Justice Harlan on Criminal Procedure: Two Cheers for the Legal Process School

Abstract:     
The standard portrait of the second Justice Harlan paints him as the voice of judicial restraint on an activist court. Justice Harlan's approach to criminal procedure cases, however, has not found favor with the Court, even though a majority of the justices for many years have shown more sympathy to the prosecution than to the defense. This article locates the decisive weakness in Harlan's approach in reliance on legislatures to reform the criminal process. If that reliance were justified, Harlan's supposition that the courts should play only an interstitial law-making role would be justified. Despite occasional exceptions, legislatures have not undertaken systematic criminal justice reforms. The modern Court has recognized this political reality, and accepted a primary, rather than secondary, law-making role for the judiciary in the criminal procedure context. The article argues that, given a more realistic assessment of institutional competence, Harlan's legal-process approach offers a better path for criminal procedure's future than the formalistic new originalism evident in some of the Court's recent decisions.

Number of Pages in PDF File: 78

Keywords: Criminal procedure, Harlan, legal process

Accepted Paper Series