Justice Harlan's Law Lectures at GWU


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"Courtroom to Classroom: Justice Harlan's Law Lectures at George Washington University Law School," Journal of Supreme Court History (2005).

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Justice Harlan's Law Lectures at GWU

  1. 1. Courtroom to Classroom: Justice Harlan’s Lectures at George Washington University Law School ANDREW NOVAK John Marshall Harlan had a singularly successful legal career as an Associate Justice of the Supreme Court that spanned thirty-three years, from 1877 to 1911, one of the longest terms in history. For twenty-one of those years on the Court he also distinguished himself as a professor of constitutional law at George Washington University. Along with his colleague on the Bench and on the faculty, Associate Justice David J. Brewer, Harlan carried a full course load, teaching just about every subject: evidence, torts, property law, corporation law, commercial law, international law, and his specialty, constitutional law. Justice Harlan began his teaching career eventually trigger Professor Harlan’s prema- at Columbian University (renamed George ture retirement from teaching. Washington University in 1904) in 1889. It was the twilight of the presidency of the eminent A New School of Jurisprudence and scholarly James Clark Welling, who had and Diplomacy ably led the University through Reconstruction after the Civil War, a particularly tumultuous It was meant to be a class prank. The sopho- time for what was then a tiny college. In his mores planned on creating a ruckus by break- twenty-three-year tenure, Welling, with the ing up a meeting of the freshman class, the first keenest foresight, meticulously constructed a of the school year. The meeting was to take prominent institution from very little, shaping place in Jurisprudence Hall, the largest of the the school so greatly that his lengthy shadow is three lecture halls in the building, extending still visible. But his successors would squander across the first floor with seats enough for 300 that promise and their mismanagement would people and a ceiling reaching twenty feet in the
  2. 2. 212 JOURNAL OF SUPREME COURT HISTORY twirls his baton.” Although the student tried to wrestle away, he found himself helpless un- der Justice Harlan’s strong grip, bound by a “physical restraining order of the court.” The Justice directed the sophomores to disperse, and this time they obeyed his injunction.1 In 1902, Jurisprudence Hall, where the freshman class meeting continued uninter- rupted, was a newly-built, state-of-the-art fa- cility within the School of Law and Diplomacy. It housed both the law school, the oldest in the District of Columbia, rechristened in 1865 af- ter several unsuccessful births earlier in the century, and the graduate School of Jurispru- dence and Diplomacy, which had opened with great fanfare in 1898. Most professors, in- cluding Justices Brewer and Harlan, taught both law students and diplomacy students. The School of Jurisprudence and Diplomacy, envisioned as a training facility for the diplo- mats and Foreign Service officials of the James Clark Welling was an eminent scholar who United States, was the final wish of the late ably led George Washington University (then named President Welling. His successor, the Baptist Colombian College) in the late nineteenth century and Reverend Benaiah L. Whitman, whose short built it into a respected institution. term at the close of the nineteenth century is otherwise unremarkable, oversaw the building air. As the mob of sophomores charged toward and opening of the new School. The timing was the main door of the Hall, they accidentally excellent: war with Spain was imminent and caught the sixty-nine-year-old Justice Harlan the United States’ heretofore isolationist for- off-guard. Harlan’s height and build were leg- eign policy was collapsing. The School would endary, and at six foot six he towered over the remain popular throughout its twelve-year his- students, a vigorous and active golfer in excel- tory, but it ran such an enormous deficit that it lent health. jeopardized the entire institution.2 As soon as the large Kentucky jurist re- Justices Harlan and Brewer both spoke alized the situation, he shouted in a loud, au- at the opening ceremony of the School of thoritative tone, “Stop this; stop this at once, Jurisprudence and Diplomacy: Brewer as the or I’ll have you all arrested!” His booming first of several guest speakers, Harlan as the voice startled the sophomores and they re- last. The assembled audience included U.S. treated momentarily, frustrated in their attempt President William McKinley and Canadian to have a little fun at the freshmen’s expense. Prime Minister Sir Wilfrid Laurier, as well The rowdy sophomores immediately began a as a host of dignitaries, diplomats, and of- second assault on the freshman meeting and ficials. “God has made big bodies to carry Justice Harlan responded with a “plan of com- big souls,” said President Whitman in in- pulsory arbitration,” as the Washington Times troducing Harlan to the podium. After the called it, reaching over the heads of the sopho- rapturous applause died down, Whitman con- mores and seizing the leader of the mob by the tinued: “There, I knew you would know who I coat collar. Harlan dragged the student back, meant without mentioning any name.” Harlan “twirling him about, much as a bandmaster spoke on the importance of the Constitutional
  3. 3. COURTROOM TO CLASSROOM 213 Welling’s final act was to oversee the construction of Jurisprudence Hall (pictured), a state-of-the-art facility within the School of Law and Diplomacy, in 1902. It housed both the Law School, the oldest in the District of Columbia, rechristened in 1865 after several unsuccessful births earlier in the century, and the graduate School of Jurisprudence and Diplomacy, which had opened with great fanfare in 1898. Most professors, including Harlan, taught both law students and diplomacy students. lawyer to American society; “as usual his University by making the institution’s informal utterances were forceful, holding, as he al- Baptist affiliation a formal one, hoping that ways does, the Constitution of the United it could attract money and endowment from States above all things,” The Washington Post Baptist sources. But the gamble did not pay reported.3 For the School itself, many citizens off and the Baptist affiliation was discontin- expressed praise: “In such an institution as this ued. Needham, following Whitman in an effort Washington may feel a justifiable pride,” a Post to secure support for the University in general editorial read.4 The new School’s opening had and his beloved School of Diplomacy in par- made the pages of nearly every major news- ticular, began to look for creative avenues for paper around the country, lauding the mission fundraising. upon which the unique school embarked. He turned to the George Washington Memorial Association, an organization foun- ded in 1898 to raise money for the building Fundraising Efforts of a national university named after the first The School’s most vociferous supporter was U.S. President. The agreement was simple: Columbian University Trustee and prominent Columbian University would change its name Washington lawyer Charles Willis Needham, to the George Washington University, and the who would succeed Rev. Whitman as presi- Memorial Association would help raise money dent in 1902. Whitman had attempted to sal- for the institution, the embodiment of General vage the deteriorating financial situation of the Washington’s stipulation in his will providing
  4. 4. 214 JOURNAL OF SUPREME COURT HISTORY shares of canal stock for the establishment of The situation did not improve. The a university in the District of Columbia. College of Arts and Sciences and the School In February 1904, the George Washington of Diplomacy still ran tremendous deficits in University was born, or, more accurately, 1904, while Medicine, Dentistry, and espe- born again, with the approval of the U.S. cially Law ran surpluses. The next year, it was Congress to re-charter the institution that had only Diplomacy that continued to run a deficit, received its first congressional charter in 1821 but the shortfall was growing ever larger from as Columbian College, renewed in 1873 as year to year. By 1907, it was clear that reorga- Columbian University. Justice Brewer gave the nization was necessary; Needham’s brainchild, keynote address at the George Washington the School of Diplomacy, could not survive. University’s first commencement in the winter Almost all units of the University were running of 1905, celebrated on George Washington’s deficits by the end of the decade.9 Each suc- birthday. Brewer summed up the hope and an- cessive year the budget grew redder; Needham ticipation that many felt in fulfilling the dream “warned his Board [of Trustees] about incur- of a great university. He spoke of the glo- ring debts, but kept on spending.”10 Disaster rious road that lay ahead, praising “George loomed ahead. Washington the testator, the people of the United States the executor, the bequest a uni- Harlan’s Lectures versity, its domicile the District, its field of toil the Republic, the reach of its ever-increasing Harlan’s regular Tuesday evening lectures on influence and glory the boundaries of space constitutional law were always well-attended, and time.”5 The student newspaper reported, most notably the one at the beginning of the “Justice Brewer was cheered to the echo when spring semester on the decisions of Chief he concluded his address.”6 Few onlookers re- Justice John Marshall, whose name Harlan alized at the time that there was an additional shared.11 Though he taught many courses: do- barrier in the University’s future besides the mestic relations, commercial law, law of ev- “boundaries of space and time”: the lack of an idence, torts, property, and, in the School of endowment. Diplomacy, conflict of laws, Harlan was most Despite the name change, the accounting renowned for his most ardent interest, consti- books did not bode well for the institution’s tutional law. He did not hesitate to discuss in future. In 1902, though the law school ran an the classroom the contentious legal disputes enormous budget surplus and the Corcoran that he himself had dealt with as a jurist or that Scientific School and the Graduate School were now before the Supreme Court. The ap- ran modest surpluses, the College of Arts plication of the Constitution to the citizens of and Sciences and the School of Jurisprudence the newly acquired territories of Hawaii, the and Diplomacy ran shocking deficits so large Philippines, and Puerto Rico, was a favorite that the surpluses created by the smaller units subject. Harlan’s experience was palpable, and were entirely swallowed up.7 The treasurer of the benefit to law students of participating the University explained the dire situation to in actual cases before an actual judge was the Board of Trustees: “For a number of years incalculable. the University has been run at a loss, par- Many of Professor Harlan’s lecture notes tially by reason as the fact that two of our from his law classes are still extant, as the schools are weak in membership, yet expen- Justice always planned to retire and write a sive to operate.” He added, “From a busi- textbook. He never did retire, remaining an ac- ness standpoint this loss cannot be sustained tive member of the Court until his death in many years without serious embarrassment to 1911, and the textbook plans remained an un- the entire institution.”8 The University was in fulfilled dream. He left behind his notes on the red. the history of the Constitution, an assorted
  5. 5. COURTROOM TO CLASSROOM 215 collection of exams, reading lists, and pages of the Hawaiian territory, Professor Harlan told torn out of law books with his notes scrawled his students: “The decisive question in this case in the margins, as well as excerpts of state con- was weather, consistently with the Constitu- stitutions, papers written by his students, and tion of the United States, Mankicki [sic.] could even copies of his own opinions and dissents. be tried in Hawaii for an infamous crime and This large collection of material gives an in- be sentenced to imprisonment . . . after all the sightful glance into the classroom life of Jus- rights and sovereignty of Hawaii had been ac- tice Harlan. quired by the United States.”15 His course on constitutional law started Harlan’s lecture notes from his commer- with the origins of the document and the lives cial law classes have survived as well. His of the drafters. “We the People of the United precision and diligence are evident in his States,” is penned at the beginning of his notes, discussion on commerce “among the several underlined twice, with the word “Preamble” States,” the constitutional provision granting scrawled next to it.12 His first lectures each Congress the right to regulate interstate com- semester included discussions of the Consti- merce. “It is the power to regulate; that is, to tutional Convention, the Articles of Confed- prescribe the rule by which commerce is to be eration of 1781, and the powers granted to governed,” he wrote. “This power, like all oth- the states and to the federal government. His ers vested in Congress, is complete in itself, lectures analyzed the role each institution of may be exercised to its utmost extent, and ac- government played in the larger machine as a knowledges no limitations, other than are pre- whole, accompanied by the processes that al- scribed in the constitution.”16 Harlan’s sense lowed the government to function effectively of humor was always entertaining; when he and in accordance with the rights enumerated would read one of his sole dissenting opin- in the Constitution. ions, he would pause for a moment and then His exams were all-encompassing and add: “But of course I was wrong.”17 lengthy. “What does interstate commerce The Columbian Call, the student newspa- embrace?” he asked his students. “Define per published in the late 1890s, wrote of Justice piracy.” “What testimony is requisite to a con- Harlan’s legendary law courses. “In the lec- viction of treason?” “What is meant by prima ture hall he is, to a certain extent, at his best,” facie evidence?” “State as far as you can re- the paper wrote. “His figure, heavy and well call what powers are expressly or specifically proportioned, is the one that your fancy paints granted to Congress?” And he continued, as belonging to a man of power. His voice is adding questions about trial by jury, the resonant, penetrating, and not ‘flat and unprof- jurisdiction of the federal court system, due itable’ to the ear. When he delivers himself of process requirements, governance of the Dis- a conviction his strong jaws seem to close over trict of Columbia, impeachments of presidents, the words as though steel bars would not spring and declarations of war.13 them apart.”18 Some of his notes on individual cases Harlan was more than a prominent judge have also survived: Dorr v. United States with a successful career. He was also a unique (1904), Dooley v. United States (1901), Delma personality, raised a Whig in the mold of v. Bidwell (1899), and dozens of others. When Senator Henry Clay, a fellow Kentuckian. discussing recent cases, he held his own dis- When the threat of Civil War brought a col- sents in hand. For a discussion of Dorr v. lapse of the Whig party, Harlan joined the United States, for instance, a case involving the American party, remembered by history as the application of constitutional protections to cit- “Know-Nothings,” with a xenophobic, anti- izens of the Philippine Islands, he read his dis- Catholic platform. He remained loyal to the sent to the class.14 When discussing Hawaii v. Union and served as Kentucky’s attorney gen- Mankichi, a similar case involving the citizens eral during and after the Civil War. During
  6. 6. 216 JOURNAL OF SUPREME COURT HISTORY Reconstruction, he became a Republican, the extent that their busy lives would allow. twice ran for governor of Kentucky, and, in Harlan occasionally participated as a judge of 1877, was appointed by President Rutherford the law school, debating society’s public debate B. Hayes to the U.S. Supreme Court.19 forums.21 Justice Brewer, a short, slight man “Judge Harlan lectured to our class of who looked like Harlan’s physical opposite, two hundred members,” one student later re- wrote book reviews for the student newspaper called. “The spontaneity of the applause that on works related to the procedures and his- frequently marked the beginning and close of tory of the Supreme Court.22 Brewer, a former his sessions, was sufficient evidence of the ap- probate judge, Kansas Supreme Court justice, preciation the members had of him.” The stu- and circuit court judge, was, like Harlan, an dent remembered the Justice’s confidence and independent voice on the Court. As Brewer’s sincerity when a student asked a question to biographer recounts: “Of all the members of which Harlan did not know the answer; Harlan the Court during the [Chief Justice Melville] responded that he would look into the ques- Fuller era, Harlan entered the most dissents, tion and reply definitively in the next class 283. Brewer was second with 219.”23 session.20 “In his lectures on corporation law to Columbian students he is always accorded the most respectful attention, and the classes are Justice Brewer in the Classroom out to a man,” the student newspaper wrote Both Justices Harlan and Brewer participated of Professor Brewer, who also taught interna- in university life outside of the classroom, to tional law to both law and diplomacy students The Columbian Call, the student newspaper pub- lished in the late 1890s, wrote of Justice Harlan’s legendary law courses: “In the lecture hall he is, to a certain extent, at his best.” Justice Harlan is pictured posing by a mirror.
  7. 7. COURTROOM TO CLASSROOM 217 Justice David J. Brewer (left) also taught a variety of courses at the law school. When Harlan (right) was out of town, Brewer substituted in his constitutional law class. Justice Brewer and Jus- tice Harlan are pictured strolling near George Washington University. and occasionally took over for Harlan’s Consti- Guiana in South America, added a real-life el- tutional law class when his colleague was out ement to his coursework in the law school. of town.24 “The subject is not one that gives The two Justices also gave up smoking a man much play for lighter talk, there is but and chewing tobacco around the same time, little humor to it, and yet he tells at times a pat though Brewer later resumed. Justice Harlan story that seems to fix the conclusion in your joked with his law school students that smok- mind better than heavy logic. Justice Brewer ing cigarettes and chewing tobacco were not is a true wit,” the paper added, noting how his “conducive to the development of legal acu- eyes twinkle when he tells a joke.25 Brewer men,” the student newspaper reported. “I may vastly enjoyed teaching, finding the students’ be wrong, of course I am wrong, the other questions stimulating. He once reflected that judges being in the majority, but that is my it was “a satisfaction to . . . be able to do them opinion.”27 Whether it was lecturing students some good.”26 on the law or on how to be good lawyers and Though Harlan had sat on the Bench for citizens, Harlan surely felt as much at home in more than twelve years before Brewer was ap- the halls of education as he did in the halls of pointed and would outlive Brewer by a year justice. He did not know the great distress the and a half, the younger Justice was surely as future would bring, either for him or for the accomplished as Harlan. Brewer had the most university life of which he was a part. judicial experience prior to his Supreme Court appointment of any of the Justices, and his Harlan’s Son to the Rescue? experience in international law, especially as president of the commission to arbitrate the The University administration, in desperation border dispute between Venezuela and British over its lack of funds, turned to Professor
  8. 8. 218 JOURNAL OF SUPREME COURT HISTORY With the school’s finances in dire straits, Justice Harlan ar- ranged for George Washington University to hire his eldest son, Dr. Richard Daven- port Harlan, as its fundraiser. Pictured here, the Justice (left) poses with Richard (right) and their wives on the steps of Lake Forest College, of which the younger Har- lan served as president for a short time. Harlan for rescue. Harlan recommended that Princeton Theological Seminary in 1886, and they appoint his eldest son, Dr. Richard would serve both the First Presbyterian Church Davenport Harlan, to direct a fundraising ini- in New York City and the Third Presbyterian tiative to guarantee the institution’s survival. Church in Rochester, New York. Richard alone among Justice Harlan’s three Of all the qualities that Richard inherited sons had chosen against a profession in the from his father, perhaps the most profound was law. The family was devoutly Presbyterian, and his liberalism, his devotion to a socially just, the Justice was supportive of his oldest son’s egalitarian philosophy. He also remained close decision to become a minister. Harlan “consid- to his Princeton colleagues; Princeton Univer- ered the clergy’s spiritual leadership of the peo- sity Trustee Cyrus McCormick, who made his ple as important to civic virtue as the work of fortune in the agriculture sector, was also at liberty loving lawyers.”28 All three sons grad- the time the president of the Board of Trustees uated from Princeton, but Richard was vale- of Lake Forest College in Chicago, a college dictorian while the younger two, James and with Presbyterian roots. McCormick and his John Maynard, graduated only with difficulty allies were seeking someone who shared their and prodding from their father. Richard was liberal conception of education to place in ordained a minister after his graduation from the presidency of Lake Forest. The Reverend
  9. 9. COURTROOM TO CLASSROOM 219 Harlan seemed like a natural choice. Mc- wrote. Harlan will receive “world-wide honor Cormick and his colleagues were also deter- as a prime factor in the establishing of a mined that when the presidency of Princeton national university in the capital of the United University opened up, they would place a great States.”31 The French ambassador praised liberal in that position: Woodrow Wilson. the endowment campaign, offering encour- Richard Harlan came to the Lake Forest agement to Richard Harlan; “The George College presidency determined to break the Washington University cannot hesitate and hold the elite fraternities had over the social has no choice—it will become famous and life of the student body. His efforts to force the be of use to the country as a nursery of mag- fraternities to vacate their independent housing istrates, statesmen, and diplomats.”32 Such and move to campus, as well as the building lofty goals, such grandiose visions. When the of a dining hall to accommodate all male stu- prophesies were not fulfilled, however, the dents, faced resistance from the sons of priv- well-connected, wealthy benefactors turned ilege. These efforts, “conceived as a way of away from the struggling school. Only the promoting a kinship of college spirit, [were] most dedicated stuck by. clearly egalitarian in motive and effect” and In the fall of 1908, Richard Harlan re- on those grounds were met with hostility.29 vealed to the Board of Trustees the reasons he President Harlan had difficulties with the fac- accepted the job. Of course, the tasks he per- ulty too: in 1905, the popular head of the formed in fundraising did not match his expe- English Department went so far as to resign his rience, but the position “offered possibilities of professorship and his chairmanship in protest indefinite usefulness here in Washington, near of Harlan’s policies. my parents.” He also hoped to become a pro- Disappointed with his unsuccessful ef- fessor himself someday, to teach in the class- forts to implement his reformist agenda at Lake room, and he thought his service to George Forest, Richard resigned in December 1906. Washington University would be a stepping- His short term had made a lasting mark, turn- stone. However, he added, “the determining ing a socially divided college with elite stu- factor in my decision to accept this appoint- dents living in fraternity housing and students ment” was the opportunity to add “a fairly on scholarship living on campus, into a fully substantial sum to my little estate.”33 He had residential institution. Later presidents of Lake received a poor severance package from Lake Forest would follow Harlan’s lead. Though his- Forest College, and was dependent on his tory has vindicated Richard Harlan’s legacy, at wife’s inheritance; he was desperate for a the time his separation from the school was job, and did not hesitate to use his father’s bitter. Thanks to his father, however, he was connections. not unemployed: he would be appointed head Harlan also laid out his plan for achieving of the “George Washington University Move- the ultimate goal: $25,000 for the endowment ment,” as President Needham’s efforts to raise of the School of Comparative Jurisprudence much-needed funds were called, at the univer- and Diplomacy (renamed in 1905 the School sity where his father taught and his brother of Politics and Diplomacy and in 1907 the James Harlan and cousin James Cleveland re- College of the Political Sciences, both reor- ceived law degrees. According to historian ganizations reflect an attempt to balance the Tinsley Yarbrough, “the justice’s hand in the budget of the struggling department). Harlan’s school’s choice was clearly evident.”30 hope was pinned on a piece of congressional The students were welcoming of legislation, the Gallinger-Boutell Amendment Dr. Harlan: “The University is most fortunate to the Morrill Acts of 1862, which origi- in securing the assistance of one so well nally provided land to be sold to raise funds fitted for this work,” the student newspaper for public colleges in each of the states. The
  10. 10. 220 JOURNAL OF SUPREME COURT HISTORY Gallinger-Boutell Amendment would extend independent of either George Washington or the scope of the Morrill Act to the District of Howard Universities, the two schools at the Columbia, and designate George Washington time seeking Morrill funds. Richard Harlan’s University as the benefactor. dedication to the cause was praiseworthy, but Harlan deeply invested time and energy to he devoted a great deal of time and effort to get the Gallinger-Boutell Amendment passed, something that achieved poor results. He did personally lobbying members of Congress to manage to collect $1,000 from J.P. Morgan and return to the District of Columbia the taxes other donations from alumni and prominent in- paid by its citizenry on par with the resi- dividuals, but these hardly covered the costs of dents of Maryland and Virginia, across the Harlan’s setbacks, let alone operating expenses border. There were several obvious problems for the institution. with the Amendment’s application to George And setbacks there were: the Gallinger- Washington University. First, the Columbian Boutell Amendment would have provided University had attempted to reconstitute itself $40,000 to the George Washington Univer- as a sectarian Baptist institution from 1898 sity for the first year, $45,000 the second to 1904, an initiative that resoundingly failed. year, and $50,000 each year thereafter, a sum Second, the University was, by tradition, a which surely would have saved the school. The whites-only institution, rejecting its first black Amendment died with the end of the congres- applicant in 1899. Third, the law school still sional session, and there was little hope for prohibited women from enrolling. A sectar- its revival after the financial situation of the ian, exclusive school was ineligible to apply University became public. Decades later, the for Morrill Act funds, and Richard Harlan and Morrill Act would be extended to Washing- President Needham went to great lengths to ton, DC, but with the University of the Dis- prove that the new 1904 Congressional Charter trict of Columbia as the recipient of funds, not was nonsectarian in nature, even prohibiting a George Washington. The failure of the Amend- majority of the Board of Trustees from repre- ment in Congress sealed the University’s fate senting a single religious denomination. Still, as the first decade of the twentieth century the fact that not all of the District’s citizens came to close: catastrophe was now certain. would be able to make use of the Morrill Act The University could no longer assure faculty funds hampered the institution’s efforts to ap- tenure and pensions, even for those professors ply for recognition. who had served the school faithfully for years. The student newspaper repeatedly ran ed- The Trustees were forced to sell the property itorials urging the passage of the Amendment, donated by the George Washington Memorial noting that even Hawaii and Puerto Rico, two Association in 1904; in response, the Memo- newly acquired territories, received funds un- rial Association cancelled its promise with the der the Morrill Act. “The District has a just University to raise $250,000. Perhaps it was for and equitable claim for the appropriation; and the best: at the time the agreement was made in George Washington University has an equally 1904, the Association had only raised $16,000. just and equitable claim to be designated as Many wondered if the initiative to rename the a depository for the District,” the students school after the first president and the idea to wrote.34 The bill passed the Senate unani- start a college for training diplomats and politi- mously and passed a House committee, but the cians had been mistakes. opponents of the Amendment, led by President The forced retirement of several pro- Edmund James of the University of Illinois fessors caused the Andrew Carnegie Foun- and the Association of State Universities, lob- dation for the Advancement of Teaching to bied Congress instead to designate funds for revoke its donations to the University, a par- a new university in the District of Columbia, ticular blow to Richard Harlan who had
  11. 11. COURTROOM TO CLASSROOM 221 successfully courted Carnegie’s philanthropic The University underwent tremendous reorga- support while president of Lake Forest Col- nization. Ernest G. Lorenzen became dean- lege. Each setback caused a round of resigna- elect of the law school, though he did not last tions from the Board of Trustees. “The days of for more than several months. Trustee Harry the administration, maybe even of the Univer- Snow was offered the acting presidency, but he sity itself, seemed numbered . . . The sad state refused it in favor of Admiral Charles Stock- of the institution’s financial structure was now ton, an old Civil War veteran, who became the generally known and publicly discussed.”35 ninth president of George Washington Univer- The deficit for the 1909–1910 school year was sity in November 1910. However, Snow’s wife approaching $50,000. It eventually became ob- had not been fond of Justice Harlan, and she vious that President Needham was not being sent him a rude and sloppy letter telling Harlan candid about the state of the University, even of the “extreme idiocy” of the University ad- giving grossly inflated figures to the Carnegie ministrators and her husband’s efforts to save Foundation in an attempt to renew the relation- the institution “if it is saved.” Then, she made ship with the benefactor. He was covering up a personal attack on Justice Harlan: “You all his poor planning and frivolous spending with thought we were to be patronized when we his vivid illusions about the importance of his came here. Why only you know. My father, who mission. made law . . . was greater than all of the judges A House of Representatives resolution au- who ever sat on the bench put together,” she thorized the Attorney General to investigate wrote.38 Closely following Margaret Snow’s the situation at George Washington. President letter was one from Dean Lorenzen request- Needham resigned at once. All property was ing each law school faculty member, including sold, salaries were cut, and a wide host of ad- Harlan, to make a donation to pay a secretary. ministrative and professional positions were Both letters caused Harlan to feel per- abolished, among them the position Richard sonally insulted. “I had supposed that the law Harlan held. This came at a time when he branch of the University more than paid its was in a crisis of his own after squandering way and that it would not be necessary to call $110,000 of his wife’s trust on poor bets in the upon the Faculty to aid it,” Harlan responded to stock market.36 Perhaps Richard Harlan had Lorenzen’s request for money.39 The only ex- not been the right man for the job after all. planation is that Justice Harlan did not know the extremely dire state the University was in (even the law school was now running a Harlan Resigns from Teaching large deficit). Perhaps even Richard Harlan On May 28, 1910, an elderly Justice Harlan did not know how bad the situation was, for graded his last papers for the students in his he surely would have explained it to his fa- Constitutional law classes. “I am conscious ther if he did. President Needham had warned that I may have made some mistakes. The ex- Justice Harlan in a letter the previous Septem- amination of the papers sent me has given me ber asking for a reduction in Harlan’s salary, very great trouble,” he wrote to the dean of but Needham, characteristically, was hardly the Law School.37 Though in his late 70s, he forthcoming with the reality of the situation.40 looked forward to teaching his twenty-second Though he had other important leadership school year. He was not yet ready to give it up. qualities, it was Needham’s delusion about the After President Needham’s resignation the financial stability of the University that was University sold the properties at 15th and H responsible for the institution’s bankruptcy. Streets. The humble brick building, three- A personal letter from a colleague on the stories square, that served as the law school of faculty begged Harlan to be understanding of George Washington University, was also sold. the financial situation: “Won’t you do the best
  12. 12. 222 JOURNAL OF SUPREME COURT HISTORY George Washington University was forced to sell its law school (small building to the left of George Washington University) in 1910 in the wake of years of gross financial mismanagement and in the face of an investigation called for by Congress. Justice Harlan retired prematurely rather than take a considerable pay cut. you can for us, Judge, and remain with us just support itself if we all consent to make the nec- as long as you feel that you can give us the essary sacrifice.”43 Justice Harlan’s son John benefit of those lectures on Constitutional Law Maynard Harlan telegraphed his father telling which I remember with so much pleasure from him not to accept until receiving the letter he my own student days in the University?”41 Two just put in the mail. John Maynard’s letter was days later, Lorenzen sent Justice Harlan a letter rushed and severe: “I do not know any of the asking for a reduction in salary from $2,400 to details of the proposal made to you, or indeed $1,500: “We lament the necessity of this step, whether any definite and precise proposal has but we see no alternative.”42 Given the state been made,” he wrote. “But I understand from of the University at that point, this may have Richard . . . that they wished further and very been the most truthful statement uttered by an materially to reduce your salary, and even for administrator. the reduced amount you to be satisfied with Harlan could not accept the offer imme- some certainty as to payment.” Again, John diately, he told Lorenzen and several other Maynard’s analysis is off the mark, telling his colleagues; he needed time to think the propo- father that the law department ran a surplus sition over, to reassess his financial situa- and could afford to pay him: “I decidedly ob- tion and to reconsider the satisfaction teaching ject to their getting your services at your time brought him. Still, one colleague desperately of life for a beggarly compensation, and using, tried to persuade Harlan to accept: “We cannot not merely the surplus of what the law school lose you. It means too much. But you can see produces, but also a part of what should go to the situation. The University is in a very criti- you as salary, for the support of other depart- cal state. But we believe that the law school can ments.” The fact of the matter was, however,
  13. 13. COURTROOM TO CLASSROOM 223 that there was no surplus. In fact, there was Noble Gregory, who replaced Lorenzen as not even a law school building anymore; the dean of the law school in 1911, would turn University was renting the top two floors of things around. Suffice it to say that there is the Masonic Temple in Washington, DC. no building today named after Needham, but John Maynard Harlan urged his father to Stockton Hall has been the prestigious home refuse to take a cut in salary, to demand that of the law school for more than seventy-five the law school not support the finances of the years. University administration in any way, and to But the insult inflicted on a senior mem- be strict in making sure that the University fol- ber of the Supreme Court by an administra- lowed the letter of his contract. “It will not do at tion that continuously misjudged and misrep- all to allow Snow or his termagant wife (who I resented the truth until it unraveled is surely think is crazy) to have the impression that he or one of the darker episodes in the Univer- the present management (of which apparently sity’s history. After Harlan’s resignation, the he is the active and controlling person) has pre- law school students wrote a glowing article in scribed the terms for your continuing in the law the student newspaper praising probably the school,” John Maynard wrote. “You may rely most renowned professor in the history of the upon it that any yielding upon your part would institution: be seized upon by that crazy woman and her His personality was invigorating. cowed husband and a wrong face to put upon His way of putting things was it to others.”44 Four days later, Justice Harlan unique. Coming students at the Law issued his resignation. School will miss, although they may One board member expressed regret at not know it, the stories by way Harlan’s decision, but noted that it was “both of illustration with which Justice wise and just for you to husband your Harlan enlivened the lecture hour, the strength,” in retiring from law school work. shots at the British aristocracy—as Harlan shot back: “This is a mistake. My health an institution—the kindly sarcasms, is good and I had intended to continue my work apropos of cigarette smoking, tardi- as Lecturer on Constitutional Law as long as it ness, and other vices to which college was possible to do so, or as long as the Univer- students are peculiarly prone. It was sity wished my services. The work interested all worth having, for in all of it one felt me greatly, and after nearly twenty years of ser- the fearlessness of speech, the rugged vice as Lecturer I had come to feel great inter- independence, the plain and kindly est in the future of the University,” he replied.45 manners, the simplicity and solidity But Margaret Snow’s letter, the forced resigna- of thought which made the students tion of Richard Harlan from his position, and respect and like him. Justice Harlan the reduced salary had convinced him that he stands for good, old-fashioned Amer- was no longer wanted. The new chairman of icanism. [. . .] the Board of Trustees, John Bell Larner, was But we are not writing a eulogy. . . . blunt in his reply to Harlan’s resignation over We salute you, sir. Here’s hoping you the reduced salary: “It was merely a question may be the next Chief Justice of the of doing this or closing the Law School.”46 Supreme Court.47 The George Washington University nearly failed in 1910 because of singularly weak leadership. But a new generation of admin- CONCLUSION istrators, with Admiral Stockton as President (who served without compensation), John Bell Both Charles Needham and Charles Stockton Larner as Chairman of the Board, and Charles served for eight years at the helm of the George
  14. 14. 224 JOURNAL OF SUPREME COURT HISTORY Washington University. But the two men could 3Announcement of Opening of School of Jurisprudence not have been more different: Needham was a and Diplomacy. The Washington Post. Nov. 16, 1898. 4Editorial. The Washington Post. Sept. 18, 1898. young, idealistic dreamer; Stockton was an el- 5Brewer, David J. “Shall George Washington’s Will Be derly war veteran, a builder. Stockton meticu- Executed?” Convocation address. Feb. 22, 1905. lously saved money, cut expenses, and moved 6“Winter Convocation.” The University Hatchet. March 1, the University to a new home in Foggy Bottom 1905. pp. 7–8. on borrowed money, where the University, 7See Budget Summary, Board of Trustees Minutes, as a testament to Stockton’s resilience, still Volume 6. June 18, 1902. 8Report of S.W. Woodward, Treasurer. Board of Trustees survives today. On his watch, the specter of minutes, Volume 6. June 18, 1902. war became war itself, and still he contin- 9See Budget Summaries, Board of Trustees Minutes, Vol- ued to build, to save, to defend the embod- ume 6. Nov. 3, 1903, Nov. 16, 1904, Oct. 16, 1907, June iment of George Washington’s will and the 5, 1907, June 3, 1908, October 15, 1908. 10Kayser, Op. Cit. p. 211. establishment of a national university. His suc- 11“Lecture on Marshall: Justice Harlan Reviews Great cessors had a great legacy to build upon. Jurist’s Decisions.” The Morning Post. Feb. 2, 1901. The modern University is also a testament 12See Harlan’s lecture notes. Harlan Papers, University of to the commitment and dream of Justice Harlan Louisville. On microfilm at George Washington Univer- and his colleagues on the faculty who endured sity Law School. great sacrifices during the direst moments in 13See Harlan’s exams on microfilm. Harlan Papers, the institution’s history. Harlan’s legacy is not Library of Congress Manuscript Division. 14Harlan, John Marshall. Dissent in Dorr v. United States, only in the courtroom; it is also in the class- 195 US 138 (1904). room: his commitment to teaching led him to 15See Harlan’s lecture notes on Hawaii v. Mankichi, 190 carry a full-time load as a professor while he US 197 (1903). Harlan Papers, Library of Congress. was a sitting member of the Supreme Court. 16Commercial law notes. Harlan Papers, Library of And an analysis of Harlan’s teaching is further Congress. 17Almon C. Kellogg to Richard D. Harlan. May 27, 1930. evidence of his profound commitment to the Harlan Papers, University of Louisville. Constitution of the United States. 18“Justice Harlan: Sketch of the Kentucky Lawyer Now an “The work which I have done, as one of the Honored Member of the U.S. Supreme Court.” Columbian lecturers in the University, has always been a Call. (Vol. 1, No. 8) Jan. 9, 1896. labor of love,” Harlan later reflected.48 Perhaps 19Yarbrough, Tinsley E. Judicial Enigma: The First Jus- he received no greater compliment in his ca- tice Harlan. New York: Oxford University Press, 1995. 20Almon C. Kellogg to Richard D. Harlan. May 27, 1930. reer than when a young student with bright, Harlan Papers, University of Louisville. warm eyes approached him after one of his 21“First Public Debate.” The Washington Post. Nov. 24, Constitutional law lectures one evening and 1901. said: “Sometimes, Justice, I am not, perhaps, 22“Book Reviews.” The University Hatchet. December 21, as good an American as I should be, but after 1905. p. 1. 23Brodhead, Michael J. David J. Brewer: The Life of a one of your talks the man doesn’t live who can Supreme Court Justice, 1837–1910. Carbondale: South- excel in honest love for my country and her ern Illinois University Press, 1994. p. 80. people.”49 24“Law.” The University Hatchet. Dec. 10, 1908. p. 5. 25“Sketch of the Man Who Lectures to Columbian Law School on Corporation Law.” Columbian Call. (Vol. 1, ENDNOTES No. 10) Jan. 23, 1896. p. 1. 1“Arbitration of Class Trouble At Columbian.” Wash- 26Brodhead, Op. Cit. p. 132. ington Times. October 23, 1902. See also, “Stopped A 27“Law.” The University Hatchet. Oct. 15, 1908. Fight: Justice Harlan Overpowers Belligerent Students.” 28Przybyszewski, Linda. The Republic According to Washington Post. October 24, 1902. John Marshall Harlan. Chapel Hill: University of North 2Kayser, Elmer Louis. Bricks Without Straw: The Evo- Carolina Press, 1999. p. 199. lution of the George Washington University. New York: 29Schulze, Franz, Rosemary Cowler, & Arthur Miller. 30 Appleton Century Crofts, 1971. Miles North: A History of Lake Forest College, Its
  15. 15. COURTROOM TO CLASSROOM 225 Town and Its City of Chicago. Lake Forest, IL: Lake 41Letter from Walter C. Clephane to J.M. Harlan. June 25, Forest College and University of Chicago Press, 2000. 1910. Harlan Papers, Library of Congress. p. 86. 42Letter from E.G. Lorenzen to J.M. Harlan. June 27, 1910. 30Yarbrough, Op. Cit. p. 206. Harlan Papers, Library of Congress. 31“Dr. Richard D. Harlan To Conduct A Campaign For 43Letter from Walter C. Clephane to J.M. Harlan, July 1, Funds for the New Site.” The University Hatchet. April 1910. Harlan Papers, Library of Congress. 11, 1907. p. 1. 44Letter from John Maynard Harlan to John Mar- 32“M. Jusserand Writes of Encouragement to Dr. Harlan.” shall Harlan. July 19, 1910. Harlan Papers, Library of The University Hatchet. May 30, 1907. p. 6. Congress. 33Letter from Richard Harlan to Board of Trustees. Board 45Letter from A.B. Browne to J.M. Harlan, July 26, 1910. of Trustees Minutes, Volume 6. Nov. 10, 1908. See also, letter from J.M. Harlan to A.B. Browne, July 29, 34Editorial. The University Hatchet. Dec. 9, 1909. p. 4. 1910. 35Kayser, Op. Cit. p. 203. 46Letter from J.B. Larner to J.M. Harlan, July 26, 1910. 36Przybyszewski, Op. Cit. p. 199. Harlan Papers, University of Louisville. 37Letter from John M. Harlan to Dean Vance. May 28, 47“Justice Harlan.” Editorial. The George Washington 1910. Harlan Papers, University of Louisville. News. October 28, 1910, p. 2. (Note: for one academic 38Letter from Margaret Snow to John M. Harlan. May 26, years, 1910–1911, the University Hatchet changed its 1910. Harlan Papers, University of Louisville. name to The George Washington News. 39Letter from E.G. Lorenzen to J.M. Harlan, June 22, 1910. 48Letter of John M. Harlan to Richard Cobb. Jan. 9, 1911. See also, letter from J.M. Harlan to Lorenzen, June 24, Harlan Papers, Library of Congress. 1910. Harlan Papers, Library of Congress. 49“Justice Harlan: Sketch of the Kentucky Lawyer Now an 40Letter from C. Needham to J.M. Harlan. Sept. 17, 1909. Honored Member of the U.S. Supreme Court.” Columbian Harlan Papers, University of Louisville. Call. (Vol. 1, No. 8) Jan. 9, 1896.