Aug 27, 2010

Posted in Harlan

Justice Harlan v. Justice Sotomayor on being in the dissent


Justice John Marshall Harlan on being in the dissent:

“Of course I am wrong, because only the Chief Justice, and myself held those views, and as the majority decided the other way, we must believe that we were wrong.”

Justice Sonia Sotomayor on being in the dissent:

“I do think I was right,. I think the (majority) were wrong.”

Denver Post, H/T BLT.

Update: Thanks to Instapundit for the link! I have received several requests for more information about the Harlan quote.

This quote was made by Justice John Marshall Harlan I (the namesake of the Harlan Institute). Harlan taught taught constitutional law at George Washington (then Columbian) law school in the late 19th and early 20th century. One of his enterprising students transcribed the lectures verbatim. The student had the notes typed up, and mailed them to the second Justice Harlan.
While in Professor Davies’ legal history class, I copied and scanned all 700 pages of Harlan’s lecture notes at the Library of Congress.
As far as I know no other copy of these notes exist. I wrote a short paper at the time, available here.
I am in the process of transforming these lecture notes–which are a veritable treasure trove–into a law review article. It should be ready for submission in the very near future. Articles editors… you know how to reach me: )
The context of the above quote is fascinating. Harlan was talking about United States v. Wong Kim Ark. Harlan was quite adamant that Chinese people were not eligible for birthright citizenship. On 5/7/1898, about 1.5 months afte the case was decided, Harlan discussed the opinions. He spent little time explaining the majority, and focused primarily on the dissent he joined. He ended with the quip about being wrong.
“Of course I am wrong, because only the Chief Justice, and myself held those views, and as the majority decided the other way, we must believe that we were wrong.”
He used similar lines at several points in his lecture notes.

He made a similar remark on 3/19/89 when talking about his dissent in Elk v. Wilkins:

“I had the misfortune to differ from the court upon that question, and of course I was wrong.”

On 4/16/1898 he made this comment about his dissenting opinion in Hurtado v. California:

“My own view was that it was not competent for a state, since the adoption of the fourteenth amendment, to proceed against any man for his life except by indictment of a grand jury. Now presumably I am wrong, because I stood alone, and the law must be held otherwise.”

In light of the comments in the thread, I think it is fairly obvious Harlan was joking. Harlan was always gracious and respectful to the Court. I think the comment was made with humor rather than sarcasm, and exemplified his collegiality towards his colleagues, even if they disagreed with him.

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  • http://lawafterthebar.wordpress.com/ The Writer

    RO the freakin’ FL.

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  • http://Website Thalia

    Justice Scalia on the dissent: The Court’s intervention in this military matter is entirely ultra vires.

  • http://Website steve rappoport

    Justice Harlan may have SAID that he was wrong, but that was merely a rhetorical device. If he actually believed that he was wrong in the position that he was taking, he would have changed it. Nobody who dissents believes himself wrong.

    • http://www.wasitsomethingisaid.blogspot.com Michael Reinhard

      I agree with you. I think he was being sarcastic. I am reminded of Tocqueville’s thoughts on the tyranny of the majority:

      Moralists and philosophers in America are not obliged to conceal their opinions under the veil of allegory; but, before they venture upon a harsh truth, they say, “We are aware that the people which we are addressing is too superior to all the weaknesses of human nature to lose the command of its temper for an instant; and we should not hold this language if we were not speaking to men whom their virtues and their intelligence render more worthy of freedom than all the rest of the world.” It would have been impossible for the sycophants of Louis XIV to flatter more dexterously.

  • http://Website Tom Rigid

    Nothing quite so circumlocutory as a dissenting WASP.

  • http://Website Brian Macker

    John Marshall Harlan was either being sarcastic or was being an idiot for that moment.

  • http://Website Dmitry

    IMHO, Sotomayor wins for honesty.

  • Mike

    Harlan said this to the conlaw class he was teaching from 1897-98. One can certainly imagine it being said with a tinge of sarcasm. But, in the context of teaching, it would be wrong to presume he was being dishonest.

  • http://Website Don Kilmer

    Consider the possibility that Harlan and Sotomayor spoke “inaccurately” and that equivocation of the statements is an example of dropped context.

    Assuming Justice Harlan wasn’t being sarcastic, he may have been saying: “Our system of constitutional government means — when I am in the minority, but still believe I am right, I can say so; but I still have a duty as a citizen (judge?) to support the policy that prevailed.”

    Assuming Justice Sotomayor wasn’t just being petulant, she may have been saying: “We all have a duty to say what we think is right, even when our position does not carry the day.”

    If I am correct, then both deserve praise for intellectual courage. I find debate more constructive when we give our adversaries the benefit of the doubt, until/unless they prove unworthy.

  • Arty

    This explains the different conclusions.

    “a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

  • http://Website ed

    I believe Harlan said what he said because he applied a truth to his circumstance that is missed by most of us, that is, “A pitch is a strike not because it passed over home plate at a height above the batter’s knee and below chest but because the umpire called the pitch a strike.”

    Would that so many more of our fellow citizens were so enlightened.

  • http://Website angry pelican

    Sootomayor wins nothing. She joins a Supreme Court in an increasingly balkanized country where we we turn our backs on judges like Bork with a clear judicial philosophy for judges with a vague and humanistic view of the law. Whatever feels good, whatever seems to fit the narrative takes precedence over hard legal analysis. She’s the perfect example of why I thought that so much of law school was nonsense. It’s changed from years of the Civil Code or common law precedence to whatever works anecdotally for the ruling elite. Hey, it’s groovy with the wise latinas somehow being visited with divine inspiration. A few more years without the Borks and no one will take it seriously.

  • http://Website brooding omnipotence

    Don’t forget, JMH I flourished at a time when people actually believed that “the law” was an objective reality that appellate judges discovered piecemeal like scientists proving hypotheses. Under that theory, a dissenting judge really *was* wrong. Nobody believes that anymore.

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  • http://Website Ferramentas de Poker Grátis

    Olá:), o meu nome é Isabel estudo Engenharia Civil e gostei muito da tua página! Muito bonito muito bem!
    Adequa-se imenso tudo aquilo que aqui observei.Hoje por vezes tanto para expressar nos blogues!Nada nada mais gostoso do que implementar a nossa escrita na net!
    Bye Bye :)

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