KURLAND, PHILIP B. (1921–1996)

Philip B. Kurland was, with alexander m. bickel, one of the principal scholarly critics of the warren court. Beginning with a sharply pointed and controversial foreword in 1964 to the Harvard Law Review 's annual survey of the Supreme Court's work, Kurland condemned what he saw as the Court's penchant to undertake social reform at the expense of precedent, history, and practical consequences. His Cooley Lectures at the University of Michigan, published as Politics, the Constitution, and the Warren Court (1970), were a lawyer's meticulous, and often sarcastic, critique of almost every aspect of the Court's work. He also edited collections of extrajudicial essays (Felix Frankfurter and the Supreme Court, 1970) and judicial opinions by Justice felix frankfurter (Mr. Justice Frankfurter and the Constitution, 1971), for whom he had clerked after a clerkship with jerome n. frank following his graduation from Harvard Law School and the University of Pennsylvania. Kurland readily identified himself with Frankfurter's view of the judicial role. The emphasis of both was on "judicial restraint," although not to the point of ignoring what both viewed as bright lines established either by the text of the Constitution or by settled precedent.

Although often mentioned in speculative short lists for an appointment to the Court in the 1970s, he never sought judicial office and spent all but three years of his forty-three-year career teaching at the University of Chicago, in both the College and the Law School. He served as an adviser to numerous federal and state governmental bodies, including the senate judiciary committee on several occasions. Senator samuel j. ervin consulted him during the watergate affair. Near the end of his career, Kurland played a prominent role in op-ed pages and as an adviser to the chairman of the Senate Judiciary Committee, opposing the nomination of Robert H. Bork to the Court in 1987.

Kurland's scholarly legacy rests less on his theoretical work—although Religion and the Law (1960) remains influential—than on his trenchant critiques of particular cases or issues, such as school desegregation and separation of powers (Watergate and the Constitution, 1978); and on his editorial work, which included founding The Supreme Court Review in 1960 and co-editing the multi-volume collection of commentaries on the Constitution, The Founders' Constitution (1986, with Ralph Lerner). At his death, he left two unfinished projects, an edition of Frankfurter's letters and the authorized biography of robert h. jackson.

Dennis J. Hutchinson
(2000)

(see also: Judicial Activism and Judicial Restraint.)