Josh Blackman » Justice Harlan v. Justice Sotomayor on being in the dissent

Justice Harlan v. Justice Sotomayor on being in the dissent

August 27th, 2010

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.