Relatedly, H. Jefferson Powell has published The Harlan Court: A Constitutional Alternate History, in a symposium for Walter Dellinger in the North Carolina Law Review:
Walter Dellinger shared the widespread perception that the Burger Court was characterized by “rootless activism” rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger’s idea and its relevance today. The “Harlan Court” of Dellinger’s imagination would have reached its decisions through opinions that generally built on the legacy of the Warren Court by the logical development of precedent, a refusal to practice the Burger Court’s frequent tactic of obliquely undermining or underenforcing decisions a majority disapproved, and a commitment to persuading the reader’s judgment rather than imposing judgments by rhetorical fiat. Dellinger thought the characteristics of the “Harlan Court” he imagined were equally valuable to correctly identifying the most common error he saw in early twenty-first century constitutional law: the belief or assertion that difficult constitutional issues can be resolved through some method of decision that avoids the exercise of judgment by the decision-maker.
--Dan Ernst
