Kurland, Philip B.

(b. 22 October 1921 in Brooklyn, New York; d. 16 April 1996 in Chicago, Illinois), constitutional law expert who founded the Supreme Court Review and reviewed the Watergate transcripts for the Senate Judiciary Committee and concluded that they would support an impeachment charge against President Richard M. Nixon.

Kurland was one of two children of Archibald Kurland, a lawyer, and Estelle Polstein. After graduating from Erasmus Hall High School in Brooklyn, New York, in 1938, he received his B.A. degree from the University of Pennsylvania in 1942. In 1944 he earned an LL.B. from Harvard Law School, where he served as the president of the Harvard Law Review. He was a law clerk to Judge Jerome Frank of the U.S. Court of Appeals for the Second Circuit in 1944–1945 and in 1945–1946 to the Supreme Court justice Felix Frankfurter, with whom he formed a deep intellectual and personal bond. After working for the Justice Department and practicing law with Richard Wolfson in New York City from 1947 to 1950, Kurland moved to Chicago and joined the Northwestern University law faculty in 1950. In 1953 he moved to the University of Chicago, where he remained for the rest of his life. On 29 May 1954 he married Mary Jane Krensky; they had three daughters.

Kurland was at the center of sharp battles over the appropriate role of the U.S. Supreme Court during the 1950s and 1960s. “Don’t shoot the piano player. He’s doing his best,” Kurland said in a 1964 critique of the Court. In 1969 he spoke of the Court’s “essentially anti-democratic character” and opined that its justices were “full of the devil.” But gradually Kurland came to view the Constitution as a complex system that could not be reduced to any single component. His service as the chief consultant to the U.S. Senate Subcommittee on Separation of Powers from 1967 to 1974 under Senator Sam Ervin was central in this evolution. “If the history of the origins of our Constitution teach[es] us anything,” Kurland wrote in 1970, “it must be that one great fear of the Constitution’s makers was the danger of a strong and arbitrary executive.” He reviewed the Watergate transcripts for Ervin, who chaired the Senate Watergate committee, and concluded that the transcripts would support an impeachment charge against President Richard M. Nixon.

In 1975 Kurland had a “real shot” at an appointment to the Supreme Court himself. Attorney General Edward Levi, a University of Chicago colleague and close friend, ran the selection process to replace Justice William O. Douglas for President Gerald Ford. But when Levi, who could have had the position himself, quietly mentioned Kurland within the administration, officials noted Kurland’s aggressive positions on Congress’s prerogatives and relative limitations on executive power. That concerned Levi, who backed off.

Kurland took a particular interest in religious issues. In a trailblazing article, “Of Church and State and the Supreme Court” in the 1961 University of Chicago Law Review, he proposed that the First Amendment’s religious clauses “should be read as a single precept” forbidding government from using religion as “a standard for action or inaction.” The Supreme Court cited Kurland’s article in several opinions, and his reasoning gained increasing currency over the years.

Kurland grew so disenchanted with the academy during the turmoil of the late 1960s and early 1970s that he talked about leaving teaching to establish his own law firm, perhaps in New York City. He opened a 1971 book, Mr. Justice Frankfurter and the Constitution, a subject dear to him, speaking of “the academic community in which I try to work,” and closed it by noting, “If not the man for this season, one may hope that he [Frankfurter] will be the man for the next one, if there is a next one.” This bespoke Kurland’s despair at the time. He estranged himself from the law school, viewing its concerns and faculty appointments dimly. In the mid-1970s, however, he began teaching law and humanities to undergraduates and was actively involved to undergraduate faculty affairs. It was no longer thing Kurland did easily, given his sedentary nature and inclinations. From his new office on the eighth floor of the Harper Library, he said he “could now look down on the law school.”

The essay was Kurland’s favorite literary form, not the least reason being that it enabled him to show the fruits of his wide reading. Watergate and the Constitution (1978), a collection of essays and speeches, sparkles with vigor and insights into the greatest constitutional crisis since the Civil War to that date. Although Kurland said his tone was frequently “acerbic, ironic, sardonic, iconoclastic,” all “appropriate to the subject matter,” his judgments were more measured and understanding than previously, with a greater recognition of human folly and foibles. They were also more rooted in history.

Kurland collaborated with Ralph Lerner, at Lerner’s suggestion, to edit The Founders’ Constitution (1987), a five-volume set of primary documents that has aptly been called “the Oxford English Dictionary of American constitutional history.” “If the Constitution is to be a viable instrument of governance,” Kurland wrote in the introduction, “then it must (as it has to a great degree) cut itself free from its eighteenth-century moorings. The thought of the Founders, even to the extent it is discoverable,… cannot be binding.” Nevertheless, their “principal objective” was “the preservation and advancement of individual liberty.”

In 1987 Kurland adamantly opposed Robert Bork’s nomination to the Supreme Court. He had worked with Bork, whom he had known since 1953. While most of his colleagues at the University of Chicago ardently supported the nomination, Kurland assisted the Senate Judiciary Committee in depicting Bork as a “Dr. Jekyll and Mr. Hyde” who shed a traditional legal approach to adopt “original intent,” which was “merely a slogan,” a vehicle to enable Bork to embrace more conservative views reflecting his “personal predilections.” Kurland wrote a widely circulated article quoting Bork’s earlier writings against his current views, and he testified before the Senate against the nominee, who was defeated.

Kurland’s writings were “rather flavorful and pungent and filled with exciting alliteration,” as one senator observed during the Bork hearings. Although he feigned an air of nonchalance and called himself a “trimmer,” a skeptic rather than a believer, Kurland left little doubt where he stood. Increasingly he relied on the power of history to make his points. He frequently couched his seriousness in irony, with which history also abounded. Socially he often smiled sheepishly, for underneath, as friends put it, he was a “pussycat.” Over time and especially in his later years he became more compassionate. His writing was no longer as carping, but he never lost his stinging wit. When a colleague observed, “No lawyer would,” Kurland interrupted. “Stop right there,” he said. “There is no way you can finish that sentence.”

In 1960 Kurland founded the Supreme Court Review, which he edited until 1988. He felt he “made a mistake” in giving it up. He started researching a biography of Justice Robert H. Jackson but did not in any serious way pursue writing it, feeling he did not want to be a party to aspects of Jackson’s private life. Starting in the 1970s, Kurland became counsel to a Chicago law firm, representing a variety of public and private clients. He worked on a collection of Justice Frankfurter’s letters for several years before his death.

Kurland’s first wife died in 1992, and he married Alice Hoag Bator on 12 February 1993. Kurland, who had a heart condition, died as the result of pneumonia.

Kurland gloried in having his opinion sought publicly, but he also prized a separate sphere in which “the private I” could flourish. As one of the most prominent constitutional commentators of his generation, Kurland continued the intellectual tradition of Frankfurter, “confident in the strength and security derived from the inquiring mind…unafraid of the uncertitudes,” as he wrote of his mentor, and reveling in the joyous complexities of life.

Kurland’s papers are in the Regenstein Library at the University of Chicago. His extensive correspondence with Frankfurter is in the Frankfurter papers at Harvard Law School and at the Library of Congress. Sources on Kurland include Mark Tushnet, “‘Of Church and State and the Supreme Court’: Kurland Revisited,” Supreme Court Review (1989): 373; and Mark Gitenstein, Matters of Principle (1992). Tributes are in the University of Chicago Law Review 59 (1992) and 64 (1997). An obituary is in the New York Times (18 Apr. 1996).

Roger K. Newman