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Abstract

In the general common law world, few things are more contestable than what constitutes judicial greatness. Is it the capacity to anticipate developments in the law or to champion new ideas that, in time, will become accepted? Or is it the elegance of judicial style? Or is it a combination of some or all of these things? These are the subjects of endless jurisprudential debates. Yet no matter where you stand in this debate, one thing is clear: the U.S. Supreme Court has been fortunate in having had among its ranks some of the greatest judges which the common law world has ever produced.

In this Article, I wish to explore the reputation of four great justices of that Court. While Oliver Wendell Holmes has his critics, his greatness can scarcely be denied. Yet I contend that that very aura which surrounds Holmes has somewhat obscured the real achievements of one of his erstwhile colleagues, John Marshall Harlan, who may be said to have outshone him in certain respects. So the first part of this Article seeks to compare and contrast Holmes and the first Harlan and to inquire why Holmes has won the prize of history, while Harlan’s reputation nowadays rests almost exclusively on his famous dissent in Plessy v. Ferguson. In the second part of this Article, I seek to compare and contrast the achievements of Felix Frankfurter with those of the other John Marshall Harlan, the grandson of the first Harlan. I contend that Frankfurter’s inflexibility, dogmatism, and personal vanity prevented him from achieving his full judicial potential and that, in this respect, he has been outshone by the Harlan II, whose flexibility, modesty, and a nuanced understanding of the judicial role has distinguished him as one of the great Justices of the post-World War II era.

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