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Bruce Ackerman and Charles Fried's rich essays address the subject of Justice Harlan as a conservative. One who comes to this topic has in mind questions like: Was Justice Harlan a conservative? If so, what kind of a conservative was he? How did his judicial actions exemplify a conservative approach? Most importantly, is his conservatism an appealing model for modern judicial practice?

Professors Ackerman and Fried's slices on this topic reflect their own casts of mind and philosophies of judging. Fried looks at a broad range of Justice Harlan's opinions and sets them against particular conservative qualities that Fried commends. He manages a few acerbic swipes at those who have failed to exhibit these virtues, most notably Justice Douglas. Ackerman presents a contrast of two grand themes, two fundamentally opposed approaches to constitutional adjudication. Justice Black, with his expressed views somewhat improved by constructive re-creation, is revealed as an Ackermanian hero who begins with big general ideas and works down; Justice Harlan's common law approach to constitutional decision making is shown to have grave defects. Although Ackerman's final paragraph says he has not "done much more than express some doubts" about Harlan's method, no reader will fail to grasp Ackerman's own strong commitment to the contrary approach.

What is a conservative judge? Wisely perhaps, neither Fried nor Ackerman take this question head on. But I think that facing it allows one better to understand Justice Harlan's place and how the two essays relate to him and to each other. Distinguishing conservatism in basic social philosophy, conservatism in politics, and conservatism in judging is a helpful start.


Judges | Law | Supreme Court of the United States