Shapiro, David L.

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Justice Harlan and Justiciability: Notes on Two Dissents

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NYLS Law Review Volume 36 Issue 1 Article 19 January 1991 Justice Harlan and Justiciability: Notes on Two Dissents David L. Shapiro Harvard Law School Follow this and additional works at: https://digitalcommons.nyls.edu/nyls_law_review Recommended Citation David L. Shapiro, Justice Harlan and Justiciability: Notes on Two Dissents, 36 N.Y.L. SCH. L. REV. 199 (1991). This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Law Review by an authorized editor of DigitalCommons@NYLS. JUSTICE HARLAN AND JUSTICIABILITY:NOTES ON TWO DISSENTS*DAVID L. SHAPIRO**The last time I had a few hours to call my own-and an opportunityto think about my remarks today-was just two weeks ago, while theannual Cherry Blossom parade was passing by my window at theDepartment of Justice. Unfortunately, at that time I had not yet receiveda copy of the papers delivered today by Martha Field1 and CharlesNesson.2 And so I decided to take advantage of my ignorance and to thinkabout what I would like to say on the subject of this panel discussion forthe ten minutes or so that I have the floor.Looking back, I feel blessed that I had this chance, both because itwas so enjoyable to think about these issues without constraint, andbecause now that I have heard what Professors Field and Nesson had tosay, I realize it would be folly to try to embellish on their research ortheir insights. (I might add, though, that while my remarks relate only* Presented at the New York Law School Centennial Conference in Honor of JusticeJohn Marshall Harlan (Apr. 20, 1991).** Professor of Law, Harvard Law School.At the time these comments were delivered, I was Deputy Solicitor General, UnitedStates Department of Justice. Needless to say, the views expressed are my own, and notnecessarily those of any of my various employers.A brief personal note, prompted by the remarks of Tinsley Yarbrough and CharlesNesson about the relationship of Justices Harlan and Frankfurter- Professor Yarbroughreports that, after the retirement of Justice Frankfurter, two Harlan law clerks went to seehim, at Justice Harlan's request, and when the two clerks arrived, Justice Frankfurter askedthem to take notes on the subject of legislative reapportionment. See Tinsley E. Yarbrough,Mr. Justice Harlan: Reflections of a Biographer, 36 N.Y.L. SCH. L. REV. 223, 230(1991). I was one of those clerks, and I vividly recall the visit. Justice Frankfurter,crippled by a stroke that followed hard on the heels of-and some say was caused by-theCourt's decision in Baker v. Carr, 369 U.S. 186 (1962), spoke of the decision with bothanger and contempt. But despite his anger, and his physical weakness, he found the timeand energy to ask about our hopes and plans, and to give us some advice (among otherthings, he told me not to teach in California because the weather there was too lovely forserious scholarship).The visit was just one remarkable experience in a very remarkable year-a year thathad a profound influence on me. It has surely helped to make me the liberal conservative,or conservative liberal, that I am today.1. Martha A. Field, Justice Harlan's Legal Process, 36 N.Y.L. ScR. L. REv. 155(1991).2. Charles Nesson, The Harlan-Frankfurter Connection: An Aspect of Justice Harlan'sJudicial Education, 36 N.Y.L. SC-. L. REV. 179 (1991).NEW YORK LAW SCHOOL LAW REVIEWVobliquely to theirs, I hope I can reinforce some of their thoughts aboutJustice Harlan's deep concern for process and about the extraordinarylevel of his candor, his analytical ability, and his contribution to theCourt's jurisprudence.)Justiciability, civil procedure, and remedies--of those three, surely themost interesting (and amorphous) is justiciability-the criteria governingwhether or not a controversy is appropriate for judicial resolution. As Ilooked over the list of Justice Harlan's contributions on this subject, I wasstruck by how many and how valuable they have been. To name just afew, there is his provocative dissent in Flast v. Cohen,' the caseupholding federal taxpayer standing to challenge federal expenditures onFirst Amendment establishment grounds; his extraordinary dissent in Poev. Ull an,4 an opinion much discussed at this conference for its view ofthe merits but, for my purposes, of particular interest because of itseloquent plea to allow adjudication at the instance of one who is deterredfrom engaging in constitutionally protected activity by a statute that hasyet to be enforced; his bold concurrence in Oestereich v. Selective ServiceSystem,5 where, in one of the draft cases arising out of the Vietnam War,he insisted that denial of timely relief may raise serious constitutionalquestions even if a remedy is available at a later stage; his powerfuldissent in Fay v. Noia,6 which has since become law in substance if notin form;7 and his landmark opinion for the Court in Abbott Laboratoriesv. Gardner,' still considered the definitive discussion of ripeness in thecontext of judicial review of administrative action.What also struck me in this survey was that Justice Harlan's approachto questions of justiciability appeared in the main not to spring from adesire either to find an excuse for avoiding the merits when the meritsseemed unworthy, or to get rid of a pesky stumbling block to consideringthe merits when they seemed especially alluring. The Justice was onlymortal, of course, and at times even acknowledged that notions ofjusticiability might serve (as Alexander Bickel alarmingly thought theyshould) as a convenient technique for avoiding unpleasant issues, or3. 392 U.S. 83, 116 (1968) (Harlan, J., dissenting).4. 367 U.S. 497, 522 (1961) (Harlan, J., dissenting).5. 393 U.S. 233, 239 (1968) (Harlan, J., concurring).6. 372 U.S. 391, 448 (1963) (Harlan, J., dissenting).7. See Wainwright v. Sykes, 433 U.S. 72 (1977). Since these comments weredelivered, the decision in Fay v. Nola has been explicitly overruled. See Coleman v.Thompson, 111 S. Ct. 2546, 2565 (1991).8. 387 U.S. 136 (1967).9. See, e.g., Alexander M. Bickel, The Supreme Court, 1960 Tern-Foreword: ThePassive Virtues, 75 HARv. L. REv. 40 (1961). Bickel's thesis-that at the Supreme Court(Vol. 36NOTES ON TWO DISSENTiSundesirable results." But in general, I am convinced that for him,notions of justiciability had a life and a justification of their own, andserved significant structural purposes-purposes closely tied to preservingthe principles of federalism and separation of powers that he prized sogreatly.1 Two examples may illustrate this point, and at the same timereveal a certain radicalism in Justice Harlan's thought that has perhapsbeen too little recognized-at least until this ,conference.First, there is Justice Harlan's dissent in Fay v. Noia.'2 This caseinvolved a state criminal defendant whose claim that he had beenconvicted on the basis of a coerced confession could not have beenreviewed directly by the Supreme Court because he failed to take a timelyappeal to a higher state court; his conviction, in other words, rested on anindependent and adequate state ground." Yet the majority held that in theabsence of a deliberate waiver of his federal claim in the course of thestate proceedings, the defendant could raise that federal claim in a federaldistrict court in an action for habeas corpus.' 4 Justice Harlan's dissenttook issue with almost every aspect of the majority's treatment of historyand every step in its rationale. It is most interesting to me because itsuggests-indeed insists-that there is a constitutional barrier, arising outof the nature of our federal system, to a federal court action effectivelyinvalidating a conviction that rests on an adequate and independent stateprocedural ground. 5 And he invoked some of the early judicialrumblings against the rule of Swift v. Tyson"6 in support of that position. 17level, notions of justiciability and jurisdiction are matters wholly within the Court'sdiscretion-has been roundly criticized by a number of commentators. See, e.g., GeraldGunther, The Subtle Vices of the "Passive Virtuest-A Comment on Principle andExpediency in Judicial Review, 64 COLuM. L. REV. 1 (1964); David L. Shapiro,Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 577-79 (1985).10. Professor Field reports a few such instances in her paper. See Field, supra note1. And I recall one occasion as a law clerk when the Justice said to me, perhaps onlypartly in jest, that if the majority was going to take a certain tack on the merits, he wouldhave to dissent on the ground that justiciability was lacking.11. I might note here my agreement with Professor Strossen that Justice Harlan sawthese principles as safeguards against excessive concentration of governmental power, andthus as fundamental protections of the interests of the individual. See Nadine Strossen,Justice Harlan and the Bill of Rights: A Model for How a Classic Conservative CourtWould Enforce the Bill of Rights, 36 N.Y.L. ScH. L. REv. 133 (1991). And I think he wasright.12. 372 U.S. 391, 448 (1963) (Harlan, J., dissenting).13. See id. at 397-98.14. See id. at 434.15. See id. at 463-70 (Harlan, J., dissenting).16. 41 U.S. 1 (1842).17. In particular, Justice Harlan quoted at length from Justice Field's dissent in1991]NEW YORK LAW SCHOOL LAW REVEWThis, I submit, is a radical view, since it would impose constitutionalconstraints on the writ of post-conviction habeas corpus that exceed theadmitted federal power to authorize removal of a state criminal case tofederal court when a federal defense is raised. It suggests, in other words,that once the state criminal process is completed, interests of federalismrequire that the procedures employed by the state to bring the case to aclose, if not themselves unconstitutional or an unreasonable hindrance tothe assertion of a federal claim, be respected in any subsequent federalchallenge to the conviction. And they must be respected even if the priceof doing so is not to decide the prisoner's underlying claim ofunconstitutional treatment.Although the Court has since rejected much of the majority's rationalein Noia and accepted much of Justice Harlan's thesis,"8 it has neverembraced his view that recognition of an adequate state ground in habeascorpus is constitutionally required. Yet that view has much to commendit; it has never, to my mind, been convincingly rebutted; and it may wellhave been one of the driving forces behind the retrenchment of federalhabeas corpus that has taken place in recent years.My second illustration involves another dissent-this one in Flast v.Cohen." The majority in this case held that a federal taxpayer hasstanding to bring a federal court challenge to federal expenditures on theground that those expenditures violate the First Amendment prohibition ofany laws "respecting an establishment of religion."' The majoritycarved out this area from the Court's traditional rule that federal taxpayershave no standing to object to federal expenditures,"' and did so in a waythat yielded without too much difficulty to total annihilation in JusticeHarlan's dissent. Indeed, the annihilation was sufficiently effective thatJustice Douglas, concurring, conceded that the majority's test was not a"durable one for the reasons stated by my Brother Harlan," and opted fora much broader rule of citizen standing.' But for me, the mostinteresting aspect of the dissent is its emphasis on the importance ofstanding limitations in preserving the proper boundary between thejudiciary and the other branches of the federal government-a point laterBaltimore & O.R.R. v. Baugh, 149 U.S. 368, 401 (1893) (Field, J., dissenting). See Nola,372 U.S. at 466. In that case, Justice Field, in objecting to the extension of the Sriftdoctrine to the applicability of the fellow-servant defense in a diversity tort action, spokeeloquently of the constitutional necessity of recognizing the independence of the states inboth their legislative and judicial departments. See Baltinwre & O.R.R., 149 U.S. at 401(Field, J., dissenting).18. See supra note 7.19. 392 U.S. 83, 116 (Harlan, I., dissenting).20. Id. at 87.21. See id. at 83.22. Id. at 107 (Douglas, J., concurring).[Vol. 36NOTES ON TWO DISSENTYdeveloped by the majority in several opinions.' This perspective ledJustice Harlan, naturally and logically, to an expansive view aboutstanding to bring a public action-that is, an action in which the plaintiffcannot fairly claim any personal injury, or at least any injury greater thanthat suffered by anybody else, and in which the only true stake of theplaintiff in the outcome is his desire to see the law properly enforced.Harlan's view, clearly expressed in Flast, was that such standing may beconferred on citizen plaintiffs by Congress.' As he put it, "[a]ny hazardsto the proper allocation of authority among the three branches of theGovernment would be substantially diminished if public actions had beenpertinently authorized by Congress and the President. "'This is a radical notion-one that has not been, and may never be,squarely endorsed by the Supreme Court.' And it can be regarded as anexercise of judicial restraint only in its willingness to abide by thelegislature's decision-not in its unwillingness to embark on a broadcourse of adjudication if the legislature wills it. Yet how compelling histhesis is when you think about it. If the legislature can define and createrights, what is to prevent it from conferring on every citizen anenforceable right to see that certain laws are effectively observed? Whois to gainsay the legislative judgment, whether it is expressed or onlyimplicit in its grant of standing, that a very large class of people-maybeeveryone-has a legal right to enforce a particular legal obligation orprohibition?In both Noia and Flast, I submit that Justice Harlan thought deeplyand boldly about questions of justiciability and their relationship to somevery basic principles. We are in his debt for that, as we are for so muchof what he has done.23. See, e.g., Allen v. Wright, 468 U.S. 737, 750-52 (1984); Valley Forge ChristianCollege v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-76 (1982).24. See Flast, 392 U.S. at 131 (Harlan, J., dissenting).25. Id. at 131-32 (Harlan, J., dissenting). Although Justice Harlan suggested that therewas Supreme Court authority for his view, the only case he citbd for this proposition,Oklahoma v. United States Civil Serv. Comm'n, 330 U.S. 127, 137-39 (1947), does nothelp much, if at all. And while a footnote in the Justice's dissent at this point suggests thatCongress's power to authorize suits is not unlimited, the footnote makes clear his view thatconstitutional standing is not limited to "Hohfeldian" plaintiffs (i.e., plaintiffs who canclaim a personal or proprietary stake in the outcome). See Flast, 392 U.S. at 131 n.21; seealso id. at 119 n.5 (defuiing "Hohfeldian" and "non-Hohfeldian" plaintiffs).26. Several of the Court's decisions after Flast, however, have recognized thesignificance of a broad statutory grant of standing. See, e.g., Trafficante v. MetropolitanLife Ins. Co., 409 U.S. 205 (1972). See generally PAUL M. BATOR El AL., HART ANDWECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 135-37 (3d ed. 1988)(discussing congressional grants of standing).1991]

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Justice Harlan and Justiciability: Notes on Two Dissents

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