The Dissenter

"These decisions give support to a current mistaken view of the Constitution and the constitutional function," said Justice John Marshall Harlan. "This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional 'principle,' and that this Court should 'take the lead' in promoting reform when other branches fail to act.

"If the time comes when this Court is looked upon by well-meaning people --or, worse yet, by the Court itself--as the repository of all reforms, I think the seeds of trouble are being sown for this institution.''

Justice Harlan, in this instance, was addressing himself to the court's redistricting ruling (TIME, June 26), but his scarcely concealed scorn could apply to much of the Court's recent activity.

Harlan's frequent dissents are his creed; he is the disciple of judicial restraint on a court that he finds increasingly willing to reshape just about everything that comes to its attention. In the judicial year that ended last week, Harlan wrote 20 dissenting opinions, twice as many as any other Justice. The year before, he wrote 22 dissents. Sometimes Harlan is supported in them by Justices White, Clark and Stewart, but he is regularly beaten by the five so-called "activists": Chief Justice War ren and Justices Douglas, Black, Brennan and Goldberg.

Harlan, now 65, might have come to his contrariness by inheritance; he is the grandson of the first Justice John Marshall Harlan (1833-1911), the Supreme Court's "Great Dissenter" (316 dissents in 33 years). But Harlan's opposition to Court trends stems, in fact, from his belief that a judicial decision must be based on "uniformly applied legal principle, not on ad hoc notions of what is right or wrong in a particular case." The main difference between Jus tice Harlan and the rest of the court, says a former Harlan law clerk, is that he "is confined by what he considers his limited role, which is to apply statutes as he thinks Congress meant them."

The role of the dissenter seems not to be a happy one. Court observers notice that Harlan reads his opinions in an increasingly snappish tone. But he has never yet let his displeasure with the majority's reasoning disturb his own judicious approach to cases he is considering. Last month when Harvard University honored him with a doctorate, it saluted him as "a judge's judge."

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