John Marshall Harlan and the Warren Court

NORMAN DORSEN

Editor's Note: A version of this paper was presented to a conference on the Warren Court at Georgetown Law School in January 1990 and to a conference on Justice Harlan at New York Law School in April 1991.

Justice Harlan was an indispensable component of the Warren Court. This is true not only, as a wiseacre might say, because losers are needed if there are to be winners, but because he provided a form of resistance to the dominant motifs of the Court that was intelligent, determined, professionally skillful, and above all principled. In a sense he defined the Court by his dissents. For this performance over 16 years Harlan received extraordinary praise. Earl Warren himself said, "Justice Harlan will always be remembered as a true scholar, a talented lawyer, a generous human being, and a beloved colleague by all who were privileged to sit with him."[1] Judge Henry Friendly, who first worked with Harlan as a young lawyer in the early 1930s, boldly asserted, "there has never been a Justice of the Supreme Court who has so consistently maintained a high quality of performance or, despite differences in views, has enjoyed such nearly uniform respect from his colleagues, the inferior bench, the bar, and the academy."[2] There are many similar accolades.[3]

I shall in this paper indicate the nature and extent of Harlan's views as a counterpoint to the Warren Court majority. But I shall also suggest that it would be a mistake to conceive of Harlan solely in this light, as an inveterate reactionary seeking to forestall the brave new world that his brethren sought to welcome or even to create. To a surprising degree, Harlan concurred in the liberal activism of the Warren Court, picking his spots carefully and above all seeking (though not always successfully) to be true to his core values of federalism and a limited judicial function. What emerges, in sum, is not a right-wing Justice as he is sometimes conceived, but rather someone much closer to the center, a moderate figure avoiding the extremes.

I .

Initially, I shall present Harlan the dissenter from the principal themes of the Warren Court. Perhaps the most central of these is Equality, an idea that "[O]nce loosed...is not easily cabined," as Archibald Cox said in his valuable book on the Warren Court.[4] Harlan vigorously opposed egalitarian rulings of many kinds. He was most vehement in condemning the reapportionment decisions, first Baker v. Carr,[5] in which the Court acknowledged federal jurisdiction to decide the issue whether state legislative districts were malapportioned, then Reynolds v. Sims,[5] in which the Court established the one person-one vote rule, and then the many sequels to these rulings.[7] Harlan never became reconciled to what he regarded as a wholly unjustified encroachment into the political realm, saying in Reynolds that "lilt is difficult to imagine a more intolerable and inappropriate interference by the judiciary with the independent legislatures of the States."[8]

Closely related to the apportionment cases are those dealing with the right to vote. Here, too, he dissented, from the ruling that invalidated Virginia's poll tax, from a decision that opened school board elections to a man who was neither a parent nor a property-holder in the district, and from the decision upholding Congress's power to extend the franchise to 18 year olds.[9]

The poll tax case illustrates an aspect of the Court's egalitarianism to which Harlan especially objected, its acceptance of the idea that government has an obligation to eliminate economic inequalities as a way to permit everyone to exercise human rights. The leading case was Griffin v. Illinois,[10] in which a sharply divided Court held that where a stenographic trial transcript is needed for appellate review, a state violates the Fourteenth Amendment by refusing to provide the transcript to an impoverished defendant who alleges that reversible errors occurred at his trial. Harlan's dissent maintained that "[a]ll that Illinois has done is to fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action."[11] He later dissented from Douglas v. California,[12] which held that a state could not deny counsel to a convicted indigent who seeks his only appeal by right to a higher court.

Another example of the genre is Harlan's protests at efforts to transform welfare payments into entitlements. Thus, in a major effort, he maintained that states could deny such payments to otherwise eligible welfare applicants who had not resided in the state for a year or more.[13]

Harlan also found himself out of step with the prevailing view on criminal procedure, where the Warren Court rewrote the book, transforming the law relating to confessions and line-ups, the privilege against self-incrimination, wiretapping and eavesdropping, and the admissibility of illegally obtained evidence, among other aspects of criminal cases. The linch-pin of most of the rulings was the doctrine of selective in-corporation, under which the Court applied to state criminal trials under the Fourteenth Amendment's due process clause the protections of the first eight amendments to the Constitution that were deemed "fundamental."[14] Rejecting Harlan's view that the due process clause established a general test of "fundamental fairness" not tied to the particular provisions of the Bill of Rights, the Court completed a massive reform of criminal procedure in an astonishingly brief period of time. Harlan vigorously dissented from most of the seminal decisions, including those applying the exclusionary rule to illegally seized evidence, incorporating the privilege against self-incrimination, establishing the "Miranda" rules for warning individuals being taken into police custody, and the requirement of a jury trial in criminal cases.[16] He equally opposed the Court's conclusion that the guarantees of the Bill of Rights that were "selectively" incorporated should apply to the states in exactly the way in which they applied to the federal government.[17] In these cases he asserted that a "'healthy federalism" was inconsistent with the assertion of national judicial authority.[18]

Harlan also objected, in the interests of federalism, to extensions of congressional power. The two most significant cases of this sort were Katzenbach v. Morgan,[19] and United States v. Guest,[20] which adopted broad theories in sustaining, respectively, the authority of Congress to invalidate state English language literacy tests for voting as applied to individuals who completed sixth grade in Puerto Rican schools and to punish private (not state) action that interferes with constitutional rights.

At the same time Harlan, often contrary to the majority, deferred to congressional judgments that impaired civil liberties. For example, he conceded broad authority to Congress over citizenship, rejecting any constitutional right to prevent involuntary denationalization;[21] he protested a softening of the immigration law that provided for deportation of an alien who had ever been a member of the Communist Party, however nominally;[22] and he did not recognize a constitutional right to travel abroad, first recognized in Kent v. Dulles,[23] and solidified in Aptheker v. Secretary of State.[24] In all these cases he refused to overturn actions of the elected branches of government that resulted in severe and arguably unjustified harm to individuals.

There is no doubt, in light of these cases and others, that Justice Harlan was a regular and frequent dissenter from many of the Warren Court's key liberal decisions. In addition, especially in his early Terms, there were many important cases in which Harlan was part of a majority that rejected constitutional theories supported by the liberal Justices. For example, he wrote the prevailing opinions in cases rejecting First Amendment claims by individuals who were held in contempt by the House Un-American Activities Committee and denied admission to the practice of law for refusing to respond to questions concerning Communist activities, and by a man sentenced to prison because of membership in the Communist Party.[25] These cases have not been overruled, but later actions overturned majority decisions of which Harlan was a part that, for example, permitted states to question criminal suspects without concern for the privilege against self-incrimination, and to deny women the right to serve on juries equally with men.[26] Here too Harlan was out of step with the liberal activism that distinguished the Warren Court.[27]

II .

But this is far from the whole story. Justice Potter Stewart, one of Harlan's closest colleagues, recognized this when he said, "I can assure you that a very interesting law review article could someday be written on 'The Liberal Opinions of Mr. Justice Harlan.’"[28] In virtually every area of the Court's work, there are cases in which he was part of the consensus and, indeed, in which he spoke for the Court.

Harlan joined Brown II[29] and Cooper v. Aaron,[30] decisions instrumental in protecting the principle of the initial school segregation case, Brown I.[31] He also joined every opinion decided while he was on the Court that applied the principle of Brown to other sorts of state-enforced segregation.[32]

He concurred in Gideon v. Wainwright,[33] the right-to-counsel case, and wrote the opinion in Boddie v. Connecticut,[34] which held that a state could not deny a divorce to a couple because they lacked the means to pay the judicial filing fee. Although both these cases were decided under the due process clause, they were, at bottom, judicially mandated equalization of economic circumstance in situations where Harlan concluded that it would be fundamentally unfair to deny poor people what others could afford.

In the criminal procedure area, while opposing the exclusionary rule in state prosecutions, he consistently supported a strong version of the Fourth Amendment protection against unreasonable searches and seizures by federal authorities,[35] including application of the principle to wiretapping and eavesdropping.[36] He also wrote a separate opinion to underscore his agreement with the ruling that extended criminal due process protections to juveniles accused of delinquency.[37] And he joined the decision overruling earlier cases upholding the federal registration requirements for gamblers, concluding that they could avoid prosecution for violation of the statutes by pleading the privilege against self-incrimination.[38]

Turning to free expression, one finds a host of important cases in which Harlan supported the constitutional right. For example, he wrote the important opinion in NAACP v. Alabama;[39] which held that the right of individuals to join civil rights groups anonymously when exposure would have entailed great personal risks was a form of freedom of association protected by the First Amendment. He joined New York Times Co. v. Sullivan,[40] which first imposed limits on libel judgments against the media, and some (though not all) of the sequels to that case.[41] He joined opinions that barred states from seating an elected legislator who had been denied his seat because of his sharply critical views on the Vietnam War, and from convicting a leader of the Ku Klux Klan for "'seditious" speech.[42] And he wrote for the Court to protect the right of a black man, who was unnerved by the fact that a civil rights leader had been shot, to express himself strongly about the country while burning the flag.[43]

Harlan also wrote a number of opinions, all curbing variants of McCarthyism, that nominally are decided on non-constitutional grounds but rested on First Amendment principles. In the first of these, Cole v. Young,[44] which invalidated the discharge of a federal food and drug inspector, Harlan interpreted a statute authorizing dismissals of government employees "in the interests of national security" to apply only to jobs directly concerned with internal subversion and foreign aggression. The next year, in what Anthony Lewis has described as a "masterfully subtle opinion,"[45] Harlan construed the Smith Act to permit prosecution of Communist Party leaders only for speech amounting to incitement to action rather than for "abstract doctrine" advocating overthrow.[46] A third instance involved companion cases[47] in which the government had revoked the naturalization of two persons who were asserted to have obtained their citizenship improperly. The government contended that they were Communists and therefore not "attached to the principles of the Constitution of the United States" as required by the applicable statute. Harlan's opinion found that "clear, unequivocal and convincing evidence" was lacking that the individuals were aware, during the relevant period prior to their becoming citizens, that the Communist Party was engaged in illegal advocacy. During the 1950s these decisions were milestones in lifting the yoke of political repression.

Freedom of religion also showed Harlan as frequently, but not invariably, protective of constitutional guarantees. He joined decisions that prohibited organized prayer in the public schools[48] and invalidated a requirement that state officials declare a belief in God.[49] And while approving state loans of textbooks to church schools,[50] he balked when tax-raised funds were used to reimburse parochial schools for teachers' salaries, textbooks and instructional materials.[51] Similarly, while unwilling to protect adherents to Sabbatarian faiths who objected to Sunday closing laws and to unemployment compensation laws that required a willingness of the applicant to work on Saturdays,[52] Harlan wrote a powerful opinion during the Vietnam War declaring that a statute that limited conscientious objection to those who believed in a theistic religion "offended the Establishment Clause" because it "accords a preference to the 'religious' [and] disadvantages adherents of religions that do not worship a Supreme Being."[53]

In all these cases, Harlan emphasized that "[t]he attitude of government towards religion must...be one of neutrality."[54] Harlan was sophisticated enough to appreciate that neutrality is "a coat of many colors."[55] Nevertheless, as Professor Kent Greenawalt has observed, "no modern Justice ha[s] striven harder or more successfully than Justice Harlan to perform his responsibilities in [a neutral] manner..."[56]

A final area of civil liberty, sexual privacy, is of particular importance because Harlan produced the most influential opinions on this subject written by anyone during his tenure. In the first case,[57] a thin majority, led by Justice Frankfurter, refused to decide whether a Connecticut law that criminalized the sale of contraceptives to married and unmarried people alike violated the Constitution, finding that there was no threat of prosecution. Harlan's emotional opinion[58]--a rarity for him --not only differed with this conclusion but also extensively defended the proposition that Connecticut's law violated the due process clause of the Fourteenth Amendment, a position that prevailed four years later in concurring in Griswold v. Connecticut,[59] It is impossible to know whether Harlan would have extended this reasoning to support the result in Eisenstadt v. Baird[60] which held that a state could not punish the distribution of contraceptives to unmarried persons, or to Roe v. Wade's[61] recognition of abortion as a personal right, both decided soon after he retired. But I am confident that, at a minimum, he would have protected the right of a married woman to proceed with an abortion that was dictated by family considerations.

Harlan's participation in the major thrusts of the Warren Court was not confined to civil liberties and civil rights. In economic cases, too, he often went along with the majority's support of government regulation of business, despite the fact that his private practice of law often involved the defense of antitrust and other actions against the government and that he was acutely aware of the effect of regulation on business.[62]To be sure, he frequently voted to limit the impact of regulatory statutes,[63] but there are also many important antitrust cases in which he sided with the government or private plaintiff.[64]

III .

What should one conclude from the many decisions in which Justice Harlan, a conservative, supported constitutional rights, often in highly controversial cases in which the Court was split? That he was in step with the majority of the Warren Court? Plainly not; there are too many instances where he marched separately. That he was essentially a civil libertarian? No again; not only are there too many cases to the contrary, but at a basic level that is not the way Harlan reacted to injustice. This is not to say that he was insensitive to human suffering or unmoved by evidence of arbitrariness. It is rather that something else was at the core.

In my opinion, that something was Harlan's deep, almost visceral, desire to keep things in balance, to resist excess in any direction. Many times during my year with him he said how important it was "to keep things on an even keel." To me, that is the master key to Harlan and his jurisprudence. One recalls Castle, the hero of Graham Greene's novel, The Human Factor, as he muses on those who are "unable to love success or power or great beauty."[65] Castle concludes that it is not because these people feel unworthy or were "more at home with failure." It is rather that "one wanted the right balance...." In reflecting on some of his own perplexing and self-destructive actions, Castle decides that "he was there to right the balance. That was all."[66] Harlan was not a man who avoided success or power or, if one knew Mrs. Harlan, great beauty, but nevertheless in his own eyes he was there to right the balance. It is significant that he entitled a major speech at the American Bar Association Thoughts at a Dedication: Keeping the Judicial Function in Balance.[67]

There is evidence of balance not only in the decisions discussed above but in his elaborate views on doctrines of justiciability. These are closely related to his frequent preoccupation with judicial modesty or, put negatively, his opposition to excessive judicial activism, which m turn is related to the central theme of his judicial universe--federalism. As I suggested in 1969,

Harlan's thinking on jurisdictional issues was also related to his long years as a practicing lawyer where he customarily represented defendants in litigation. In that role he had to be "constantly aware that it is easier and quicker to achieve victory on grounds such as want of federal jurisdiction, lack of standing or ripeness, or failure to join an indispensable party, than to prevail on the merits of a lawsuit."[69]

That this earlier sensitivity to issues of justiciability carried over to his judicial years is seen in the many instances where Harlan urged jurisdictional rules to avoid deciding controversial cases. Among the most notable are his dissenting opinions in Baker v. Carr,[70] and Reynolds v. Sims,[71] where he concluded that the issue of legislative reapportionment was a political question; in Dombrowski v. Pfister,[72] where he objected to the adjudication of the constitutionality of Louisiana's Subversive Activities and Communist Control Act in a federal suit to enjoin a state criminal prosecution under the statute; in Fay v. Noia,[73] and Henry v. Mississippi,[74] where he criticized expansion of federal judicial authority to review state criminal convictions which previously were unreviewable because the convicted person had not complied with state procedural requirements; and in Flast v. Cohen,[75] where he dissented from the Court's holding that taxpayers had standing to challenge federal financial aid to religious schools.

On the other hand, reflecting his balanced approach, Harlan wrote or joined many opinions that expanded the Court's jurisdiction. Perhaps the most striking was Poe v. Ullman,[76] where he vigorously rejected, in a dissent, the reasoning of Justice Frankfurter in dismissing an early challenge to Connecticut's birth control law on the ground that the statute was not being enforced. Again, in NAACP v. Alabama,[77] the first case explicitly recognizing a freedom of association, his opinion for the Court proceeded to its First Amendment conclusion only after overcoming difficult procedural obstacles involving the doctrines of standing and independent state ground. And in the first school prayer case,[78] and again in the ruling that ordered the House of Representatives to seat Adam Clayton Powell,[79] both decisions of unusual sensitivity, Harlan joined majority opinions that rejected substantial justiciability defenses.[80]

Harlan's often unappreciated willingness to expand judicial authority can be seen in several cases involving the broadening of remedies in civil rights and economic cases alike. In one case, again differing with Frankfurter, he wrote a concurring opinion sanctioning the expansion of federal remedies against municipal officials who violated an individual's civil rights.[81] In a second ruling, involving a provision of the Securities and Exchange Act that prohibited false and misleading proxy statements in respect to mergers, Harlan agreed that a stockholder could sue for rescission and damages even though the statute was silent on private lawsuits to enforce the statute.[82]

Stare decisis is another important area relating to legal process and the judge's role in which Harlan's actions betrayed a more activist spirit than is commonly recognized. His general insistence on adhering to precedent was

There are many examples of his unwillingness to reach beyond accustomed boundaries.[84]But there are also many contrary instances. He voted to overrule Betts v. Brady,[85] and grant an absolute right of counsel to defendants in felony prosecutions. In Marchetti v. United States,[86] he spoke for the Court in overruling a decision that denied the privilege against self-incrimination to gamblers prosecuted for failing to register and pay taxes. And in Swift & Co. v. Wickham,[87] he wrote in the course of overruling an earlier decision that "[u]nless inexorably commanded by statute, a procedural principle of this importance should not be kept on the books in the name of stare decisis once it is proved to be unworkable in practice...."[88]

A striking aspect of Harlan's approach to stare decisis is that he would often follow precedent from which he had dissented when it was initially established.[89] Equally striking is that Harlan followed this principle even as it carried him to dissent from the Court's failure to follow precedent with which Harlan disagreed. Thus, in Green v. United States,[90] the Court held that where a defendant is convicted of a lesser included offense and then secures reversal of the conviction, the defendent may be retried only for the lesser included offense. Although Harlan dissented in Green, he dissented again in North Carolina v. Pearce,[91] where he found, contrary to the Court, that Green mandated the conclusion that a defendant once "convicted and sentenced to a particular punishment may not on retrial be placed again in jeopardy of receiving a greater punishment than was first imposed."[92]

Finally, one may point to cases in which Harlan exhibited a trait familiar to all of his law clerks--his exceptional open-mindedness and willingness to listen to new arguments. In these cases he dissented from the Court's refusal to hear oral argument on constitutional claims, although in each of them he was not predisposed to agree that the appeal had merit. Thus, he joined Justice Douglas's dissent from the refusal to hear a plea of the Veterans of the American Lincoln Brigade that the organization was improperly ordered to register as a Communist front organization under the Subversive Activities Control Act.[93] Similarly, despite his earlier Barenblatt[94] ruling, he would have heard a challenge to contempt citations by the House Un-American Activities Committee against an uncooperative witness.[95] And in perhaps the most far-reaching action, he would have set down for oral argument a complaint by the state of Massachusetts that raised the issue of the legality of the Vietnam War, although he ordinarily accorded great deference to decisions of the elected branches of government on matters of war and peace.[96]

In one area Harlan was inflexible; he consistently refused to widen the scope of "state action" under the Fourteenth Amendment to encompass discrimination engaged in by what he regarded as private actors.[97]

IV .

The Warren Court ended in mid-1969, but Harlan remained for two more Terms, a brief period in which he was the leader of the Court. Possessing seniority and an unmatched professional reputation, he took advantage of the replacement of Earl Warren and Abe Fortas by Warren Burger and Harry Blackmun to regain the position of dominance that Justice Frankfurter and he shared until Frankfurter retired in August 1962. Thus, as Chief Judge Friendly has noted, against an average of 62.6 dissenting votes by Harlan per Term in the period between 1963 and 1967, he cast only 24 such votes in the 1969 Term and 18 in the 1970 Term.[98]

This new situation meant that Harlan could reassert conservative themes in his own opinions or join such expressions in the opinions of others. For example, during this period he adhered to his longstanding opposition to expansion of the constitutional rights of poor people to public assistance by voting with the majority in the leading case rejecting welfare as an entitlement.[99]

He prevailed in a series of criminal justice decisions, including those that confined the reach of the confrontation clause, denied a jury trial in juvenile delinquency proceedings and permitted the closing of such hearings to the public, and authorized capital sentencing without guidelines.[100] And in an important case that involved both the rights of poor people and procedural due process, he joined Justice Blackmun's opinion that rejected Fourth Amendment claims in sustaining the power of caseworkers to make unannounced visits to the homes of welfare recipients to check their eligibility and to provide rehabilitative assistance.[101]

In the First Amendment area Harlan also maintained longstanding positions, but here he was more often in dissent. The most notable occasion was the Pentagon Papers case[102] where he would have permitted a prior restraint of newspaper publication of an extensive and politically embarrassing history of the Vietnam War. He also dissented in an important libel case[103] and in two decisions confining the authority of bar examiners to probe into the associations of applicants.[104] But he prevailed in another bar admission case, recalling issues from earlier days, that sustained questions about Communist associations,[105] and he again joined the majority in an obscenity prosecution that rejected privacy as well as free speech claims.[106]

With regard to the breadth of the judicial role, he maintained his strong opposition to expansion of the state action doctrine, even when the consequence was to limit racial equality,[107] and he took a similar position in rejecting a Fourteenth Amendment claim against an amendment to a state constitution that provided for a community referendum before a low-rent housing project could be constructed or acquired.[108]

At the same time that Harlan was, under Chief Justice Burger, renewing his formidable conservative record, he nevertheless adhered to a balanced judicial profile. Although liberal activist rulings did not dominate his last biennium on the Court, there surely are many examples of the genre.

Thus, in the equality area, he maintained his support for desegregation,[109] and he joined the new Chief's important opinion that expanded remedies against discriminatory employment tests.[110] And his opinion, noted earlier, in Boddie,[111] which invalidated a state statute that denied poor couples the right to a divorce because they could not afford court filing fees came during this period. Harlan's reliance on the due process clause to reach this result was widely criticized,[112] and the doctrine has not survived, but the case stands as a rare example of Harlan's reaching out to right an economic imbalance that prejudiced poor people in American society.[113] In another such case involving criminal justice, Harlan joined the Court's opinion prohibiting the incarceration of indigents who were unable to pay criminal fines.[114] He continued his deep concern for Fourth Amendment rights[115] and wrote an extensive concurring opinion in support of "beyond reasonable doubt" as the proper standard of proof in juvenile delinquency hearings.[116] And in the First Amendment field he wrote a widely cited opinion that protected the display in a state courthouse of a "scurrilous epithet" ("Fuck the draft") in protest against conscription.[117] From 1969-1971, Harlan also manifested flexibility by joining majorities that considerably expanded federal remedies for civil rights violations[118] and overcame rigid theories of stare decisis in a variety of cases.[119]

V

The pattern of decisions provides ample proof that Harlan was not a one dimensional Justice. What is less clear is the source of his drive to keep things in balance, to eschew an extreme ideology.

Two possibilities may be suggested. The first is the familiar notion that in any society patricians (like Harlan) are concerned less with results in particular controversies, and certainly less about pressing any group against the wall, than in assuring the smooth functioning of institutions without the precipitation of volatility or deep-seated enmities. This means that dissent should be allowed an outlet, that racial minorities should be able to hope, that political power should not become centralized and therefore dangerous. Thus his decisions supporting desegregation, a strong federal presence, and law and order. Thus also his fears about court-dominated reapportionment and about an "incorporation" of the Bill of Rights through the Fourteenth Amendment that represented too dramatic a break with established doctrine. But thus also, Harlan's willingness to take reformist steps, to overrule outdated precedent selectively and before a problem worsened, and above all, to listen closely to many voices.

A second source of Harlan's overall philosophy is Legal Process theory, which had its heyday for almost exactly the period that he served on the Supreme Court. In the early 1950s, Henry Hart produced an early draft of the work that he and Albert Sacks published at Harvard Law School in a "'tentative edition" in 1958 (it was also the final edition). The moderate philosophy embodied in these materials was tailor-made to Harlan's personality. It emphasized the central role that procedure plays in assuring judicial and legislative objectivity[120] and the corollary "principle of institutional settlement,"[121] which holds that judgments properly arrived at by institutions operating within their appropriate sphere of authority should be accepted as binding on the entire society until duly changed. Not surprisingly, Harlan was attracted to this theory, which enabled him to take constitutional steps as long as they were not too long or jarring, while simultaneously offering him ample institutional reasons for resisting excessive judicial authority.[122]

By 1971, when Harlan left the Supreme Court, Legal Process theory, buffeted by events in society at large, was beginning to lose its hold, even at Harvard, and the more extreme philosophies of law and economics and critical legal studies moved to the forefront. The struggle within the Court became ever more polarized as strong civil libertarians, which Harlan was not, waged battle with doctrinaire conservatives, which Harlan also was not.

CONCLUSION

It fell to John Marshall Harlan, by nature a patrician traditionalist, to serve on a Supreme Court which, for most of his years, was rapidly revising and liberalizing constitutional law. In these circumstances, it is not surprising that Harlan would protest the direction of the Court and the speed with which it was traveling. He did this in a remarkably forceful and principled manner, thereby providing balance to the institution and the law it generated. Despite this role, Harlan joined reformist rulings on the Court during his tenure to a degree that his overall jurisprudence can fairly be characterized as conservative primarily in the sense that it evinced caution, a fear of centralized authority, and a respect for process. In short, the nature and results of Harlan's jurisprudence were far more mixed than his conservative reputation would allow.

Endnotes