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Xerox University Microfilms 300 North Zeeb Road Ann Arbor, Michigan 48106 J 76-9981 J i I I HOWARD, Lowell Bennett, 1925- f | MR. JUSTICE JOHN MARSHALL HARLAN AND THE SUPREME COURT, 1955-1971: A STUDY IN I FEDERALISM AND JUDICIAL SELF-RESTRAINT. ) The Ohio State University, Ph.D., 1975 I i Political Science, general | I i i ! ! i ' Xerox University Microfilms, Ann Arbor, Michigan 48ioe i THIS DISSERTATION HAS BEEN MICROFILMED EXACTLY AS RECEIVED. MR. JUSTICE JOHN MARSHALL HARLAN AND THE SUPREME COURT, 19 55-1971: A STUDY IN FEDERALISM AND JUDICIAL SELF-RESTRAINT DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By LOWELL BENNETT HOWARD, B.A., M.A., J.D. **#*•«• The Ohio State University 1975 Reading Committee: Approved By Lawrence Baum • "7 Lawrence J.R. Herson Adviser Randall B. Ripley Department of Political Science ACKNOWLEDGEMENTS I wish to express sincere gratitude to my adviser, Professor Lawrence J.R. Herson, and to the other members of my reading committee,, Professors Lawrence Baum and Randall B. Ripley. They have been helpful with their suggestions and, above all, their kindness, patience and cooperation have been most supportive in the completion of this endeavor. ii VITA February 12, 1925 Born - New Boston, Ohio 1947 B.A., Bowling Green State University, Bowling Green, Ohio 1949 LL.B. (J.D., 1967), The Ohio State University, Columbus, Ohio 1954 M.A., The Ohio State University, Columbus, Ohio 1955-1971 Assistant Professor, Associate Professor, Pro­ fessor of Law, Ohio University, Athens, Ohio 1971-present Judge, Common Pleas Court, Athens County, Ohio SELECTED PUBLICATIONS "Negotiability Requirements Under the Uniform Commercial Code," American Business Law Journal, Vol. 2, No. 3 (Fall, 1964), 257-68. Business Law: An Introduction. New York: Barron's Educa­ tional Series, Inc., 1965. 591 pp. "Due Process and Student Discipline in Ohio Higher Education," co-author, Ohio Bar, XLIV (February 1, 1971), 129-39. "The Probationary Professor and the Constitution," co-author, California Western Law Review, Vol. 8, No. 1 (Fall, 1971), 1-74. "A ROR Program in a University Town," co-author, American Bar Association Journal, Vol. 58 (April, 1972) , 363-66. iii FIELDS OF STUDY Major Field: Political Science American Government and Institutions. Professors Francis R. Aumann and Randall B. Ripley Comparative and Foreign Government. Professor Philip D. Stewart Politics, Political Behavior, and Political Processes. Professors Thomas A. Flinn and C. Richard Hofstetter Minor Cognate Field: Economics Labor Economics. Professor Glenn W. Miller iv TABLE OF CONTENTS Page ACKNOWLEDGEMENTS ii VITA iii INTRODUCTION 1 Chapter I. FEDERALISM, REPRESENTATION AND POLITICAL EQUALITY 26 II. FEDERALISM AND CRIMINAL PROCEDURE 105 III. FEDERALISM AND FREEDOM OF EXPRESSION: THE OBSCENITY CASES 181 IV. CONCLUSION . , 235 APPENDICES 252 A. 252 B. 256 C. 258 BIBLIOGRAPHY 259 v INTRODUCTION This dissertation represents an effort to interpret analytically and critically the contours of the constitu­ tional doctrines of federalism and judicial self-restraint in the American polity as explicated in selected judicial opinions of Mr. Justice John Marshall Harlan during over sixteen years of service on the Supreme Court of the United States as an Associate Justice. The constitutional arenas within which the opinions of Harlan have been selected for this study include, in the main, political representation, criminal procedure and freedom of expression. Evidence is now available in the form of evaluations by Supreme Court observers and scholars that history is expected to accord to Harlan a prominent place among the Justices of the Court, alongside his illustrious grandfather and namesake, the first Mr. Justice John Marshall Harlan.1 *A recent study ranked the second Justice Harlan along with fourteen others in the "near great" category of Supreme Court Justices based on expert evaluations of the ninety-six Supreme Court Justices from the beginning of the Court up to just prior to the appointment of Chief Justice Warren E. Burger in 1969. Twelve Justices, including the first John Marshall Harlan, were ranked "great" based on the ratings given by sixty-five law school deans and professors of political science, history and law. Albert P. Blaustein and Roy M. Mersky, "Rating Supreme Court Justices," American Bar Association Journal. 58 (November, 1972), 1183-89. 1 2 During his service on the Supreme Court from 1955 to 1971, the second Harlan wrote a total of 613 opinions,2 more during his tenure than any other Justice who served with him, of which 168 were opinions for the Court, 149 were con­ curring opinions and 296 were dissenting opinions.3 Because Harlan frequently disagreed with the most significant doc­ trinal innovations made by the majority of the Warren Court,** he was a restraining force during a period of judicial ferment and rapid change. He has been characterized as being a conservative conscience to a highly active court.5 zHarlan's opinions as a Supreme Court Associate Justice are published in volumes 349 to 403, inclusive, U.S. Reports, and his opinions are tabulated in Appendix C of this dissertation as opinions of the court, concurring opinions and dissenting opinions. 3Harlan's grandfather, the first Justice Harlan, frequently disagreed with his majority brethern on the Supreme Court. He is often referred to as the "Great Dis­ senter" and the only Justice who dissented in the landmark case of Plessy v. Ferguson, 163 U.S. 537, 552 (1896), which established the "separate but equal" doctrine in regard to public schools and was not overruled until Brown v. Board of Education, 347 U.S. 483 (1954). ''The Warren Court appellation is used here, and throughout this dissertation, to denote the U.S. Supreme Court during the period of Chief Justice Earl Warren's tenure, 1953-1969. Warren's leadership of the Court in a libertarian, activistic approach to public law and personal rights earned him a rating of par excellence as Chief Justice--second in greatness only to John Marshall, Blaustein and Mersky, op.cit., n. 1, p. 1. 5Norman Dorsen, "The Second Mr. Justice Harlan: A Constitutional Conservative," New York University Law Review, 44 (April, 1969), 249-71. 3 Harlan's restraintist role became especially apparent during the years following the retirement from the Court in 1962 of Associate Justice Felix Frankfurter, with whom he shared many of his judicial convictions. Upon naming Harlan for appointment to the Supreme Court as the eighty-ninth person to sit on the high bench, President Eisenhower said that his "qualifications for [the post of Justice] are of the highest. Certainly they were the highest of any I could find."6 Editorial comment in the nation's press applauded the nomination of Harlan,7 and law review writers praised his qualifications for membership on the Supreme Court.8 When the death of Associate Justice Robert H. Jackson in 1954 created a vacancy on the Supreme Court, it was reported that President Eisenhower said he would nomin­ ate a member of the judiciary for the position.9 This inten­ tion was in response to criticism at the time from the legal establishment of appointments to the high bench of persons 6New York Times, Feb. 3, 1955, p. 12, col. 5. 7E.g., Editorials, New York Times, Feb. 3, 1955, p. 22, col. 2; March 10, 1955, p. 26, col. 2. 8Arthur Ballantine, "John M. Harlan for the Supreme Court," Iowa Law Review, 40 (Spring, 1955), 391-99; Edward L. Friedman, Jr., "Mr. Justice Harlan," Notre Dame Lawyer, 30 (May, 1955), 349-59; W.N. Seymour, "John Marshall Harlan," New York Law Forum, 1 (March, 1955), 1-10. 9New York Times, Nov. 14, 1954, Sec. 4, p. 2, col. 6. 4 with no prior judicial experience. Since Jackson was from New York, there was further speculation that a New York Republican would be named, thus fulfilling President Eisen­ hower's desire to restore political balance to the Court.