed rather unexpectedly and dramatically within the Court. On October 15, 1956, Justice Sherman Minton, who had voted with the majority in Reid and Kinsella, retired. Two weeks later, over the objections of Clark, Burton, and Reed, rearguments in the cases were granted.[119] Then, in another surprising turn of events, on the day before hearing rearguments, February 26, 1957, Justice Reed stepped down. That left only four Justices (Clark, Burton, Frankfurter, and Harlan) from the six-member majority that had upheld courts-martial jurisdiction over civilian-dependents stationed abroad with military personnel, and Frankfurter and Harlan were now waivering on where they stood.

After hearing rearguments, there once again was a majority for limiting the jurisdiction of courts-martial and enforcing the guarantees of the Bill of Rights. The three dissenters (Warren, Black, and Douglas) from the Court's ruling in Reid I were joined by Brennan, who had replaced Minton on the Bench. Reed's successor, Justice Whittaker, did not participate in the cases. And Frankfurter and Harlan now swung over to the other side, leaving Clark and Burton resigned to file a dissent.

This time around Chief Justice Warren assigned the Court's opinion for Reid II to Black. But, his draft ultimately commanded only a plurality of the Justices. Frankfurter and Harlan filed separate concurring opinions. For his part, Harlan explained his reasons for voting to rehear the cases and for ultimately taking a different position in the disposition of the cases. He had concluded that the majority in Reid I, which he joined, was mistaken in its interpretation of precedents "as standing for the sweeping proposition that the safeguards of Article III and the Fifth and Sixth Amendments automatically have no application to the trial of American citizens outside the United States, no matter what the circumstances."[120]

Justice Harlan, nevertheless, refused to go as far as Black did in his rather sweeping opinion for the Court in Reid II. Whereas Black would extend all of the constitutional rights guaranteed under the Bill of Rights to civilians who were subject to courts-martial, Harlan remained committed to narrowly addressing and deciding the cases before the Court. In his words:[121]

Besides Muhammad Ali's case,[122] Harlan changed his mind and withdrew, yet preserved as unpublished, opinions in four other cases.[123] United States v. Shirey[124] was one of these. There, the Court voted to note probable jurisdiction and hear oral arguments in an appeal by the government challenging a federal district court's dismissal of an indictment for bribery. George Shirey had been under investigation for allegedly bribing a member of Congress in violation of a federal statute penalizing "whoever pays or offers or promises any money or thing of value, to any person, firm, or corporation in consideration" of the use of influence to obtain government office.[125] Shirey allegedly promised Pennsylvania's Representative S. Walter Stauffer that he would contribute $1,000 to the Republican Party if the Congressman used his influence to obtain for him the postmastership of York, Pennsylvania. But, a federal district court dismissed the indictment upon concluding that the government had failed to establish Shirey's offense under the statute.

At conference, the Justices voted six-to-three to reverse the lower court in Shirey, with Black, Whittaker, and Stewart dissenting. Chief Justice Warren subsequently gave Harlan the task of drafting the Court's opinion. When further researching the case, however, Harlan discovered some legislative history that had not been dealt with in either the briefs or oral arguments before the Court. And he decided that the district court's decision should be affirmed, rather than reversed.

Having changed his mind about the disposition of Shirey, Harlan circulated a memorandum detailing his reading of the legislative history of the statute and explaining why he thought that the Court should reach a result contrary to the conference vote. His memorandum persuaded Douglas to switch over, from "reversing" to "affirming." Along with the three Justices (Black, Whittaker, and Stewart) who had constituted a minority at conference, Harlan and Douglas were in the position of forging a new majority on the Court.

Justice Harlan thus reworked his draft with the hope that it would indeed be in a majority. But, Frankfurter remained unconvinced by his usual ally's draft and post-conference switch.

Moreover, when Frankfurter circulated a proposed dissenting opinion, ironically, Douglas was moved to once again change his mind. With Douglas rejoining Frankfurter and the others who had voted to reverse at conference, Frankfurter's draft commanded a bare majority. Harlan, in turn, withdrew his initial opinion, and revised his second draft as a dissenting opinion, which Black, Stewart, and Whittaker joined.[126]

VII .

Justice Harlan's unpublished opinions provide more than just "a glimpse of the Supreme Court at work."[127] They document his painstaking craftsmanship and record both his exceptional productivity and devotion to considering (and at times reconsidering) the merits of each case. In addition, they underscore his fair minded and farsighted judicial philosophy, along with his strong independent judgment and abiding concern with the Court's institutional role in American government. Central to his judicial philosophy and work on the Court was Justice Harlan's wise counsel that

Acknowledgement The author is grateful for the financial support of the Supreme Court Historical Society in the preparation of this article.

Endnotes