US Supreme Court justice from 1955 to 1971
John Marshall Harlan II
|
---|
|
|
|
In office
March 28, 1955 ? September 23, 1971
|
Nominated by
| Dwight D. Eisenhower
|
---|
Preceded by
| Robert H. Jackson
|
---|
Succeeded by
| William Rehnquist
|
---|
|
In office
February 10, 1954 ? March 27, 1955
|
Nominated by
| Dwight D. Eisenhower
|
---|
Preceded by
| Augustus Noble Hand
|
---|
Succeeded by
| J. Edward Lumbard
|
---|
|
|
Born
| John Marshall Harlan
(
1899-05-20
)
May 20, 1899
Chicago
,
Illinois
, U.S.
|
---|
Died
| December 29, 1971
(1971-12-29)
(aged 72)
Washington, D.C.
, U.S.
|
---|
Resting place
| Emmanuel Church Cemetery,
Weston
,
Connecticut
, U.S.
|
---|
Spouse
|
Ethel Andrews
(
m.
1928)
|
---|
Children
| 1
|
---|
Parent
| |
---|
Relatives
| John Marshall Harlan
(grandfather)
|
---|
Education
| Princeton University
(
AB
)
Balliol College, Oxford
New York Law School
(
LLB
)
|
---|
|
Allegiance
| United States
|
---|
Branch/service
| |
---|
Years of service
| 1943?1945
|
---|
Rank
| Colonel
|
---|
|
John Marshall Harlan
(May 20, 1899 ? December 29, 1971) was an American lawyer and jurist who served as an
associate justice of the U.S. Supreme Court
from 1955 to 1971. Harlan is usually called
John Marshall Harlan II
to distinguish him from his grandfather,
John Marshall Harlan
, who served on the U.S. Supreme Court from 1877 to 1911.
Harlan was a student at
Upper Canada College
and
Appleby College
and then at
Princeton University
. Awarded a
Rhodes Scholarship
, he studied law at
Balliol College, Oxford
.
[1]
Upon his return to the U.S. in 1923 Harlan worked in the law firm of
Root, Clark, Buckner & Howland
while studying at
New York Law School
. Later he served as Assistant
U.S. Attorney for the Southern District of New York
and as Special Assistant Attorney General of New York. In 1954 Harlan was appointed to the
United States Court of Appeals for the Second Circuit
, and a year later president
Dwight Eisenhower
nominated Harlan to the United States Supreme Court following the death of Justice
Robert H. Jackson
.
[2]
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".
[3]
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 provisions of the
federal Bill of Rights
applied to the state governments, not merely the Federal.
[4]
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
.
[4]
Justice Harlan was gravely ill when he retired from the Supreme Court on September 23, 1971.
[5]
He died from
spinal cancer
three months later on December 29, 1971. After Harlan's retirement,
President Nixon
appointed
William Rehnquist
to replace him.
Early life and career
[
edit
]
John Marshall Harlan was born on May 20, 1899, in
Chicago
.
[2]
He was the son of
John Maynard Harlan
, a Chicago lawyer and politician, and Elizabeth Flagg. He had three sisters.
[6]
Historically, Harlan's family had been politically active. His forebear George Harlan served as one of the governors of
Delaware
during the seventeenth century; his great-grandfather
James Harlan
was a congressman during the 1830s;
[7]
his grandfather, also John Marshall Harlan, was an associate justice of the United States Supreme Court from 1877 to 1911; and his uncle,
James S. Harlan
, was attorney general of
Puerto Rico
and then chairman of the
Interstate Commerce Commission
.
[5]
[7]
In his younger years, Harlan attended
The Latin School of Chicago
.
[1]
He later attended two boarding high schools in the
Toronto Area
, Canada:
Upper Canada College
and
Appleby College
.
[1]
Upon graduation from Appleby, Harlan returned to the U.S. and in 1916 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.
[1]
After graduating from the university in 1920 with an
Artium Baccalaureus
degree, he received a
Rhodes Scholarship
to attend Balliol College, Oxford, making him the first Rhodes Scholar to sit on the Supreme Court.
[7]
He studied jurisprudence at Oxford for three years, returning from England in 1923.
[5]
Upon his return to the United States, he began work with the law firm of Root, Clark, Buckner & Howland (which became
Dewey & LeBoeuf
), one of the leading law firms in the country, while studying law at New York Law School. He received his
Bachelor of Laws
in 1924 and earned admission to the bar in 1925.
[8]
Between 1925 and 1927, Harlan served as
Assistant United States Attorney
for the
Southern District of New York
, heading the district's
Prohibition
unit.
[8]
He prosecuted
Harry M. Daugherty
, former United States Attorney General.
[5]
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.
[2]
In 1930, Harlan returned to his old law firm, becoming a partner one year later. At the firm, he served as chief assistant for senior partner
Emory Buckner
and followed him into public service when Buckner was appointed
United States Attorney
for the Southern District of New York. As one of "Buckner's Boy Scouts", eager young Assistant United States Attorneys, Harlan worked on Prohibition cases, and swore off drinking except when the prosecutors visited the Harlan family fishing camp in
Quebec
, where Prohibition did not apply.
[9]
Harlan remained in public service until 1930, and then returned to his firm. Buckner had also returned to the firm,
[9]
and after Buckner's death, Harlan became the leading
trial lawyer
at the firm.
[5]
As a trial lawyer Harlan was involved in a number of famous cases. One such case was the conflict over the estate left after the death in 1931 of
Ella Wendel
, who had no heirs and left almost all her wealth, estimated at $30?100 million, to churches and charities. However, a number of claimants, most of them imposters, filed suits in state and federal courts seeking part of her fortune. Harlan acted as the main defender of her estate and will as well as the chief negotiator. Eventually a settlement among lawful claimants was reached in 1933.
[10]
In the following years Harlan specialized in corporate law dealing with the cases like
Randall v. Bailey
,
[11]
concerning the interpretation of state law governing distribution of corporate
dividends
.
[12]
In 1940, he represented the New York Board of Higher Education unsuccessfully in
the Bertrand Russell case
in its efforts to retain
Bertrand Russell
on the faculty of the
City College of New York
; Russell was declared "morally unfit" to teach.
[7]
The future justice also represented boxer
Gene Tunney
in a breach of contract suit brought by a would-be fight manager, a matter settled out of court.
[9]
[12]
In 1937, Harlan was one of five founders of a
eugenics
advocacy group called the
Pioneer Fund
, which had been formed to introduce Nazi ideas on eugenics to the United States. He had likely been invited into the group due to his expertise in non-profit organizations. Harlan served on the Pioneer Fund's board until 1954. He did not play a significant role in the fund.
[13]
[14]
During World War II, Harlan volunteered for military duty, serving as a
colonel
in the
United States Army Air Forces
from 1943 to 1945. He was the chief of the
Operational Analysis
Section of the Eighth Air Force in England.
[5]
He won the
Legion of Merit
from the United States, and the Croix de Guerre from both
France
and
Belgium
.
[5]
In 1946 Harlan returned to private law practice representing
Du Pont family
members against a federal antitrust lawsuit. In 1951, however, he returned to public service, serving as Chief Counsel to the New York State Crime Commission, where he investigated the relationship between organized crime and the state government as well as illegal gambling activities in New York and other areas.
[5]
[7]
During this period Harlan also served as a committee chairman of the
Association of the Bar of the City of New York
, and to which he was later elected vice president. Harlan's main specialization at that time was
corporate
and
antitrust law
.
[5]
Personal life
[
edit
]
In 1928, Harlan married Ethel Andrews, who was the daughter of Yale history professor
Charles McLean Andrews
.
[6]
This was the second marriage for her. Ethel was originally married to New York architect Henry K. Murphy, who was twenty years her senior. After Ethel divorced Murphy in 1927, her brother John invited her to a Christmas party at
Root, Clark, Buckner & Howland
,
[15]
where she was introduced to John Harlan. They saw each other regularly afterwards and married on November 10, 1928, in
Farmington, Connecticut
.
[6]
Harlan, a
Presbyterian
, maintained a New York City apartment, a summer home in
Weston, Connecticut
, and a fishing camp in
Murray Bay, Quebec
,
[12]
a lifestyle he described as "awfully tame and correct".
[9]
The justice played golf, favored tweeds, and wore a gold watch which had belonged to the first Justice Harlan.
[9]
In addition to carrying his grandfather's watch, when he joined the Supreme Court he used the same furniture which had furnished his grandfather's chambers.
[9]
John and Ethel Harlan had one daughter, Evangeline Dillingham (born on February 2, 1932).
[6]
She was married to Frank Dillingham of
West Redding, Connecticut
, until his death, and had five children.
[5]
[16]
One of Eve's children, Amelia Newcomb, is the international news editor at
The Christian Science Monitor
[17]
and has two children: Harlan, named after John Marshall Harlan II, and Matthew Trevithick.
[18]
Another daughter,
Kate Dillingham
, is a professional cellist and published author.
Second Circuit service
[
edit
]
Harlan was nominated by President
Dwight D. Eisenhower
on January 13, 1954, to a seat on the
United States Court of Appeals for the Second Circuit
vacated by Judge
Augustus Noble Hand
. Harlan knew this court well, as he had often appeared before it and was friendly with many of the judges.
[9]
He was confirmed by the
United States Senate
on February 9, 1954, and received his commission on the next day. His service terminated on March 27, 1955, due to his elevation to the Supreme Court.
[19]
Supreme Court service
[
edit
]
Harlan was nominated by President Eisenhower on January 10, 1955, as an
associate justice of the Supreme Court of the United States
, to succeed Robert H. Jackson.
[2]
On being nominated, the reticent Harlan called reporters into his chambers in New York, and stated, in full, "I am very deeply honored."
[20]
He was confirmed by the Senate on March 16, 1955, by a 71?11 vote,
[21]
and was
sworn into office
on March 28, 1955.
[22]
Despite the brevity of his stay on the Second Circuit, Harlan would serve as the
Circuit Justice
responsible for the Second Circuit throughout his Supreme Court capacity, and, in that capacity, enjoyed attending the Circuit's annual conference, bringing his wife and catching up on the latest gossip.
[9]
Additionally, he served as Circuit Justice for the Ninth Circuit from June 25 to June 26, 1963. He assumed
retired status
on September 23, 1971, serving in that capacity until his death on December 29, 1971.
[19]
Harlan's nomination came shortly after the Supreme Court handed down its landmark decision in
Brown v. Board of Education
,
[23]
declaring segregation in public schools unconstitutional.
James Eastland
(the chairman of the
United States Senate Committee on the Judiciary
) and several other southern senators delayed his confirmation, because they (correctly) believed that he would support desegregation of the schools and
civil rights
.
[24]
Unlike almost all previous Supreme Court nominees, Harlan appeared before the Senate Judiciary Committee to answer questions relating to his judicial views. Every Supreme Court nominee since Harlan has been questioned by the Judiciary Committee before confirmation.
[25]
The Senate finally confirmed him on March 17, 1955, by a vote of 71?11.
[26]
He took his seat on March 28, 1955.
[5]
Of the eleven senators who voted against his appointment, nine were from the South. He was replaced on the Second Circuit by
J. Edward Lumbard
.
[27]
On the Supreme Court, Harlan often voted alongside Justice
Felix Frankfurter
,
[4]
who was his principal mentor on the court.
[15]
Some legal scholars even viewed him as "Frankfurter without mustard", though others recognize his own important contributions to the evolution of legal thought.
[4]
Harlan was an ideological adversary?but close personal friend?of Justice
Hugo Black
,
[28]
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
.
[3]
Justice Harlan was very close to the
law clerks
whom he hired, and continued to take an interest in them after they left his chambers to continue their legal careers. The justice would advise them on their careers, hold annual reunions, and place pictures of their children on his chambers' walls. He would say to them of the Warren Court, "We must consider this only temporary," that the Court had gone astray, but would soon right itself.
[9]
Justice Harlan is remembered by people who worked with him for his tolerance and civility. He treated his fellow Justices, clerks and attorneys representing parties with respect and consideration. While Justice Harlan often strongly objected to certain conclusions and arguments, he never criticized other justices or anybody else personally, and never said any disparaging words about someone's motivations and capacity.
[29]
Harlan was reluctant to show emotion, and was never heard to complain about anything.
[9]
Harlan was one of the intellectual leaders of the Warren Court. Harvard Constitutional law expert
Paul Freund
said of him:
His thinking threw light in a very introspective way on the entire process of the judicial function. His decisions, beyond just the vote they represented, were sufficiently philosophical to be of enduring interest. He decided the case before him with that respect for its particulars, its special features, that marks alike the honest artist and the just judge.
[30]
Jurisprudence
[
edit
]
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.
[4]
Unlike Justice 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.
[31]
Harlan believed that most problems should be solved by the
political process
, and that the judiciary should play only a limited role.
[3]
In his dissent to
Reynolds v. Sims
,
[32]
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.
[32]
However, Harlan was not a
social conservative
.
[33]
He wrote the plurality opinion in
Manual Enterprises, Inc. v. Day
, ruling that photographs of nude men are not obscene, one of the first major victories for the
early gay rights movement
.
[34]
Despite Harlan's conservatism, he opposed the
Vietnam War
and along with Justices
William O. Douglas
,
Potter Stewart
and
William J. Brennan Jr.
unsuccessfully pushed for the Court to hear challenges to its legality.
[35]
Equal Protection Clause
[
edit
]
The Supreme Court decided several important equal protection cases during the first years of Harlan's career. In these cases, Harlan regularly voted in favor of civil rights?similar to his grandfather, the only dissenting justice in the infamous
Plessy v. Ferguson
case.
[36]
He voted with the majority in
Cooper v. Aaron
,
[37]
compelling defiant officials in
Arkansas
to
desegregate
public schools. He joined the opinion in
Gomillion v. Lightfoot
,
[38]
which declared that states could not redraw political boundaries in order to reduce the voting power of
African-Americans
. Moreover, he joined the unanimous decision in
Loving v. Virginia
,
[39]
which struck down state laws that banned interracial marriage.
Due Process Clause
[
edit
]
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.
[40]
(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'."
[41]
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".
[42]
Harlan set forth his interpretation in an often cited dissenting opinion to
Poe v. Ullman
,
[43]
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
."
[43]
He suggested that the due process clause encompassed a right to privacy, and concluded that a prohibition on contraception violated this right.
[44]
The same law was challenged again in
Griswold v. Connecticut
.
[42]
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."
[42]
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
[45]
and
Lawrence v. Texas
.
[46]
Harlan's interpretation of the Due Process Clause attracted the criticism of Justice Black, who rejected the idea that the Clause included a "substantive" component, considering this interpretation unjustifiably broad and historically unsound, one of the few issues in which Black was more conservative than Harlan. The Supreme Court has agreed with Harlan, and has continued to apply the doctrine of substantive due process in a wide variety of cases.
[3]
Incorporation
[
edit
]
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.
[47]
His opinion on the matter was opposite to that of his grandfather, who supported the full incorporation of the Bill of Rights.
[48]
When it was originally ratified, the Bill of Rights was binding only upon the federal government, as the Supreme Court ruled in the 1833 case
Barron v. Baltimore
.
[49]
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.
[42]
Instead, Justice Harlan believed that the Fourteenth Amendment's due process clause only protected "fundamental" rights. 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.
[4]
Thus, for example, Harlan believed that the
First Amendment
's
free speech
clause applied to the states,
[50]
but that the
Fifth Amendment
's self-incrimination clause did not.
[4]
Harlan's approach was largely similar to that of Justices
Benjamin Cardozo
and
Felix Frankfurter
.
[4]
It drew criticism from Justice Black, a proponent of the total incorporation theory.
[1]
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.
[28]
The Supreme Court has eventually adopted some elements of Harlan's approach, holding that only some Bill of Rights guarantees were applicable against the states?the doctrine known as selective incorporation. 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, the majority of provisions from the Bill of Rights have been extended to the states; the exceptions are the
Third Amendment
, the grand jury clause of the Fifth Amendment, the
Seventh Amendment
, the
Ninth Amendment
, and the
Tenth Amendment
. Thus, although the Supreme Court has agreed with Harlan's general reasoning, the result of its jurisprudence is very different from what Harlan advocated.
[47]
First Amendment
[
edit
]
Justice Harlan supported 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
.
[51]
He joined in
Engel v. Vitale
,
[52]
which declared that it was unconstitutional for states to require the recitation of official
prayers in public schools
. In
Epperson v. Arkansas
,
[53]
he similarly 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, although he thought that the First Amendment applied directly only to the federal government.
[50]
According to Harlan the freedom of speech was among the "fundamental principles of liberty and justice" and therefore applicable also to states, but less stringently than to the national government. Moreover, Justice Harlan believed that federal laws censoring "obscene" publications violated the free speech clause.
[50]
Thus, he dissented from
Roth v. United States
,
[54]
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.
[55]
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.
[54]
Harlan concurred in
New York Times Co. v. Sullivan
,
[56]
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. He did not, however, go as far as Justices Hugo Black and
William O. Douglas
, who suggested that all libel laws were unconstitutional. In
Street v. New York
,
[57]
Harlan wrote the opinion of the court, ruling that the government could not punish an individual for insulting the
American flag
. In 1969 he noted that the Supreme Court had consistently "rejected all manner of prior restraint on publication."
[58]
When Harlan was a Circuit Judge in 1955,
[59]
he authorized the decision upholding the conviction of leaders of the
Communist Party USA
(including
Elizabeth Gurley Flynn
) under the
Smith Act
. The ruling was based on the previous Supreme Court's decisions, by which the Court of Appeals was bound. Later, when he was a Supreme Court justice, Harlan, however, wrote an opinion overturning the conviction of Communist Party activists as unconstitutional in the case of
Yates v. United States
.
[60]
Another such case was
Watkins v. United States
.
[61]
Harlan penned the
majority opinion
in
Cohen v. California
,
[62]
holding that wearing a jacket emblazoned with the words "Fuck the
Draft
" was speech protected by the First Amendment. His opinion was later described by constitutional law expert Professor
Yale Kamisar
as one of the greatest ever written on freedom of expression.
[9]
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
".
[63]
Justice Harlan is credited for establishing that the First Amendment protects the freedom of association.
[50]
In
NAACP v. Alabama
,
[64]
Justice Harlan delivered the opinion of the court, invalidating an Alabama law that required the
NAACP
to disclose membership lists.
[50]
However he did not believe that individuals were entitled to exercise their First Amendment rights wherever they pleased. He joined in
Adderley v. Florida
,
[65]
which controversially upheld a trespassing conviction for protesters who demonstrated on government property. He dissented from
Brown v. Louisiana
,
[66]
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
,
[67]
in which the Supreme Court ruled that students had the right to wear armbands (as a form of protest) in public schools.
Criminal procedure
[
edit
]
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,
[68]
while in many other cases he found himself in dissent. Harlan was usually joined by the other moderate members of the Court: Justices
Potter Stewart
,
Tom Clark
, and
Byron White
.
[4]
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
,
[69]
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
,
[70]
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 H. 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."
[70]
In
Gideon v. Wainwright
,
[68]
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
.
[71]
Harlan wrote the majority opinion in
Leary v. United States
?a case that declared the
Marijuana Tax Act
unconstitutional based on the
Fifth Amendment
protection against
self-incrimination
.
[72]
Justice Harlan's concurrence in
Katz v. United States
[73]
set forth the test for determining whether government conduct constituted a
search
. In this case the Supreme Court held that
eavesdropping
on the
petitioner
's telephone conversation constituted a search in the meaning of the Fourth Amendment and thus required a
warrant
.
[4]
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.'"
[73]
Voting rights
[
edit
]
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.
[74]
In this regard, he shared the views of Justice Felix Frankfurter, who in
Colegrove v. Green
[75]
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
.
[76]
The Court ruled that the courts had
jurisdiction
over
malapportionment
issues and therefore 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.
[76]
Then, in
Wesberry v. Sanders
,
[77]
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."
[77]
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.
[74]
Harlan was the sole dissenter in
Reynolds v. Sims
,
[32]
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.
[32]
For similar reasons, Harlan dissented from
Carrington v. Rash
,
[78]
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."
[78]
Similarly, Justice Harlan disagreed with the Court's ruling in
Harper v. Virginia Board of Elections
,
[79]
invalidating the use of the
poll tax
as a qualification to vote.
Retirement and death
[
edit
]
John M. Harlan's health began to deteriorate towards the end of his career. His eyesight began to fail during the late 1960s.
[80]
To cover this, he would bring materials to within an inch of his eyes, and have clerks and his wife read to him (once when the Court took an obscenity case, a chagrined Harlan had his wife read him
Lady Chatterley's Lover
).
[20]
Gravely ill, he retired from the Supreme Court on September 23, 1971.
[5]
Harlan died from
spinal cancer
[30]
three months later, on December 29, 1971.
[2]
He was buried at the Emmanuel Church Cemetery in Weston, Connecticut.
[81]
[82]
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.
[83]
Thereafter, Nixon nominated William Rehnquist (a future Chief Justice), who was confirmed by the Senate.
[80]
Despite his many dissents, Harlan has been described as one of the most influential Supreme Court justices of the twentieth century.
[84]
He was elected a Fellow of the
American Academy of Arts and Sciences
in 1960.
[85]
Harlan's extensive professional and Supreme Court papers (343 cubic feet) were donated to Princeton University, where they are housed at the
Seeley G. Mudd Manuscript Library
and open to research.
[86]
Other papers repose at several other libraries. Ethel Harlan, his wife, outlived him by only a few months and died on June 12, 1972.
[87]
She suffered from
Alzheimer's disease
for the last seven years of her life.
[15]
See also
[
edit
]
Notes
[
edit
]
- ^
a
b
c
d
e
Yarbrough
, 1992, pp. 10?11
- ^
a
b
c
d
e
"John Marshall Harlan Papers"
.
Princeton University
Library. Archived from
the original
on June 22, 2007
. Retrieved
August 14,
2008
.
- ^
a
b
c
d
Yarbrough
, 1989, Chapter 3, The bill of rights and the states
- ^
a
b
c
d
e
f
g
h
i
j
Vasicko
, 1980
- ^
a
b
c
d
e
f
g
h
i
j
k
l
Dorsen
, 2002, pp. 139?143
- ^
a
b
c
d
Yarbrough
, 1992, pp. 33?35, 41.
- ^
a
b
c
d
e
Leitch 1978
, pp. ?
- ^
a
b
Yarbrough
, 1992, pp. 13?16
- ^
a
b
c
d
e
f
g
h
i
j
k
Oeslner, Lesley (December 30, 1971).
"Harlan dies at 72; on Court 16 years"
.
The New York Times
. Retrieved
April 17,
2009
.
(subscription required)
- ^
Yarbrough
, 1992, pp. 41?51
- ^
288 N.Y. 280, 43 N.E.2d 43 (1942)
- ^
a
b
c
Yarbrough
, 1992, pp. 52?53
- ^
Tucker
, 2002, pp. 6, 51?53
- ^
Lombardo, Paul A. (2002). "
"The American Breed": Nazi Eugenics and the Origins of the Pioneer Fund".
Albany Law Review
.
65
(3): 743?830.
PMID
11998853
.
SSRN
313820
.
- ^
a
b
c
Lamb, Brian (1992).
"Interview with Tinsley Yarbrough, the author of
John Marshall Harlan: Great Dissenter of the Warren Court
"
. National Cable Satellite Corporation. Archived from
the original
on November 15, 2011
. Retrieved
December 30,
2011
.
- ^
"Maud Dillingham, Cesar Becerra Jr"
.
New York Times
. July 13, 1997.
Archived
from the original on March 5, 2016
. Retrieved
April 15,
2009
.
- ^
"Amelia Newcomb, Christian Science Monitor"
,
International Reporting Project
,
archived
from the original on April 2, 2016
- ^
Matt Trevithick
Archived
March 24, 2012, at the
Wayback Machine
.
Boston University Terrier Athletics.
- ^
a
b
"Harlan, John Marshall - Federal Judicial Center"
.
www.fjc.gov
.
Archived
from the original on November 5, 2018
. Retrieved
November 4,
2018
.
- ^
a
b
Rosenbaum, David E. (September 24, 1971).
"A lawyer's judge; John Marshall Harlan"
.
The New York Times
. Retrieved
April 17,
2009
.
(subscription required)
- ^
McMillion, Barry J. (January 28, 2022).
Supreme Court Nominations, 1789 to 2020: Actions by the Senate, the Judiciary Committee, and the President
(PDF)
(Report). Washington, D.C.: Congressional Research Service
. Retrieved
February 19,
2022
.
- ^
"Justices 1789 to Present"
. Washington, D.C.: Supreme Court of the United States
. Retrieved
February 19,
2022
.
- ^
347
U.S.
483
(1954)
- ^
Dorsen
, 2006
- ^
"United States Senate. Nominations"
. United States Senate.
Archived
from the original on April 7, 2019
. Retrieved
October 9,
2008
.
- ^
Epstein
, 2005
- ^
Ravo, Nick (June 9, 1999).
"J. Edward Lumbard Jr., 97, Judge and Prosecutor, Is Dead"
.
The New York Times
. New York.
Archived
from the original on November 8, 2021
. Retrieved
October 9,
2008
.
- ^
a
b
Goldman, Jeremy.
"Harlan, John M."
Oyez.org
.
Archived
from the original on September 16, 2008
. Retrieved
August 14,
2008
.
- ^
Dorsen
, 2002, pp. 147, 156, 162.
- ^
a
b
Staff writer (June 10, 1972).
"The Judges' Judge"
.
Time
. Archived from
the original
on October 22, 2010
. Retrieved
April 15,
2009
.
- ^
Dripps
, 2005, pp. 125?131
- ^
a
b
c
d
377
U.S.
533, 589
(1964), Harlan J., dissenting
- ^
Murdoch, Joyce; Price, Deborah (May 9, 2002).
Courting Justice: Gay Men and Lesbians v. The Supreme Court
. Basic Books. p. 78.
ISBN
9780465015146
. Retrieved
August 15,
2022
.
- ^
"Manual Enterprises, INC. v. Day"
.
Oyez
. Retrieved
August 15,
2022
.
- ^
Schoen, Rodric B. (1993).
"A Strange Silence: Vietnam and the Supreme Court"
.
Washburn Law Journal
.
33
: 275.
- ^
163
U.S.
537, 552
(1896), Harlan J., dissenting
- ^
358
U.S.
1, 4
(1958)
- ^
364
U.S.
339
(1960)
- ^
388
U.S.
1
(1967)
- ^
Wildenthal
, 2000, p. 1463
- ^
431
U.S.
494, 544
(1977), White, B., dissenting
- ^
a
b
c
d
381
U.S.
479, 501
(1965), Harlan, J., concurring in the judgment
- ^
a
b
367
U.S.
497, 522
(1961), Harlan, J., dissenting
- ^
Dripps
, 2005, p. 144
- ^
410
U.S.
113
(1972)
- ^
539
U.S.
558
(2003)
- ^
a
b
Cortner
, 1985
- ^
Wildenthal
, 2000
- ^
32
U.S.
243
(1833)
- ^
a
b
c
d
e
O'Neil
, 2001
- ^
367
U.S.
488
(1961)
- ^
370
U.S.
421
(1962)
- ^
393
U.S.
97, 114
(1968), Harlan, J., concurring
- ^
a
b
354
U.S.
476, 496
(1957), Harlan, J., concurring in the result in No. 61, and dissenting in No. 582
- ^
O'Neil
, 2001, pp. 63?64
- ^
376
U.S.
254
(1964)
- ^
394
U.S.
576
(1969)
- ^
Abrams
, 2005, pp. 15?16
- ^
"Banken und Finanzprodukte im Vergleich - BankVergleich.com"
.
BankVergleich.com
.
Archived
from the original on October 12, 2008
. Retrieved
April 15,
2009
.
- ^
354
U.S.
298, 300
(1957)
- ^
354
U.S.
178
(1957)
- ^
403
U.S.
15
(1971)
- ^
"Conversations: Robert Bork says, Give me liberty, but don't give me filth"
.
Christianity Today
. May 19, 1997.
Archived
from the original on September 7, 2008
. Retrieved
April 12,
2009
.
- ^
357
U.S.
449
(1958)
- ^
385
U.S.
39
(1966)
- ^
383
U.S.
131, 151
(1966), Mr. Justice Black, with whom Mr. Justice Clark, Mr. Justice Harlan, and Mr. Justice Stewart join dissenting
- ^
393
U.S.
503, 526
(1969), Harlan, J., dissenting
- ^
a
b
372
U.S.
335, 349
(1963), Harlan, J., concurring
- ^
378
U.S.
478, 492
(1964), Harlan, J., dissenting
- ^
a
b
384
U.S.
436, 504
(1965), Harlan, J., dissenting
- ^
372
U.S.
353, 360
(1963), Harlan, J., dissenting
- ^
395
U.S.
6
(1969)
- ^
a
b
389
U.S.
347
(1967)
- ^
a
b
Hickok
, 1991, pp. 5?7
- ^
328
U.S.
549, 556
(1946)
- ^
a
b
369
U.S.
186, 266
(1962), Harlan, J., dissenting
- ^
a
b
376
U.S.
1, 20
(1964), Harlan, J., dissenting
- ^
a
b
380
U.S.
89, 97
(1965), Harlan, J., dissenting
- ^
383
U.S.
663, 680
(1966)
- ^
a
b
Dean
, 2001
- ^
"Christensen, George A. (1983)
Here Lies the Supreme Court: Gravesites of the Justices
, Yearbook"
. Archived from
the original
on September 3, 2005
. Retrieved
November 24,
2013
.
Supreme Court Historical Society
at
Internet Archive
.
- ^
Christensen, George A. (February 19, 2008). "Here Lies the Supreme Court: Revisited".
Journal of Supreme Court History
.
33
(1).
University of Alabama
: 17?41.
doi
:
10.1111/j.1540-5818.2008.00177.x
.
S2CID
145227968
.
.
- ^
a MetNews staff writer (October 31, 2002).
"Justice Lillie Remembered for Hard Work, Long Years of Service"
.
Metropolitan News-Enterprise
.
Archived
from the original on September 6, 2008
. Retrieved
August 16,
2008
.
- ^
Yarbrough
, 1992
- ^
"Book of Members, 1780?2010: Chapter H"
(PDF)
.
American Academy of Arts and Sciences
.
Archived
(PDF)
from the original on October 8, 2018
. Retrieved
April 15,
2011
.
- ^
"John Marshall Harlan Papers, 1884-1972 (mostly 1936-1971) - Finding Aids"
.
findingaids.princeton.edu
. Retrieved
October 5,
2022
.
- ^
Staff (June 13, 1972).
"Mrs. John Marshall Harlan, 76, Widow of Supreme Court Justice"
.
New York Times
.
Archived
from the original on January 14, 2012
. Retrieved
April 15,
2009
.
References
[
edit
]
- Abrams, Floyd (2005).
"The Pentagon papers case"
.
Speaking Freely
. New York:
Viking Press
.
ISBN
978-0-670-03375-1
.
- Cortner, Richard (1985).
"The Nationalization of the Bill of Rights: An Overview"
(PDF)
.
American Political Science Association
and
American Historical Association
.
Archived
(PDF)
from the original on September 29, 2020
. Retrieved
July 19,
2020
.
- Dean, John (2001).
"2"
.
The Rehnquist Choice
. Free Press.
ISBN
978-0-7432-2607-3
.
- Dorsen, Norman; Newcomb, Amela Ames (2002).
"John Marshall Harlan II: Remembrances by his Law Clerks"
.
Journal of Supreme Court History
.
27
(2): 138?175.
doi
:
10.1111/1540-5818.00040
.
S2CID
144526140
. Archived from
the original
on January 5, 2013.
- Dorsen, Norman (2006).
"The selection of U.S. Supreme Court justices"
.
International Journal of Constitutional Law
.
4
(4): 652?663.
doi
:
10.1093/icon/mol028
.
- Dripps, Donald A. (2005).
"Justice Harlan on Criminal Procedure: Two Cheers for the Legal Process School"
(PDF)
.
Ohio State Journal of Criminal Law
.
3
: 125?168. Archived from
the original
(PDF)
on June 21, 2010
. Retrieved
April 13,
2009
.
- Epstein, Lee; Segal, Jeffrey A.; Staudt, Nancy; Lindstadt, Rene (2005).
"The role of qualifications in the confirmation of nominees to the U.S. Supreme court"
(PDF)
.
Florida State University Law Review
.
32
: 1145?1174. Archived from
the original
(PDF)
on October 29, 2008.
- Goldman, Jeremy.
"Harlan, John M."
Oyez.org
.
Archived
from the original on September 16, 2008
. Retrieved
August 14,
2008
.
- Hickok, Eugene W. Jr. (1991).
"Representation By Quota: The Decline of Representative Government in America"
.
The Heritage Lectures
. Washington, D.C.:
The Heritage Foundation
.
ISSN
0272-1155
.
- Leitch, Alexander (1978).
A Princeton Companion
. Princeton:
Princeton University Press
.
ISBN
0-691-04654-9
.
Archived
from the original on April 27, 2019
. Retrieved
April 13,
2009
.
- Mayer, Martin (1968).
Emory Buckner
. New York: Harper & Row.
(Harlan arranged for Mayer to write this book about his mentor
Emory Buckner
and wrote the book's Introduction.)
- Oeslner, Lesley (December 30, 1971).
"Harlan dies at 72; on Court 16 years"
.
The New York Times
. Retrieved
April 17,
2009
.
(subscription required)
- O'Neil, Robert M. (2001).
"The neglected first amendment jurisprudence of the second justice Harlan"
(PDF)
.
NYU Annual Survey of American Law
.
58
: 57?66. Archived from
the original
(PDF)
on October 29, 2008.
- Tucker, William H. (2002).
The Funding of Scientific Racism: Wickliffe Draper and the Pioneer Fund
.
University of Illinois Press
.
ISBN
978-0-252-02762-8
.
- Vasicko, Sally Jo (1980).
"John Marshall Harlan: neglected advocate of federalism"
(PDF)
.
Modern Age
.
24
(4): 387?395.
Archived
(PDF)
from the original on October 29, 2008
. Retrieved
October 6,
2008
.
- Wildenthal, Bryan H. (2000).
"The Road to Twining: Reassessing the Disincorporation of the Bill of Rights"
(PDF)
.
Ohio State Law Journal
.
61
: 1457?1496.
Archived
(PDF)
from the original on October 29, 2008
. Retrieved
October 8,
2008
.
- Yarbrough, Tinsley E. (1989).
Mr. Justice Black and his critics
.
Duke University Press
.
ISBN
978-0-8223-0866-9
.
- Yarbrough, Tinsley E. (1992).
John Marshall Harlan: Great Dissenter of the Warren Court
. Oxford, Oxfordshire: Oxford University Press.
ISBN
978-0-19-506090-4
.
Further reading
[
edit
]
- Abraham, Henry J. (1992).
Justices and Presidents: A Political History of Appointments to the Supreme Court
(3rd ed.). Oxford, Oxfordshire:
Oxford University Press
.
ISBN
0-19-506557-3
.
- Cushman, Clare (2001).
The Supreme Court Justices: Illustrated Biographies, 1789?1995
(2nd ed.). (
Supreme Court Historical Society
, Congressional Quarterly Books).
ISBN
1-56802-126-7
.
- Frank, John P. (1995). Friedman, Leon; Israel, Fred L. (eds.).
The Justices of the United States Supreme Court: Their Lives and Major Opinions
.
Chelsea House
Publishers.
ISBN
0-7910-1377-4
.
- Hall, Kermit L., ed. (1992).
The Oxford Companion to the Supreme Court of the United States
. Oxford, Oxfordshire: Oxford University Press.
ISBN
0-19-505835-6
.
- Martin, Fenton S.; Goehlert, Robert U. (1990).
The U.S. Supreme Court: A Bibliography
. Washington, D.C.:
Congressional Quarterly
Books.
ISBN
0-87187-554-3
.
- Shapiro, David L. (1969).
The Evolution of a Judicial Philosophy: Selected Opinions and Papers of Justice John M. Harlan
. Cambridge, MA:
Harvard University Press
.
- Urofsky, Melvin I. (1994).
The Supreme Court Justices: A Biographical Dictionary
. New York:
Garland Publishing
. p.
590
.
ISBN
0-8153-1176-1
.
- Woodward, Robert
;
Armstrong, Scott
(1979).
The Brethren: Inside the Supreme Court
. New York:
Avon Books
.
ISBN
978-0-380-52183-8
.
External links
[
edit
]
- John Marshall Harlan II
at the
Biographical Directory of Federal Judges
, a publication of the
Federal Judicial Center
.
- Ariens, Michael.
"John Marshall Harlan II"
. www.michaelariens.com. Archived from
the original
on May 16, 2008
. Retrieved
August 14,
2008
.
- John M. Harlan Papers at the Seeley G. Mudd Manuscript Library, Princeton University
- Harlan, Louis R.
"Harlan Family In America: A Brief History"
. Harlan Family in America. Archived from
the original
on February 10, 2009
. Retrieved
October 9,
2008
.
- Fox, John,
Capitalism and Conflict, Biographies of the Robes, John Marshall Harlan II.
Public Broadcasting Service
.
- Supreme Court Historical Society
,
"John Marshall Harlan II."
Archived
April 15, 2013, at the
Wayback Machine
.
- Booknotes
interview with Tinsley Yarbrough on
John Marshall Harlan: Great Dissenter of the Warren Court
, April 26, 1992.
- John Marshall Harlan II
at
Find a Grave
|
---|
|
---|
- John Jay
(
1789?1795
,
cases
)
- John Rutledge
(
1795
,
cases
)
- Oliver Ellsworth
(
1796?1800
,
cases
)
- John Marshall
(
1801?1835
,
cases
)
- Roger B. Taney
(
1836?1864
,
cases
)
- Salmon P. Chase
(
1864?1873
,
cases
)
- Morrison Waite
(
1874?1888
,
cases
)
- Melville Fuller
(
1888?1910
,
cases
)
- Edward Douglass White
(
1910?1921
,
cases
)
- William Howard Taft
(
1921?1930
,
cases
)
- Charles Evans Hughes
(
1930?1941
,
cases
)
- Harlan F. Stone
(
1941?1946
,
cases
)
- Fred M. Vinson
(
1946?1953
,
cases
)
- Earl Warren
(
1953?1969
,
cases
)
- Warren E. Burger
(
1969?1986
,
cases
)
- William Rehnquist
(
1986?2005
,
cases
)
- John Roberts
(
2005?present
,
cases
)
| |
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*
Also served as Chief Justice of the United States
| |
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International
| |
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National
| |
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People
| |
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Other
| |
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