John M. Harlan, II

Nominated by: Dwight D. Eisenhower

Significance: As an associate on the Supreme Court, Harlan was regarded as the Court’s conservative conscience. He believed that the content of constitutional provisions changed and moved with the times and was the author of the constitutional right to privacy.

Harlan’s family was noted for public service. A Quaker forebear, George Harlan, came to America in 1687 and later became governor of Delaware. His grandfather, John Marshall Harlan, for whom he was named, was a Supreme Court justice from 1877 to 1911. His father, John Maynard Harlan, practiced law and served as a city alderman in Chicago. The young Harlan graduated with honors in 1920 from Princeton and spent three years as a Rhodes Scholar at Oxford, taking an A.B. with a first in jurisprudence in 1923.

Legal Career

After returning from England, Harlan joined the prestigious New York City law firm of Root, Clark, Buckner, and Howland and began studying at the New York Law School. Harlan earned his L.L.B. in 1924, was admitted to the New York bar in 1925, and became a partner in his firm in 1931. Eighteen months after joining the firm, one of Harlan’s superiors and his mentor, Emory R. Buckner, was named U.S. Attorney in Manhattan. Buckner served two years in that position and took Harlan with him for the duration. Harlan became the head of the Prohibition Division, enforcing the Volstead Act, the federal law implementing Prohibition.

After becoming a partner in his law firm, Harlan meticulously represented some of the top corporations in the United States. During World War II (1941-1945), he served as a colonel in the U.S. Army Air Force, in charge of the operations analysis section of the Eighth Bomber command in England. In 1951 Governor Thomas E. Dewey appointed Harlan chief counsel to a state commission investigating links between organized crime and state government in New York.

In January, 1954, President Dwight D. Eisenhower nominated Harlan to the Second U.S. Circuit Court of Appeals. Harlan was confirmed on February 9, 1954, but in October, 1954, Justice Robert H. Jackson died, and Eisenhower sent Harlan’s name to the Senate. On March 28, 1955, the Senate voted 71 to 11 to confirm Harlan’s nomination. He remained on the Court until September 23, 1971, when he resigned because of failing health.

Constitutional Philosophy

Harlan served on the Court during a time when a majority of the Court was determined to use the power of the federal courts to help remedy societal ills. Because Harlan generally opposed this mission, he is sometimes thought to have held a restrictive view of federal court remedial power. Harlan dissented from many of the sweeping decisions of Earl Warren’s court, such as the one person, one vote ruling in Reynolds v. Sims (1964). “The Constitution is not a panacea for every blot upon the public welfare,” Harlan wrote, “nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements.” Although he was cautious in exercising judicial power, he nevertheless held a very expansive and generous view of federal court authority to grant traditional damage and equitable remedies. Harlan favored traditional implication standards, which involved implying or inferring an appropriate remedy from a statute whenever the statute did not expressly state a remedy. He believed that a jurisdiction to give effect to the policy of the legislature is inherent in the courts of equity.

Harlan’s conservatism had two key aspects: his respect for the legislature and his refusal to view the Court as a legitimate engine of political reform. These qualities are revealed in his dissenting opinions in such cases as Miranda v. Arizona (1966), Baker v. Carr (1962), and Mapp v. Ohio (1961). In these dissents, he defined his conservatism by such characteristics as an arduous dedication to analyzing the record of the case, a refusal to twist the historical truth to reach a desired result, a respect for adjacent institutions, and a vision of a judicial opinion as a ruling tailored to address the specific legal issues presented to the Court in a given case.

Privacy and Other Rights

Although Harlan was perceived as a conservative, he wrote an opinion establishing freedom of private association as a fully guaranteed right in National Association for the Advancement of Colored People v. Alabama (1958) and ruled for the Court that indigent women have the right to sue for divorce at state expense in Boddie v. Connecticut (1971). He also concluded that the First Amendment’s free speech provision is broad enough to protect a man wearing a jacket embroidered with a common obscenity denouncing the draft in public in Cohen v. California (1971). In addition, Harlan is regarded as the author of the constitutional right to privacy with his dissenting opinion in Poe v. Ullman (1961). Justice William O. Douglas cited this dissent as the source of his “penumbra” of privacy in his opinion for the Court in Griswold v. Connecticut (1965), which firmly put the right of privacy into constitutional law.

Bibliography

Bader, William H., and Roy M. Mersky, eds. The First One Hundred Eight Justices. Buffalo, N.Y.: William S. Hein, 2004.

Friedman, Leon, and Fred L. Israel, eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997.

Hensley, Thomas R. The Rehnquist Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2006.

Urofsky, Melvin I. The Warren Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2001.

Yarbrough, Tinsley E. The Burger Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2000.

Yarbrough, Tinsley E. John Marshall Harlan: Great Dissenter of the Warren Court. New York: Oxford University Publishers, 1992.

Yarbrough, Tinsley E. The Rehnquist Court and the Constitution. New York: Oxford University Press, 2000.