Tinsley Yarbrough
Tinsley Yarbrough
John Marshall Harlan: Great Dissenter of the Warren Court
ISBN: 0195060903
John Marshall Harlan: Great Dissenter of the Warren Court
Tinsley Yarbrough discussed his book, "John Marshall Harlan: Great Dissenter of the Warren Court." The book is a biography of former Justice Marshall and his impact on the Warren Court.
Search Audible
Video Clip Search is not available for this video.
TRANSCRIPT
John Marshall Harlan: Great Dissenter of the Warren Court
Program Air Date: April 26, 1992

BRIAN LAMB, HOST: Tinsley E. Yarbrough, author of "John Marshall Harlan: Great Dissenter of the Warren Court," why is there a need for this biography?
TINSLEY YARBROUGH, AUTHOR, "JOHN MARSHALL HARLAN: GREAT DISSENTER OF THE WARREN COURT" Well, I believe that there is a growing interest in Harlan now, in part, because of some trends on the Supreme Court. In the area of criminal procedure and a number of other areas, some of what the court is saying and doing smacks of Harlan. Now my own opinion is that some of the generalizations that this is now a court very much in the mold of John Harlan are rather superficial, but, certainly, there are ties between what the court has been doing for the last decade or so and John Harlan's jurisprudence, and that was one of the reasons that I got interested in writing a biography of him.
LAMB: When did he serve on the court?
YARBROUGH: From 1955 to 1971.
LAMB: Who were his contemporaries?
YARBROUGH: Well, the Warren courts -- Earl Warren. One of his mentors, his principal mentor, was Felix Frankfurter, who had served on the court from the late '30s. Another close friend of his on the court, somewhat ironically, was my fellow Alabamian, Hugo L. Black Jr. Justice Black and Justice Harlan differed on a lot of constitutional issues and on their approach to interpreting the Constitution,but I think both of them were concerned about excesses of judicial power. And I think they had a warm, personal feeling, particularly after Felix Frankfurter left the court in 1962. During the last decade of Black's tenure and Harlan's last years on the court, they were very close personal friends. They agreed increasingly on some of the constitutional issues, too, but they were also close personal friends. I think Harlan probably had a closer personal relationship with Black than he did with Felix Frankfurter, even though he and Frankfurter thought more alike on constitutional issues and the role of the judges.
LAMB: A picture in your book of Felix Frankfurter. And the reason I bring it up is that he is often written about and people often compare him to others. Why?
YARBROUGH: Well, he was, I think, one of the major antagonists on the court during the later Warren years. He was a strong advocate of judicial self-restraint. He was an accomplished scholar, Harvard law professor before going on the court, a strong intellect. And I think it's simply natural that people would focus on him. He attempted to exert influence on other justices, both those who generally agreed with him and those who did not. I think he viewed the court as a continuing seminar in constitutional law. And I think it's natural that he would be a focus of research, just as Hugo Black has been a focus of research. They were both strong personalities. They were both on the court a lengthy period. They both attempted to capture the souls of their various colleagues on constitutional issues.
LAMB: And then on the other side you have a picture of Hugo Black. What was he all about?
YARBROUGH: Well, Black had had a different career. Prior to going on the Supreme Court, he had been a lawyer in Birmingham. He had been a member of the United States Senate from Alabama. He was a politician. He had had that sort of life. On the court, though, he attempted to develop an approach to constitutional interpretation that he thought would limit the ability of judges to abuse their authority. He tried to get the justices to tie their decisions and interpretations of the Constitution to the language of the Constitution and its historically intended meaning, at least as Hugo Black viewed that.

And I think he succeeded in some ways; not that there is that clear a meaning for the Constitution, but the interpretations that he gave such open-ended clauses as due process and equal protection did tend to box the justices in more than was the case with others. And I think that's one reason that John Harlan, the subject of my book, had some affinity with Black, even though they often differed on constitutional issues. And even though Harlan did not believe that the meaning of the Constitution could be determined primarily through a resort to its language and historical intent, it was true that Harlan wanted to limit judicial power, and he realized that Hugo Black had a sincere interest in that, too. So he thought that Black was concerned about the court as an institution, just as he was, and just as Felix Frankfurter had been.
LAMB: Where do you reside most of the time?
YARBROUGH: I am a native of Alabama, but since 1967 I've lived in Greenville, North Carolina, where I teach in the department of political science at East Carolina University. You may be thoroughly confused now, but East Carolina University is one of the universities in the 16-campus University of North Carolina system.
LAMB: How many students do you have on campus?
YARBROUGH: Oh, over 16,000 students.
LAMB: And where did you go to school?
YARBROUGH: University of Alabama. I was one of those people who had an idea that he might go to school -- go to college a year or so and get a job in the bookkeeping department of a local plant. And I just kept going and going and I decided that I would like to teach at the college level, and though I was interested in law, I didn't think I wanted to teach in a law school. I thought it would be more fun to teach in a political science department, but focus on public law issues.
LAMB: When did you first get interested in John Marshall Harlan?
YARBROUGH: Actually, I got interested in writing a book on Harlan while I was researching a book on Justice Black. In the Harlan papers at Princeton, and also in Justice Black's papers at the Library of Congress, I found a good deal of correspondence. I found what I thought was evidence of a close personal relationship and one that I had heard hinted about and written about before. And when I learned that no biography of the second Justice Harlan had been done and his papers at Princeton were in excellent shape, I thought that I would at least give a try at writing a biography. He's, I think, a very influential justice.

There is a tendency, when one thinks of Warren court critics, to focus, as you mentioned earlier, on Felix Frankfurter. But we have to keep in mind that the most liberal period, of the Warren court, was the period from about 1962 to 1969, and Frankfurter left the court in 1962. In fact, it was Frankfurter's replacement with Arthur Goldberg that helped to give the liberal activist side, if you will, the votes needed to do all that the Warren court did in the '60s, in terms of criminal procedure rights, rights in the area of erotic expression, separation of church and state, reapportionment--all of those things. So I think that Harlan is a very significant figure. He may not have been the scholar that Felix Frankfurter was, but he was the critic on the court during the most productive period or activist period of the Warren court's tenure.
LAMB: You never know where to go with these because there's so much to talk about. I'm going to do something unusual. I want to jump to the end.
YARBROUGH: Sure.
LAMB: In the end, you have a whole scene in here where you have both Justice Hugo Black and Justice John Marshall Harlan at Bethesda Naval Hospital, and in the middle of all this is Justice Hugo Black's son. Talk a little bit about the end of their lives and what went on there at that hospital.
YARBROUGH: Well, I drew rather heavily for that not only on Harlan family members, but also on Hugo Black Jr. and the reminiscence of his father that he'd had. The two old gentlemen were at Bethesda Naval Hospital toward the very end of their lives. And I thought it was a very interesting relationship. Hugo Black had decided that he was going to die. The doctors assured him that there was nothing particularly wrong, that he could live on for several more years. But he had decided he was going to die and he was in a pretty dark mood. I don't mean that he was emotional; I simply mean that he was remote. He spoke only to the medical people and to his family. He did not want visitors. He did not want to try to make, if you will, the best of it. He had decided he was going to die and that was it. John Marshall Harlan, on the other hand, did everything he could to try and bolster the spirits of his colleague. They had often debated constitutional issues, such as the relationship of the Bill of Rights to the states. And he would try to entice Justice Black into those kinds of arguments. He was rarely successful, and Hugo Jr. says that he was probably disappointed that he wasn't able to bolster his friend's feelings.

Also, during this period, when he knew that Black was probably moving toward an announcement of his retirement, he wanted to delay his own retirement announcement an appropriate time so that the attention, properly, could be given to Hugo Black. He viewed Black as one of the greats of the court. Black had served 34 years on the Supreme Court. And it was, I think, just an indication of the sort of decent person Harlan was that he would talk with Hugo Jr. and with Justice Black's wife, Elizabeth Black, and try to get from them some sense of when the justice was going to retire so that he could delay his announcement until after that time. So a very moving episode in both their lives, I think.
LAMB: Well, how often would Justice Black and Justice Harlan vote together? Or maybe another way: how often would they not vote together?
YARBROUGH: Well, through the long term of the court, from '55, when Harlan went on with Black already there, to '71, they probably dissented a lot. Frankly, I don't have the statistics in my mind right now. But it is true that in the last years, in the mid- and late '60s, they were in agreement more often than they had been in the past.

You see, Justice Black's approach to the Constitution, and his attempt to base the Constitution on the language of the document not only meant that he handed down some pretty liberal positions, such as the view that there could be no obscenity controls and no libel controls over freedom of speech and freedom of the press; his approach also meant that the court would have a limit to the extent to which it could expand civil rights and civil liberties. And when the court began to go beyond what Black thought the Constitution's language and history required, then he began to dissent and sometimes -- not always, but sometimes -- he and Harlan would be together in dissent, taking, if you will, a conservative position on a particular civil liberties issue. Also, interestingly enough, at times, Harlan would be taking the more liberal position than Black, because Harlan's approach to the Constitution, while essentially a restrainist approach, which would limit the degree to which judges would exercise judicial review, was also an a rather flexible approach, which did allow judges to read into the Constitution rights that were not necessarily stated there.

One area that I might mention for illustration is the right of privacy area. In 1965, the Supreme Court held that the Constitution implies a right of privacy and it struck down a Connecticut law that prohibited the use of birth control devices, which was the famous Griswold case. Well, Justice Harlan not only joined that decision, but four years before, when the court, in another case, Poe vs. Allman, had dodged ruling on the constitutionality of the Connecticut law, Justice Harlan had gone on record as including that there is a right of privacy in the Constitution and that that law violated the right of privacy. Justice Black, on the other hand, dissented vehemently in the Griswold case, not only in print, but in the court that day when the decision was handed down.

So they voted more often together in the later years, but sometimes, when they were voting differently in the later years, it was Harlan, whom we think of primarily as a conservative -- he was voting the liberal position, and Black, whom many people consider a liberal activist, who was taking the conservative dissension.
LAMB: Anybody on the current court that served with John Marshall Harlan?
YARBROUGH: Only Justice White, Bryon White.
LAMB: What about Justice Blackmun?
YARBROUGH: Justice Blackmun came on the court -- yes, excuse me -- Justice Blackmun in '70, and Harlan left in '71.
LAMB: But just like a very short ...
YARBROUGH: Right. Blackmun and White -- I'm sorry. Through most of the Warren court period, the only carryover we have would be Justice White, but Blackmun, yes, came on in '70.
LAMB: You're sitting there with no notes and I have it written down in case you can't remember, but I thought it might be interesting to know some of the other justices that Justice Harlan served with.
YARBROUGH: Surely. Well, when he first came on the court, of course, Frankfurter was very important and Warren was important. And then Brennan was on the court, William Brennan, who would be a great liberal on the court through the Warren and Burger and some of -- much of the Rehnquist period. Those were some major figures. Some minor figures in the early days were people like Justice Whittaker, Justice Burton, figures of that sort.

In the later years, he became more and more isolated. White often voted, if you will, conservative with Harlan in the later years. But it became an overwhelmingly liberal court from about '62 on. There were people like Goldberg, and then Golberg was replaced by Fortas. You had Brennan, you had Douglas through the whole period -- and Douglas' position was typically liberal activist. So Harlan was more and more isolated during the later years.

One justice I haven't mentioned who was on the court through the late '50s and into the '60s and then on into the Burger court period was Justice Stewart. And Justice Stewart, who was somewhat more moderate, more likely to vote to uphold a civil liberties claim than Harlan, was pretty close to Harlan not only philosophically but also personally. I believe Justice Stewart was the only justice who was actually with Justice Harlan, for example, at the time of his death.
LAMB: He died what year?
YARBROUGH: Justice ...
LAMB: Harlan.
YARBROUGH: Harlan -- '71. He died -- you know, he had retired early in the fall, and then in late December he died.
LAMB: Justice John Marshall Harlan I, as you say in the book. There's no junior, by the way? I mean, Justice Harlan II wasn't a junior?
YARBROUGH: No, Justice Harlan's father, the second Justice Harlan's father, was John Maynard Harlan, who's an interesting personality himself, but the grandfather was John Marshall Harlan. And I remember -- I'm doing research now for a biography of the first Justice Harlan and I remember in some of my papers that when the second Harlan was born and was given the name John Marshall Harlan, which was now a name closely connected not only with the great John Marshall -- Chief Justice John Marshall -- but also with the great Justice John Marshall Harlan, who by 1899, when the second Harlan was born, had been on the Supreme Court for a long time and had established a very significant reputation. I remember when the second Harlan was born that one of the first Harlan's friends wrote him that this young man would have a difficult time living up to the name that he had been given, John Marshall Harlan.
LAMB: Why was John Marshall a great justice? And when was he Chief Justice Marshall?
YARBROUGH: Well, from 1801 till 1835, the first John Marshall was chief justice, and in part, I think he's considered a great chief justice because he was on the court for 34 years, just as John Marshall Harlan -- the first John Marshall Harlan -- was. In part, too, it was because the division of writing opinions of the court had not been set up so that Chief Justice Marshall often wrote for the court when the court was speaking, and consequently, some of the early extremely important decisions in American constitutional law were authored by John Marshall. Some of my introductory freshmen survey students get the impression that maybe there was only a Justice Marshall until the mid-1830s.
LAMB: Where was his grandfather from -- John Marshall Harlan I?
YARBROUGH: He was from Kentucky. Interestingly, he was the son of a Kentucky slave holder and he himself had a few slaves. They freed most of their slaves prior to the Civil War period or the period when federal law would absolutely have required it. And I said this is ironic because he, of course, was the only justice to dissent in the Plessy case.
LAMB: Which was?
YARBROUGH: The case that upheld the power of states to segregate the races. He dissented there. He said that the Civil War amendments had made ours a color-blind Constitution and he warned the court that they would come to regret that decision as much as the nation had come to regret the Dred Scott decision of the 1850s, which had held, among other things, that blacks were not citizens, could not become citizens of the United States. And Plessy was not an exceptional case for the first Harlan. He took a strong civil rights position in a lot of cases. And I hope to devote a lot of my biography of the first Harlan to attempts to explain his gradual change in not only judicial philosophy but political philosophy.
LAMB: Justice Harlan I and Justice Harlan II in the room together would agree and disagree on what things?
YARBROUGH: They would not, I think, agree on a lot. The first Justice Harlan believed that the 14th Amendment, which forbids states to take away the privileges and immunities of US citizens and to take away the life, liberty or property without due process of law, embodied the great guarantees of the Bill of Rights, the first state amendments. He believed in what the scholars called `total incorporation' -- that when the 14th Amendment was adopted, one intention of that amendment was to make all the guarantees of the Bill of Rights -- freedom of speech, freedom of the press, trial by jury, etc. -- fully binding on the state governments. Justice John Marshall Harlan II, through his entire career, challenged that view. Hugo Black took the total incorporation view, so he and Black often differed on that particular issue.

In the area of civil rights, in terms of race relations, I think they might have agreed on a good bit. Justice Harlan wasn't on the court when the first Brown decision of 1954 came down, but he was on the court for the 1955 decree decision in which the court remanded the school segregation cases back to the trial courts with the notion that they proceed with all deliberate speed to dismantle segregated schools. And so I think he and the first Justice Harlan were of a single mind on that issue and a goodly number of other race issues.
LAMB: Justice Harlan I was on the Supreme Court what years?
YARBROUGH: From 1877 until 1911-- 34 years.
LAMB: He was born in Kentucky and where did he go to school?
YARBROUGH: He was born in 1833 and he went to school in Kentucky -- Transylvania Center College.
LAMB: How did he get to the court? What was the political route?
YARBROUGH: Well, he, during the Civil War, fought for the Union. Even though he opposed emancipation as a federal decree, he fought for the Union. After the Civil War, he gradually moved into the Republican Party and became a Republican. And at the 1876 Republican National Convention, he brought Kentucky's delegation behind Rutherford Hayes at the key point so that Hayes got the nomination. Then when Hayes became president, though there was some delay in a reward for Harlan, Hayes ultimately nominated Harlan to the Supreme Court. Now in the Senate, there was some disagreement -- not the kind of heavily publicized hearings that we see today, but there was some disagreement that Harlan was a true Republican, truly committed to the goals of Reconstruction, but ultimately, the opponents were overwhelmed and he received a comfortable vote for confirmation. But as is so often the case, essentially his political ties to Mr. Rutherford Hayes had a good deal to do with his being selected for the position.
LAMB: This is the father, John Maynard Harlan. Where was he born?
YARBROUGH: He was born in Kentucky also, but after schooling at Princeton, he settled in Chicago. He was a Chicago lawyer. He was a member of the city council briefly in Chicago. He was a candidate for mayor -- never successful. In personality, he is quite different from the second Justice Harlan. The second Justice Harlan's personality is a very -- or was a very reserved personality, very discreet personality. He's an extremely cautious person. It's hard to read in his papers and find any personal hostility or personal gossip. He was so restrained and refined.

And I believe -- though try not to be a psycho-historian in writing these things -- I believe that some of Justice Harlan's restraint came from the fact that his father was such a bombastic personality. He had a hot temper. He was the kind of political candidate who, if challenged by someone in the audience, would invite the person to come up on stage to fight it out man to man. In part, because of that bombastic personality, in part because he dabbled so much in politics rather than paying close attention to his legal practice and building that practice up, relations between John Maynard Harlan, Justice Harlan's father, and mother, Elizabeth, were rather tense. They never divorced, but they were not together a good deal, as one of Justice Harlan's sisters put it. And I believe that the turmoil in the family, caused in part by the father's personality, may have had the effect of making John Harlan the kind of low-key, restrained, dignified person that he was. Some people would say it was that experience in Oxford as a Rhodes scholar and that sort of thing, but I think it probably went back in part to the father and the mother and their relationship, and some other incidents from the early life.
LAMB: The subject of your book, John Marshall Harlan II, was born where?
YARBROUGH: He was born in Chicago, 1881.
LAMB: How did he get out of Chicago and where did he go?
YARBROUGH: Well, very early on, he was sent away to Canada to prep school -- to boarding school, actually. He was too young, really, for prep school. He was sent away to boarding school, and from his sisters, I gathered that he was sent away in part because his father thought he just wasn't manly enough, he wasn't hard enough. And so his father wanted him to be sent to a boarding school where conditions were pretty spartan, and he selected one in Canada. And he -- after some period of real homesickness -- he thrived in the boarding school, and then from the boarding school, he went for his last year of prep school. He also went to prep school in Canada. For his last year of prep school, he went to the Lake Placid School in New York, in part so that he could associate with some of the children of major American families. And then he went to Princeton for his undergraduate work and then he went to Oxford for study on a Rhodes scholarship, but that wasn't the last of his formal education.

When he got back from Oxford, he had decided that he wanted to be a lawyer. And his sister Elizabeth's husband arranged an interview with him at Route Clark, which is now Dewey Ballantine, and one of the most prominent New York law firms, Wall Street firms. They wanted him, but they said that he hadn't gotten enough practical legal study at Oxford, and so in a year he took a two-year program of study at the New York Law School and passed the bar on the basis of that study. So he was at Princeton, he was at Oxford, but he was also at New York Law School.
LAMB: Where did he meet his wife?
YARBROUGH: They met at a party at Route Clark, a Christmas party. His wife's brother was a member of the firm there or a young associate there, and they met there. Interestingly, she was divorced at the time. She had been married to a very interesting man, and that marriage had not worked out and she was divorced, and it was not long after the divorce that she and Justice Harlan married. And Justice Harlan's daughter, Eve, shared with me a wonderful letter which Justice Harlan wrote to his mother to inform his mother that he was in love with Ethel Andrews and that they wanted to marry. And it's very interesting to read that letter because he moves along talking about what a wonderful person she is and then he broaches the sensitive subject, for that period of time -- we're talking about the 1920s -- the sensitive subject that she was divorced. But he did a beautiful job of that, and the mother did accept this and they were married, and they were apparently devoted to each other throughout their lives. You may want to touch later on Mrs. Harlan's illness during her last years and how Justice Harlan tried to cope with that.
LAMB: Why don't we go ahead and talk about it now?
YARBROUGH: Fine. For about the last seven years, I guess, of Justice Harlan's life, his wife, Ethel, apparently suffered from what now is generally labeled Alzheimer's disease. I'm not certain what it was called at that time. She would become lost in time and space. Sometimes she would be perfectly normal, sometimes not. And Justice Harlan couldn't bear the thought of having her institutionalized and so he simply had a nurse there in the home, as well as some other servants. And he did his best to stay with her through all the times that he was not on the court and he tried to shield her from the embarrassments that her condition would create or created, and I have a few little poignant examples of that in the book.

One morning, one of his clerks had stopped by to ride to the Supreme Court with him and they were all having coffee, and the conversation got around to first ladies. And someone asked about Jacqueline Kennedy and Mrs. Harlan said, "Oh, who is she?" And she was coming in and out of the conversation. She said, "Who is she?" And the clerk said that Justice Harlan paused for a while and then he said, very gently, "Oh, you know, dear, Janet Auchincloss' daughter." And so he dealt with that that way without embarrassing his wife. And there were other stories that others told me about the devotion to his wife. Apparently, Mrs. Harlan was -- even before the Alzheimer's -- not entirely happy with life in Washington. They had a country home in western Connecticut and she much preferred that. But as her condition worsened, it was very important that she be with him.
LAMB: His daughter and his only child took this picture.
YARBROUGH: That picture was furnished by her, but I would imagine that is an official Supreme Court photograph.
LAMB: When...
YARBROUGH: I wasn't able to locate the original source of that.
LAMB: When you set out to do this book, how many members of the family did you talk to directly and who were they?
YARBROUGH: I talked to the two sisters that I could talk to. His sister Elizabeth, at the time, was still living, but she was non compos because of age and senility, so I did not speak with her. But I talked to his sister Edith and his sister Janet. His sister Janet has since died. She died before the book came out, but I did get to talk with her. And I talked with Justice Harlan's daughter. I also talked with the longtime caretaker and gardener of their western home, John Twarda, and he provided me with a lot of anecdotal material. He viewed Justice Harlan as a father. He was very close to the family in the way that family retainers are often so devoted to the people that they serve, and he was quite helpful. I also was able to interview Paul Burke, who was Justice Harlan's black messenger through most of his tenure. I think Mr. Burke probably went with him around '57, '58 and maybe even a little earlier than that, but '57 is in my mind -- and he is still living and he was quite articulate. And he was able to give me some information, particularly about the last years of the justice's life. And then I interviewed over half, I guess, of his law clerks.
LAMB: Let me ask you about that, because on the back flap it says: "An incisive and searching book on the life and judicial philosophy of the most respected, conservative justice of our era. It merits wide and thoughtful reading," and this is signed out by Norman Dorsen, president of the ACLU, '76 to '91. Maybe it's me, but I was surprised then to find out that he was one of his clerks. How many liberals did he have as clerks?
YARBROUGH: Well, there were several. I hesitate to name different ones. Obviously, Norman Dorsen would not mind being labeled a liberal, but I hesitate to name the others, but there were several. I think, though, the way that Justice Harlan went about typically picking his clerks meant that there were going to be relatively few clerks who were not inclined from the first day to accept his judicial philosophy and approach to specific constitutional issues. This was because Justice Harlan, fairly early on, started using the recommendations of his earliest clerks as a basis for picking clerks.

Paul Bator, who was, for a long time, at Harvard Law School, was one major source. In fact, I remember in one letter Harlan wrote to Bator during the time Harlan was considering selection of clerks for a term, he mentioned that he had enjoyed meeting the young man, but he said, "Of course, I told him that the decision would be yours." That is that Mr. Bator would be the one who ultimately decided who the clerks would be, and Bator and most of the other relatively early clerks were fairly conservative and restrainist in their positions.

Another of Harlan's clerks who has achieved some public prominence as well as scholarly prominence is Charles Fried, who was solicitor general during Reagan's administration and has written widely on the court and constitutional law. And Professor Fried said that the clerks he served with and most of the clerks that he knew that Harlan had had come up under, essentially, the kind of professors and training that would move one in the direction of thinking in terms of self-restraint, a limited role for judges in terms of the judicial process.
LAMB: Is the Charles Nesson the same Charles Nesson we see on the public television shows?
YARBROUGH: Yes.
LAMB: And he was a clerk?
YARBROUGH: Yes. And ...
LAMB: And what does he do now?
YARBROUGH: He's at Harvard. He's a law professor.
LAMB: And these people all -- you talked to them?
YARBROUGH: Yes.
LAMB: Interviewed them?
YARBROUGH: Right. Right.
LAMB: You also have in here a picture and it shows -- tell me if I'm wrong -- this is Mrs. Harlan?
YARBROUGH: Yes.
LAMB: This is his daughter Eve?
YARBROUGH: Right.
LAMB: This is his granddaughter?
YARBROUGH: Right.
LAMB: And this is the the first son-in-law?
YARBROUGH: Yes, Wellington Newcomb -- Duke Newcomb.
LAMB: Would you tell that story?
YARBROUGH: All right. Well, he was Justice Harlan's first son-in-law and that marriage ended in divorce, but the Harlans remained very close to Duke. He's a charming man and quite a bright man, too, and they remained very, very close to him. At one point, he was attempting to establish a solo practice in New York, and one of Justice Harlan's friends -- I'm sure, thinking that he was doing a service for the family -- sent out a memorandum letter to the prominent law firms in New York asking if they'd direct business, to the extent they could, to Mr. Newcomb's practice. And when Justice Harlan got a copy of this memo, he was very embarrassed and he asked Leo Gottlieb, the lawyer and friend who had done this, to please cancel the arrangement and make it clear to everyone that he would not want to have his name associated at all with this kind of effort and so that's what was done. I assume that's what you mean by the story.

Actually, Mr. Newcomb, I believe, had no idea that this was going on either. I think this was just an attempt by a friend of the justice's to try to help the justice's son-in-law. I don't think there was any attempt there to get closer to the justice or to have these lawyers ingratiated in terms of the justice at all. But he saw it as a problem from an ethical standpoint.
LAMB: Did you bring to this a -- your personal philosophy or political philosophy that either matched Justice Harlan or was opposite of that?
YARBROUGH: Well, in terms of the approach to constitutional interpretation that I generally accept, I tend to line up with Justice Black. In fact, I wrote a book on Justice Black and his critics which essentially was a defense of Black's position. Black, remember, felt that the Constitution should be interpreted to the extent possible, literally and according to historically intended meaning. And Justice Harlan certainly did not think that way. Politically, too, I'm a yellow-dog Democrat, a liberal Democrat with that kind of background. Justice Harlan was from a Republican family and was a prominent Republican. He was a Wall Street lawyer representing powerful figures such as the du Pont brothers through his career before he went on the court.

So in many ways, we were probably very different, but I always had a great admiration for Harlan. I had an admiration for the style of his opinions and the degree to which he could write internally consistent opinions and opinions that I thought very persuasive, even though politically and philosophically we might have differed. Also, I had some sense before starting the project that this was a very decent man, a very fine human being. Part of that may have come from information I had about his relationship with Hugo Black, a person I strongly admired, during their last years, but part of it came from other sources, too.

Norman Dorsen, you mentioned earlier, is one of his liberal cohorts. Norman Dorsen said that the entire year he was with Justice Harlan, he never heard Justice Harlan make one negative personal comment about anyone. He might make comments about the position someone was taking, that sort of thing, but he never heard one negative, gossipy comment or other negative comment. And that certainly would not be the case with a lot of the other justices.
LAMB: There was a time, though -- and you write about it -- I don't know that I can find it, I marked it off -- where there was a difference of opinion -- personal difference of opinion -- between Chief Justice Earl Warren, an exchange of correspondence?
YARBROUGH: Yes. Now, some people have suggested I tended to underplay this in the book because I didn't have a lot of evidence. But some people suggested that Harlan did not have that much respect for Earl Warren, that he thought that Earl Warren tended to take a position based too much on his own personal notion of what is fair, what is moral, and he had trouble with that. And on one occasion, Harlan, at the time a decision was being announced in open court -- and this was around the time Warren was getting ready to leave the court -- mentioned that this issue was not dead, that there would be other terms of the court and other considerations of this particular issue. And Warren sent him a sharp note to the effect of, "I got your message loud and clear." Well, Harlan was really stricken by this, and he did everything he could to try to patch relations with Warren.
LAMB: Let me read it...
YARBROUGH: Please do. Please do.
LAMB: It says -- he wrote this note after the Chief had written him a note?
YARBROUGH: Right.
LAMB: Right away.
YARBROUGH: That's right.
LAMB: "I'm distressed to learn that what I said in Jenkins" -- that's the case...
YARBROUGH: Right.
LAMB: "...this morning gave you offense. Nothing could have been further from my mind than what your note conveys. I sincerely regret that anything I should say should have lent itself to misinterpretation and ask you to accept my apologies." Then there was another note that came back, I guess, from the chief then. When Harlan read The Washington Post account of his remarks the next morning -- now this was a further irritation here .... He was even more distraught. "As we approach the new term," said Harlan in an ad-libbed reference to the passing of the Warren era The Post had reported, "I hope we can examine again the problems of when to apply new constitutional doctrines to old cases .... My distress over your note yesterday," he assured the chief justice, "is enhanced by this morning's Washington Post treatment of my Jenkins announcement." It goes on and on. Now how much of that kind of thing, have you found, goes on between justices?
YARBROUGH: Well, there are, of course, problems among the justices and papers of justices reveal that. Also, the clerks are willing to comment and what some are willing to comment would reveal that. The book "The Brethren," the journalistic treatment of the court, gave a lot of anecdotes along those lines. But in Harlan's case, I think there was less of that than with most justices, and it depended very much on the justice. Now Felix Frankfurter was notorious for engaging in court intrigue, not only trying to influence other justices and their clerks to think a certain way but also simply engaging in gossip. I think part of it was just Frankfurter's own personality. He was just fascinated by every aspect of the court, the personalities and all of that. Some others were just not inclined to get roped into it. Hugo Black, for example, wasn't as inclined. I believe Justice Black was a stubborn man. He could be very hard to debate in the court conferences. Once he took a position, it was hard to get him to budge, but he and Harlan and certain others weren't as likely to become involved in the bickering that sometimes has occurred on the courts.
LAMB: Small personal things. At one point you write about his interest -- I mean, something about his wife being away and he was into three martinis and chain-smoked cigarettes. How much of the personal stuff were you able to get?
YARBROUGH: A good deal of that. Justice Harlan's diet was a source of concern to his family. Also, the fact that he was a chain-smoker of cigarettes did not help. And on that one occasion, his wife was going to be away for the evening and she left a nutritious meal all prepared for him so that there would be no problem. And when she got back and asked what he'd had, he had had some boiled eggs and martinis instead of what she had left him.

And I did get into that sort of thing a good deal, particularly with regard to the problems he had with his eyesight in the last six or seven to eight years of his life. He just became increasingly blind, and toward the very end of his career, he was almost entirely blind. Now what the court did to try to deal with this was to give him an extra clerk so that the clerk could do a good bit of reading to him. He also experimented with various kinds of magnifying glasses. He worked up huge charts of cases that he would take into conference with him so that he could write out his own notes about what was done in conference of the justices in wording that he could, but it was still a problem. On the other...
LAMB: How many hours a week did clerks read to him at the end?
YARBROUGH: Toward the end, according to one clerk, around 60 hours a week they were spending on reading to him because he simply wasn't able to digest the material with his own eyesight and he was not willing simply to let them summarize a lot of it. He wanted it read to him. So it was a terrific problem, but he took it with good humor. Paul Burke, his messenger, mentioned -- and I believe I have this in the book -- that one morning they were getting ready to leave for the court and he heard -- Paul Burke heard the justice say, "Good morning," to someone and he hadn't noticed anyone at all on the street. And then the justice said, "Damn, Paul, I just said 'good morning' to a tree." But it didn't bother him. He took that kind of thing with good humor and, I thought, handled it as well as he could possibly have.
LAMB: In the end, his death was because of what?
YARBROUGH: Cancer.
LAMB: And you also recount that scene about going to the hospital, getting one diagnosis and having to wait for another. Would you tell that story?
YARBROUGH: Yes. He, for quite a while, had been experiencing a lot of pain, and doctors, as doctors will do, diagnosed all sorts of things. At one point, some concluded that one leg was shorter than the other and they tried to work with that. They did all sorts of things. Finally, he went in for tests at Bethesda Hospital and they were running a variety of tests on him. And at one point, he got so frustrated with them that he moved to George Washington Hospital. They went through a day of fairly excruciating tests and then they lost the material.
LAMB: They lost the tests.
YARBROUGH: And they were going to have to do it again. Right. They lost the tests. And he told Hugo Black Jr. that if any young member of his law firm had done that he would be discharged immediately, and he was going to leave Bethesda and go to George Washington. Of course, Hugo Black Jr. And Mrs. Black tried to dissuade him because they had been able to look in on him regularly. They were there daily looking after Justice Black and they had been able to look in on him, but they said they also were going to miss him because his spirit was so strong. In fact, I feel that Hugo Black Jr. had wished that his father could have had a more positive outward attitude of the sort that Justice Harlan did during his last days. But I think, knowing something about Justice Black, that Justice Black had just decided that he was dying, he was going to be dead in just a matter of time. He wasn't happy with that and he wasn't going to pretend to be happy. On the other hand, he wasn't complaining and moaning. He just said, "This is the way it's going to be."

Now they kept Justice Black from -- his family kept Justice Black from announcing his retirement for a while by a ploy that was rather interesting. Justice Black was one of those justices who believed that justices should not leave behind their conference notes, the notes that they take in the justices' secret conference in which they discuss cases. And Hugo Jr. convinced Justice Black that unless all those conference notes were taken out of his files and burned before he died, then there might be a chance that they would not be destroyed. And so they were able to delay his announcement of retirement for a while on that ploy, but finally, when that was done, then he announced it. This meant, though, that Justice Harlan had to delay for some time announcing his retirement because of the desire that he had to wait until Black had retired and that press attention and other attention had been given to that retirement before Harlan announced his retirement.
LAMB: Have you ever met any of the justices?
YARBROUGH: I met Justice Black and I interviewed Justice Black. I did not have the occasion to meet Justice Harlan. I interviewed Justice Rehnquist at one time. In fact, we had an interesting interview and I wrote a manuscript for an article on him. And I sent it to him and he wrote back that he appreciated my comments, thought that they were accurate, etc., but he would prefer that there be no quoting or reference at all to the interview. So I have it in my file, but he rarely grants interviews and he simply decided that that particular interview he preferred not to become part of the public record.
LAMB: Did that frustrate you?
YARBROUGH: No. I don't think it did at all. In fact, he told me at the time that his ground rules might --for the interview -- might not be to my liking. He never mentioned the ground rules, though, until after the interview. But you know, I abided by that, and certainly, it was a learning experience for me to have the chance to interview him., because he was a very candid person -- this is Justice Rehnquist -- Chief Justice Rehnquist.
LAMB: What's the rules, though, on when that stuff can be made public?
YARBROUGH: Well, obviously, once a person is dead, but my own feeling is that I would want to get his permission at some time down the road, if he retires, that sort of thing. And then I would want --obviously -- to interview him again, because this has been quite a while, before he became chief justice, so we're talking about a long time. So...
LAMB: At the confirmation hearing for Justice David Souter, he mentioned John Marshall Harlan as his -- I don't know whether he said idol, but he was his ...
YARBROUGH: Model.
LAMB: Model.
YARBROUGH: Yeah. Right.
LAMB: What about Justice Harlan II made him a model for Justice Souter?
YARBROUGH: Well, I think that justices in the Souter mold are impressed with Harlan's regard for separation of powers and judicial deference to the other branches of government, for Harlan's regard for federalism and judicial respect for state and local governments. I imagine that someone like Souter would also tend to favor a fairly limited interpretation of civil liberties and interpretations of civil liberties that would be very closely aligned to the facts of individual cases so that no one precedent had that much effect on later cases and how the judges would decide later cases. And then I think in general someone like Souter would simply feel that this type of judge, like a Justice Frankfurter, had the proper view of the role of courts.
LAMB: In your preface, you have these statistics: "During his 16 years on the Supreme Court, '55 to '71, a tenure less than half the length of his illustrious grandfather's, Harlan II wrote 613 opinions, more than any other justice of his era. One hundred and sixty-eight were opinions for the court and 149 were concurrences, but nearly half, an impressive 296, were dissents." We're running out of time. What conclusion did you have about the dissenting process? Is it worth all of that writing? And if it is, what is it worthy of?
YARBROUGH: I think it is. Different chief justices have had different views on this issue, and at some times in the past, dissent has been discouraged. There's been a feeling that the court's decisions will have more impact if dissenters either don't dissent or don't express their views and opinions. My own feeling, though, is that it's very healthy. And, of course, the dissents of Justice Harlan are now being quoted with some frequency on the Rehnquist court as justifications for particular interpretations of the Constitution. So I think though he was a lonely figure in the latter part of the Warren years that his decisions did have an impact not only then but they may be having an impact now.
LAMB: When is your book on Justice Harlan I due out?
YARBROUGH: I am just in the research on it. I won't start writing for probably another year or so, so it -- we're talking about several years. It is likely, though, that one or two other books on the first Harlan will be coming out before then. For a long time, one scholar had exclusive rights to the papers and no book came out of it, but they were held up. And then when this exclusive right was lifted -- for a time I think scholars had sort of lost interest in the first Harlan, but now there seems to be a resurgence of interest, so I hope we'll see several books on the first Harlan.
LAMB: The best thing somebody can say about your book?
YARBROUGH: Oh, my goodness. It's the first biography of Justice Harlan and the subject, I think, is one of the great figures of court and too often neglected -- too often neglected.
LAMB: This is what the book looks like and our guest has been Professor Tinsley E. Yarbrough, who is a political science professor at East Carolina University, and the name of the book is "John Marshall Harlan" -- that's Harlan II -- "Great Dissenter of the Warren Court." Thank you very much for joining us.
YARBROUGH: It's been a pleasure.
Copyright National Cable Satellite Corporation 2004. Personal, noncommercial use of this transcript is permitted. No commercial, political or other use may be made of this transcript without the express permission of National Cable Satellite Corporation.