John Marshall Harlan II

John Marshall Harlan
Associate Justice of the United States Supreme Court
In office March 28, 1955 – September 23, 1971
Nominated by	Dwight D. Eisenhower
Preceded by	Robert H. Jackson
Succeeded by	William Rehnquist

John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American jurist. He served as an Associate Justice of the Supreme Court from 1955 to 1971. He was the grandson of his namesake, John Marshall Harlan, another associate justice who served from 1877 to 1911.

Harlan is often characterized as a member of the conservative wing of the Warren Court. He advocated a limited role for the judiciary, remarking that the Supreme Court should not be considered "a general haven for reform movements." In general, Harlan adhered more closely to precedent, and was more reluctant to overturn legislation, than many of his colleagues on the Court. He strongly disagreed with the doctrine of incorporation, which held that the guarantees of the federal Bill of Rights were applicable at the state level. At the same time, he advocated a broad interpretation of the Fourteenth Amendment's Due Process Clause, arguing that it protected a wide range of rights not expressly mentioned in the United States Constitution. Harlan is sometimes called the "great dissenter" of the Warren Court, and is often regarded as one of the most influential Supreme Court justices in the twentieth century.

Early life

John Marshall Harlan was born on May 20, 1899 in Chicago, Illinois. He was the son of John Maynard Harlan, a Chicago lawyer and politician, and Elizabeth Flagg. Harlan's family had, historically, been a politically active one. His forebear, George Harlan, served as Governor of Delaware during the seventeenth century; his great-grandfather, James Harlan, was a congressman during the 1830s; and his grandfather, also John Marshall Harlan, was a Justice of the United States Supreme Court.

In his younger years, Harlan attended The Latin School of Chicago. Harlan later attended two boarding high schools in Canada, Upper Canada College in Toronto, and Appleby College also near Toronto. Upon graduation from Appleby, Harlan returned to the U.S. and enrolled at Princeton University. There, he was a member of the Ivy Club, served as an editor of The Daily Princetonian, and was class president during his junior and senior years. After graduating from the university in 1920, he received a Rhodes Scholarship, which he used to attend Balliol College, Oxford. He studied jurisprudence at Oxford for three years, returning from England in 1923. Upon his return to the United States, he began work with the law firm of Root, Clark, Buckner & Howland (now known as Dewey & LeBoeuf), one of the leading law firms in the country, while studying law at New York Law School. He received his law degree in 1924 and earned admission to the bar in 1925. In 1928, he married Ethel Andrews, with whom he had one daughter, Eva Dillingham.

Between 1925 and 1927, Harlan served as Assistant U.S. Attorney for the Southern District of New York, heading the district's Prohibition unit. In 1928, he was appointed Special Assistant Attorney General of New York, in which capacity he investigated a scandal involving sewer construction in Queens. He prosecuted Maurice E. Connolly, the Queens borough president, for his involvement in the affair. In 1930, Harlan returned to his old law firm, reaching the rank of partner one year later. At the firm, he long served as chief assistant for Emory Buckner.

In 1937, Harlan was one of five founders of the controversial Pioneer Fund, a group associated with eugenics advocacy. In private practice, he handled a variety of notable cases. In 1940, for example, he represented the New York Board of Higher Education in its unsuccessful effort to retain Bertrand Russell on the faculty of the City College of New York; Russell was declared "morally unfit" to teach.

During World War II, Harlan volunteered for military duty, serving as a colonel in the United States Army Air Force from 1943 to 1945. He was the chief of the Operational Analysis Section of the Eighth Air Force in England. He won the Legion of Merit from the United States, and the croix de guerre from both France and Belgium. In 1946, soon after the end of the war, Harlan returned to private law practice. In 1951, however, he returned to public service, serving as Chief Counsel to the New York State Crime Commission.

Supreme Court career

On January 13, 1954, United States President Dwight D. Eisenhower nominated Harlan to the United States Court of Appeals for the Second Circuit, to fill a vacancy created by the death of Judge Augustus Noble Hand. He was confirmed by the United States Senate on February 9, and took office on February 10. Harlan knew this court well, as he had often appeared before it. However, his stay on the court only lasted for about one year. On January 10, 1955, President Eisenhower nominated Harlan to the Supreme Court following the death of Justice Robert H. Jackson.

File:John Marshall Harlan II.gif

Harlan was nominated to the Supreme Court in 1955.

Harlan's nomination came shortly after the Supreme Court handed down its landmark decision in Brown v. Board of Education, 347 U.S. 483 (1954), declaring segregation in public schools unconstitutional. Several Southern senators who wanted to delay the implementation of this ruling attempted to block Harlan's confirmation. Unlike almost all previous Supreme Court nominees, Harlan appeared before the United States Senate Committee on the Judiciary to answer questions relating to his judicial views. This appearance set a new precedent; since Harlan, every Supreme Court nominee has been questioned by the Judiciary Committee. The Senate finally confirmed him on March 16, 1955 by a vote of 71–11. Of the eleven senators who voted against his appointment, nine were from the South. He was replaced on the Second Circuit by Joseph Edward Lumbard.

On the Supreme Court, Harlan often voted alongside Justice Felix Frankfurter. He was an ideological adversary—but close personal friend—of Justice Hugo Black, with whom he disagreed on a variety of issues, including the applicability of the Bill of Rights to the states, the Due Process Clause, and the Equal Protection Clause.

Jurisprudence

Harlan's jurisprudence is often characterized as conservative. He held precedent to be of great importance, adhering to the principle of stare decisis more closely than many of his Supreme Court colleagues. Unlike his contemporary Hugo Black, he eschewed strict textualism. While he believed that the original intention of the Framers should play an important part in constitutional adjudication, he also held that broad phrases like "liberty" in the Due Process Clause could be given an evolving interpretation.

Harlan believed that most problems should be solved by the political process, and that the judiciary should play only a limited role. In his dissent to Reynolds v. Sims, 377 U.S. 533 (1964), he wrote:

These decisions give support to a current mistaken view of the Constitution and the constitutional function of this court. This view, in short, is that every major social ill in this country can find its cure in some constitutional principle and that this court should take the lead in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare nor should this court, ordained as a judicial body, be thought of as a general haven of reform movements.(377 U.S. 533 (1964), Harlan J., dissenting)

Due Process Clause

Justice Harlan advocated a broad interpretation of the Fourteenth Amendment's Due Process Clause. He subscribed to the doctrine that the clause not only provided procedural guarantees, but also protected a wide range of fundamental rights, including those that were not specifically mentioned in the text of the Constitution. (See substantive due process.) However, as Justice Byron White noted in his dissenting opinion in Moore v. East Cleveland, "no one was more sensitive than Mr. Justice Harlan to any suggestion that his approach to the Due Process Clause would lead to judges 'roaming at large in the constitutional field.'" Under Harlan's approach, judges would be limited in the Due Process area by "respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms." (381 U.S. 479 (1965), Harlan, J., concurring in the judgment, p.501–502)

Harlan set forth his interpretation in an oft-cited dissenting opinion to Poe v. Ullman, 367 U.S. 497 (1961), which involved a challenge to a Connecticut law banning the use of contraceptives. The Supreme Court dismissed the case on technical grounds, holding that the case was not ripe for adjudication. Justice Harlan dissented from the dismissal, suggesting that the Court should have considered the merits of the case. Thereafter, he indicated his support for a broad view of the due process clause's reference to "liberty." He wrote, "This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."(367 U.S. 497 (1961), Harlan, J., dissenting) He suggested that the due process clause encompassed a right to privacy, and concluded that a prohibition on contraception violated this right.

The same law was challenged again in Griswold v. Connecticut, 381 U.S. 479 (1965). This time, the Supreme Court agreed to consider the case, and concluded that the law violated the Constitution. However, the decision was based not on the due process clause, but on the argument that a right to privacy was found in the "penumbras" of other provisions of the Bill of Rights. Justice Harlan concurred in the result, but criticized the Court for relying on the Bill of Rights in reaching its decision. "The Due Process Clause of the Fourteenth Amendment stands," he wrote, "on its own bottom." (381 U.S. 479 (1965), Harlan, J., concurring) The Supreme Court would later adopt Harlan's approach, relying on the due process clause rather than the penumbras of the Bill of Rights in right to privacy cases such as Roe v. Wade, 410 U.S. 113 (1972) and Lawrence v. Texas, 539 U.S. 558 (2003).

Harlan's interpretation of the Due Process Clause attracted the criticism of Justice Black. Black rejected the idea that the Due Process Clause included a "substantive" component; he considered this interpretation unjustifiably broad and historically unsound. The Supreme Court has sided with Harlan, and has continued to apply the doctrine of substantive due process in a wide variety of cases.

Incorporation

Justice Harlan was strongly opposed to the theory that the Fourteenth Amendment "incorporated" the Bill of Rights—that is, made the provisions of the Bill of Rights applicable to the states. When it was originally ratified, the Bill of Rights was binding only upon the federal government, as the Supreme Court ruled in Barron v. Baltimore (32 U.S. 243 (1833)). Some jurists argued that the Fourteenth Amendment made the entirety of the Bill of Rights binding upon the states as well. Harlan, however, rejected this doctrine, which he called "historically unfounded" in his Griswold concurrence.

Instead, Justice Harlan believed that the Fourteenth Amendment's due process clause only protected "fundamental" rights. (See Due Process Clause above.) Thus, if a guarantee of the Bill of Rights was "fundamental" or "implicit in the concept of ordered liberty," Harlan agreed that it applied to the states as well as the federal government. Thus, for example, Harlan believed that the First Amendment's free speech clause applied to the states, but that the Fifth Amendment's self incrimination clause did not.

Harlan's approach was largely similar to that of Justices Benjamin Cardozo and Felix Frankfurter. It drew criticism from Justice Black, a proponent of the total incorporation theory. Black claimed that the process of identifying some rights as more "fundamental" than others was largely arbitrary, and depended on each Justice's personal opinions.

The Supreme Court has sided with Harlan, holding that only "fundamental" Bill of Rights guarantees were applicable against the states. However, under Chief Justice Earl Warren during the 1960s, an increasing number of rights were deemed sufficiently fundamental for incorporation. (Harlan regularly dissented from these rulings.) Hence, almost all of provisions of the Bill of Rights have been extended to the states; the only exceptions are the Second Amendment, the Third Amendment, the grand jury clause of the Fifth Amendment, the Seventh Amendment, the excessive bail provision of the Eighth Amendment, the Ninth Amendment, and the Tenth Amendment. Thus, although the Supreme Court has agreed with Harlan's general reasoning, the end result of its jurisprudence is very different from what Harlan advocated.

First Amendment

Justice Harlan concurred in many of the Warren Court's landmark decisions relating to the separation of church and state. For instance, he voted in favor of the Court's ruling that the states could not use religious tests as qualifications for public office in Torcaso v. Watkins, 367 U.S. 488 (1961). He joined Engel v. Vitale, 370 U.S. 421 (1962), which declared that it was unconstitutional for states to require the recitation of official prayers in public schools. In Epperson v. Arkansas, 393 U.S. 97 (1968), similarly, he voted to strike down an Arkansas law banning the teaching of evolution.

In many cases, Harlan took a fairly broad view of First Amendment rights such as the freedom of speech and of the press, but felt that the guarantees of the First Amendment applied more stringently to the federal government than the states because of the federalism principle he believed implicit in the Constitution. He concurred in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which required public officials suing newspapers for libel to prove that the publisher had acted with "actual malice." This stringent standard made it much more difficult for public officials to win libel cases. However, Harlan did not go as far as Justices Hugo Black and William O. Douglas, who suggested that all libel laws were unconstitutional. In Street v. New York, 394 U.S. 576 (1969), Harlan delivered the opinion of the court, ruling that the government could not punish an individual for insulting the American flag.

Harlan also penned the majority opinion in Cohen v. California, 403 U.S. 15 (1971), holding that wearing a jacket emblazoned with the words "Fuck the Draft" was speech protected by the First Amendment. In the Cohen opinion, Harlan famously wrote "one man's vulgarity is another's lyric," a quote that was later denounced by Robert Bork as "moral relativism".

Moreover, Justice Harlan believed that federal laws censoring "obscene" publications violated the free speech clause. Thus, he dissented from Roth v. United States, 354 U.S. 476 (1957), in which the Supreme Court upheld the validity of a federal obscenity law. At the same time, Harlan did not believe that the Constitution prevented the states from censoring obscenity. He explained in his Roth dissent:

The danger is perhaps not great if the people of one State, through their legislature, decide that Lady Chatterley's Lover goes so far beyond the acceptable standards of candor that it will be deemed offensive and non-sellable, for the State next door is still free to make its own choice. At least we do not have one uniform standard. But the dangers to free thought and expression are truly great if the Federal Government imposes a blanket ban over the Nation on such a book. [...] The fact that the people of one State cannot read some of the works of D. H. Lawrence seems to me, if not wise or desirable, at least acceptable. But that no person in the United States should be allowed to do so seems to me to be intolerable, and violative of both the letter and spirit of the First Amendment.(354 U.S. 476 (1957), Harlan, J., dissenting)

Justice Harlan did not believe that individuals were entitled to exercise their First Amendment rights wherever they pleased. He joined in Adderley v. Florida, 385 U.S. 39 (1966), which controversially upheld a trespassing conviction for protesters who demonstrated on government property. He dissented from Brown v. Louisiana, 383 U.S. 131 (1966), in which the Court held that protesters were entitled to engage in a sit-in at a public library. Likewise, he disagreed with Tinker v. Des Moines, 393 U.S. 503 (1969), in which the Supreme Court ruled that students had the right to wear armbands (as a form of protest) in public schools.

Criminal procedure

During the 1960s the Warren Court made a series of rulings expanding the rights of criminal defendants. In some instances, Justice Harlan concurred in the result; Gideon v. Wainwright, 372 U.S. 335 (1963) is one notable example. In many other cases, however, Harlan found himself in dissent. He was usually joined by the other members of the Court's moderate wing, Justices Potter Stewart, Tom Clark, and Byron White.

Most notably, Harlan dissented from Supreme Court rulings restricting interrogation techniques used by law enforcement officers. For example, he dissented from the Court's holding in Escobedo v. Illinois, 378 U.S. 478 (1964) that the police could not refuse to honor a suspect's request to consult with his lawyer during an interrogation. Harlan called the rule "ill-conceived" and suggested that it "unjustifiably fetters perfectly legitimate methods of criminal law enforcement." He disagreed with Miranda v. Arizona, 384 U.S. 436 (1965), which required law enforcement officials to warn a suspect of his rights before questioning him (see Miranda warning). He closed his dissenting opinion with a quotation from his predecessor, Justice Robert Jackson: "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."(384 U.S. 436 (1966), Harlan, J., dissenting)

In Gideon v. Wainwright, 372 U.S. 335 (1963), Justice Harlan agreed that the Constitution required states to provide attorneys for defendants who could not afford their own counsel. However, he believed that this requirement applied only at trial, and not on appeal; thus, he dissented from Douglas v. California, 372 U.S. 353 (1963).

Harlan was the author of Leary v. United States, 395 U.S. 6 (1969)—a case that declared Marijuana Tax Act unconstitutional based on the Fifth Amendment protection against self-incrimination.

Justice Harlan's concurrence in Katz v. United States (389 U.S. 347 (1967)) is often cited for setting forth the test for determining whether government conduct constituted a search. According to Justice Harlan, there is a two-part requirement for a search: 1. That the individual have a subjective expectation of privacy; and 2. That the individual's expectation of privacy is "one that society is prepared to recognize as 'reasonable.'" (see Katz v. United States)

Civil rights

The Supreme Court decided several important civil rights cases during the first years of Harlan's career. In these cases, Harlan regularly sided with the civil rights movement (similar to his namesake, the only dissenting justice in the infamous Plessy v. Ferguson case). He was a monumental judge during the civil rights movement, and if it hadn't been for his decisions of justice and equality, many rights given to minorities today would most likely be hard to imagine.

In NAACP v. Alabama, 357 U.S. 449 (1958), Justice Harlan delivered the opinion of the court, invalidating an Alabama law that required the NAACP to disclose membership lists. He joined in Cooper v. Aaron, 358 U.S. 1 (1958), compelling defiant officials in Arkansas to desegregate public schools. He joined the opinion in Gomillion v. Lightfoot, 364 U.S. 339 (1960), which declared that states could not redraw political boundaries in order to reduce the voting power of African-Americans. Moreover, he concurred in Loving v. Virginia, 388 U.S. 1 (1967), which struck down state laws that banned interracial marriage.

Voting rights

Justice Harlan rejected the theory that the Constitution enshrined the so-called "one man, one vote" principle, or the principle that legislative districts must be roughly equal in population. In this regard, he shared the views of Justice Felix Frankfurter, who admonished the courts to stay out of the "political thicket" of reapportionment. The Supreme Court, however, disagreed with Harlan in a series of rulings during the 1960s. The first case in this line of rulings was Baker v. Carr, 369 U.S. 186 (1962). The Court ruled that malapportionment issues presented justiciable questions, and that the courts were entitled to review the validity of district boundaries. Harlan, however, dissented, on the grounds that the plaintiffs failed to demonstrate that malapportionment violated their individual rights.

Then, in Wesberry v. Sanders, 376 U.S. 1 (1964) the Supreme Court, relying on the Constitution's requirement that the United States House of Representatives be elected "by the People of the several States," ruled that congressional districts in any particular state must be approximately equal in population. Harlan vigorously dissented, writing, "I had not expected to witness the day when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives. It is not an exaggeration to say that such is the effect of today's decision."(376 U.S. 1 (1964), Harlan, J., dissenting) He proceeded to argue that the Court's decision was inconsistent with both the history and text of the Constitution; moreover, he claimed that only Congress, not the judiciary, had the power to require congressional districts with equal populations.

Harlan was the sole dissenter in Reynolds v. Sims, 377 U.S. 533 (1964), in which the Court relied on the Equal Protection Clause to extend the one man, one vote principle to state legislative districts. He analyzed the language and history of the Fourteenth Amendment, and concluded that the Equal Protection Clause was never intended to encompass voting rights. Because the Fifteenth Amendment would have been superfluous if the Fourteenth Amendment (the basis of the reapportionment decisions) had conferred a general right to vote, he claimed that the Constitution did not require states to adhere to the one man, one vote principle, and that the Court was merely imposing its own political theories on the nation. He suggested, in addition, that the problem of malapportionment was one that should be solved by the political process, and not by litigation. He wrote:

This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court, in reality, substitutes its view of what should be so for the amending process.(Reynolds v. Sims, Harlan, J., dissenting)

For similar reasons, Harlan dissented from Carrington v. Rash, 383 U.S. 663 (1966), in which the Court held that voter qualifications were subject to scrutiny under the equal protection clause. He claimed in his dissent, "the Court totally ignores, as it did in last Term's reapportionment cases [...] all the history of the Fourteenth Amendment and the course of judicial decisions which together plainly show that the Equal Protection Clause was not intended to touch state electoral matters."(380 U.S. 89 (1965), Harlan, J., dissenting) Similarly, Justice Harlan disagreed with the Court's ruling in Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) invalidating the use of the poll tax as a qualification to vote.

Retirement and death

John M. Harlan's health began to deteriorate towards the end of his career. His eyesight began to fail during the late 1960s. Gravely ill, he retired from the Supreme Court on September 23, 1971.

Harlan died from spinal cancer three months later, on December 29, 1971. He was buried at the Emmanuel Church Cemetery in Weston, Connecticut. President Richard Nixon considered nominating Mildred Lillie, a California appeals court judge, to fill the vacant seat; Lillie would have been the first female nominee to the Supreme Court. However, Nixon decided against Lillie's nomination after the American Bar Association found Lillie to be unqualified. Thereafter, Nixon nominated William Rehnquist (the future Chief Justice), who was confirmed by the Senate.

Harlan's extensive professional and Supreme Court papers were donated to Princeton University, where they are housed at the Seely G. Mudd Manuscript Library and open to research.

Quotes about Harlan

• "As recently as 1969, Justice John Marshall Harlan, the Court's most distinguished conservative member after Felix Frankfurter's retirement, had noted that the Supreme Court had consistently "rejected all manner of prior restraint on publication." Floyd Abrams, in reference to freedom of the press.

Additional reading

• Dorsen, Norman. (Editor). (2001). John Marshall Harlan II: Remembrances by his Law Clerks.
• Shapiro, David L. (Editor). (1969). The Evolution of a Judicial Philosophy: Selected Opinions and Papers of Justice John M. Harlan. Cambridge, MA: Harvard University Press. 1969.
• Mayer, Martin. Emory Buckner (1968). New York: Harper & Row. (Harlan arranged for Mayer to write this book about his mentor Emory Buckner and wrote the book's Introduction.)
• Yarbrough, Tinsley E. (1992). John Marshall Harlan : Great Dissenter of the Warren Court. New York: Oxford University Press.

External links

• Supreme Court Historical Society. "John Marshall Harlan II."