Word: harlan
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...predecessors, Nixon is finding the court slow to respond. His first court appointee, Chief Justice Warren E. Burger, has not yet achieved intellectual or philosophical leadership within the court. Burger's chance might come with the exit of three aging Justices: Hugo L. Black, 84, John M. Harlan and William O. Douglas, both 71. But those venerables were so miffed by Nixon's efforts in the Haynsworth and Carswell episodes last year that now they plan to hang on as long as possible...
Hasty Hoist? A troubled Justice John M. Harlan concurred in the result, but not for White's reasons. Harlan has long resisted the court's insistence that virtually every standard in the federal Bill of Rights must be applied to state criminal proceedings. In his view, the states should indeed be free to have six jurors if they wish, but the Sixth Amendment should be clearly construed to make the Federal Government stick to twelve. The majority opinion, he argued, undermines the constitutional basis for juries of any size, particularly in federal cases. "If twelve jurors...
...Harlan also noted that the Constitution does not spell out the rule that juries must be unanimous in order to convict. As a result, he suggested, that rule, too, may be called into question by White's refusal to preserve common-law tradition. Said Harlan: "The uncertainty that will henceforth plague the meaning of trial by jury is itself a sufficient reason for not hoisting the anchor to history...
...Justice Harlan, well aware of the city's problems, was appalled by the decision, which overturned Baldwin's conviction. In his dissent, Harlan warned that the result may increase the city's court delays by "a factor of eight." Moreover, the present courtrooms do not even have jury boxes. Since the state legislature may be loath to pay for adequate courtrooms and increased personnel, it .looks as though New York City may have to dismiss more cases, encourage other defendants to waive jury trials, or rely on the legislature to cut the penalty for many offenses...
...joined by Chief Justice Warren Burger and Justice Potter Stewart) argued that this interpretation of the law had twisted the intent of Congress in passing it. In fact, some observers think that Congress may override last week's decision. As if aware of that possibility, Justice John M. Harlan concurred in the decision, but argued in a separate opinion that to deny Welsh an exemption would show favoritism to religion and thus violate the First Amendment ban against governmental "establishment of religion...