John Marshall Harlan II

John Marshall Harlan II (May 20, 1899- December 29, 1971) was an Associate Justice of the United States Supreme Court. He was known as the "great dissenter" of the Warren Court.

He was born in Chicago, Illinois. His grandfather was the Supreme Court Justice John Marshall Harlan. His father was a lawyer and city alderman in Chicago. He came from a long line of politically active men. A forefather, George Harlan, was the governor of Delaware before the Revolutionary War.

He attended the Lake Placid School in New York, before graduating from Upper Canada College in Toronto, Ontario. He enrolled at Princeton University. There he was the class president for three years and an editor of The Daily Princetonian. He graduated from Princeton University in 1920, and was awarded a Rhodes Scholarship, which he used to attend Balliol College, Oxford. Following that he obtained a law degree from New York Law School.

In 1923, he joined the New York Wall Street law firm of Root, Clark, Buckner & Howland, (now known as Dewey Ballantine) where he met and worked for Emory R. Buckner. Buckner served as the United States Attorney for the Southern District of New York from 1925 to 1927.

Harlan joined him as an assistant, serving as the chief of the Prohibition unit. In 1926, he prosecuted the theatrical producer Earl Carroll for perjury. Carroll had given a party at which a naked woman sat in a bathtub full of champagne. Guests filled their glasses from the tub. He told a grand jury that there was no alcohol present. From 1928 to 1930, he served as a special assistant state attorney general investigating a scandal involving sewer construction in Queens. He prosecuted Maurice Connolly, the Queens borough president.

During World War II, he served with the Army Air Corps in England. He was the chief of the Operational Analysis Section of the Eighth Air Force. He won the Legion of Merit and the Croix de Guerre of France and Belgium. Afterwards he returned to his law practice.

In private practice, he handled a variety of cases. He defended Gene Tunney in a breach of contract suit. He represented the City College of New York in its unsuccessful effort to retain Bertrand Russell on its faculty. He represented the du Pont family family in a federal charge that they had improperly invested in General Motors.

In January 1954, Harlan was appointed to the United States Court of Appeals for the Second Circuit by President Eisenhower. He knew this court well, since he had often appeared before it. His stay was, however, brief. Later that same year, Supreme Court Justice Robert H. Jackson died and President Eisenhower nominated Harlan to replace him.

His confirmation was rough, despite his solid credentials and lack of political ties. Although many charges were levied, the most important reason was that several Southern Senators wanted to delay the implementation of the Court's 1954 school desegregation ruling (Brown vs Board of Education) as long as possible. He was finally confirmed on March 16, 1955 by a vote of 71 to 11. Nine of the eleven senators that voted against his appointment were from the South.

His decisions could be classified as neither conservative nor liberal. For instance, he voted to give the President power to censor newspapers in the Pentagon Papers case, New York Times v. United States (1971), but in the 1971 case Cohen v. California he wrote the majority opinion ruling that a jacket with an obscene reference to conscription was protected free speech.

His jurisprudence was ruled by several principles. He held precedent to be of great importance; he adhered to the common-law principle of stare decisis much more closely than his colleagues on the Court. He would only rule against precedent with a clear demonstration of past error. In contrast to a contemporary such as Hugo Black or such current Justices as Antonin Scalia and Clarence Thomas, he eschewed originalism and textualism; in keeping with this "common-law" style of constitutional interpretation, he favored standards over rules, since the former were better able to adjust to changing conditions. Thus he was dead-set against the "total incorporation" of the Bill of Rights into the Fourteenth Amendment—that is, the position that the Fourteenth Amendment implicitly made all of the provisions of the first ten Amendments enforceable against the states. Instead, he favored the position advanced by Benjamin Cardozo and Felix Frankfurter, that the Fourteenth Amendment incorporated only those provisions of the Bill of Rights that are "fundamental," that is, either deeply rooted in the history of the United States, or simply inherently necessary to the proper functioning of a liberal polity.

Finally, Harlan abhorred what smacked to him of judicial activism. He wrote of this in his dissent in the 1964 case Reynolds v. Sims:

These decisions give support to a current mistaken view of the Constitution and the constitutional function of this court. This view, in a nutshell, 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.

This court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to justified impatience with the slow workings of the judicial 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 own view of what should be the amending process.

Harlan's style of adjudication has influenced many current legal thinkers, including justices David Souter and Sandra Day O'Connor, in their desire to adhere closely to precedent, as well as their sometime tendency to support claims of individual rights.

He married Ethel Andrews in 1928. They had one daughter, Mrs. Eva Dillingham, who lived in Weston, Connecticut at the time of his death.

Sources

• Harlan Dies at 72; on Court for 16 years. New York Times, December 30, 1971.

Preceded by: Robert H. Jackson

Associate Justice of the Supreme Court of the United States March 28, 1955 – September 23, 1971

Succeeded by: William Rehnquist Template:End box