John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.
The second John Marshall Harlan was born in Chicago, Illinois, on May 20, 1899, the son of John Maynard Harlan and Elizabeth Palmer Harlan. His father was a distinguished Chicago attorney, active as a Republican in the city’s politics, who served as an alderman and made two unsuccessful bids to become city mayor. The grandfather whose name he bore served as an associate justice on the Supreme Court from 1877 to 1911 and was famous for having dissented from the Court’s approval of segregation in Plessy v. Ferguson (1896) and for insisting that the Constitution required the law to be “color-blind.”
Young Harlan received his early education at a boarding school in Oakville, Ontario, and then at the Lake Placid School in New York. He subsequently matriculated at Princeton University in 1916 and graduated in 1920 after compiling an outstanding university career and winning a Rhodes scholarship that allowed him to study law at Balliol College in Oxford, England, for the next three years.
After Harlan’s return to the United States in 1923, he found a position with the Wall Street firm of Root, Clark, Buckner & Howland. One of the firm’s partners, Emory R. Buckner, advised Harlan to obtain a law degree from an American law school. Harlan complied by earning an LL.B. from New York Law School over the course of a year while he continued to work for the firm. Thereafter, Buckner was appointed U.S. attorney for the Southern District of New York, and Harlan left the firm to become Buckner’s assistant, assuming responsibility for the prosecution of Prohibition violations. By 1927 both Buckner and Harlan had returned to the Root, Clark, Buckner & Howland firm, but late in the year the two men undertook another political charge— this time to investigate graft involving municipal sewer construction.
Harlan worked as a special assistant attorney general with Buckner for the next two years. During this period he married Ethel Andrews, and this marriage eventually produced a daughter, Eve. In 1930 Harlan returned to his former law firm and was made a partner the following year. Over the next decade he grew to be one of the city’s premier trial lawyers.
When the surprise attack on Pearl Harbor intruded on the nation’s peace in December 1941 and the United States entered World War II, Harlan sought a military position. He obtained a post in England as chief of the Operational Analysis section of the Eighth Air Force. There, with a team of other civilians, Harlan advised the air force concerning bombing missions, helping to improve die accuracy of bombing raids. For this and other service, Harlan was awarded the United States Legion of Merit and the Croix de Guerre of Belgium and France.
The 46-year-old Harlan returned home in 1945 and resumed a litigation practice that became nationally prominent. To his work for important clients such as Du Pont Corporation, Harlan added a substantial range of professional activities. He served as director of the Legal Aid Society and was deeply involved in the activities of the New York City Bar Association. A new opportunity for public service presented itself to Harlan in 1951, when he was appointed chief counsel for the New York State Crime Commission, which was immersed in an investigation concerning the inroads of organized crime on state government. This post, which Harlan held from 1951 through 1953, brought Harlan into contact with Herbert Brownell, an associate of New York Governor Thomas E. Dewey. Soon thereafter, Brownell became the attorney general for President Dwight D. Eisenhower, and he offered Harlan a seat on the prestigious U.S. Court of Appeals for the Second Circuit.
Harlan accepted the appointment and took his seat in March 1954, but his career on this appellate court proved to be extraordinarily brief. In October that year, Associate Justice Robert Jackson died of a heart attack, and President Eisenhower promptly nominated Harlan to assume the vacant scat on the Court. Harlan’s nomination, though, collided with the anger of southern senators over the Court’s decision the previous spring in Brown v. Board of Education (1954), which declared public school segregation unconstitutional. They were able to hold Harlan’s nomination hostage for a short period while dtey railed against the Court. But President Eisenhower resubmitted Harlan’s nomination on January 10, 1955, and two months later the Senate finally confirmed Harlan by a vote of 71-11. He took his seat on the Court on March 28, 1955.
Harlan’s vision began to fail during the 1960s. He continued to labor at the work of the Court, however, until persistent back pain caused by cancer of the spine eventually disabled him toward the beginning of the following decade. Harlan retired from the Court on September 23, 1971.
John Marshall Harlan joined the Court during a historic period. The decision in Brown, handed down the previous year, inaugurated a period of revolutionary change in constitutional law, as a majority of the Court began to make the protection of civil rights and civil liberties a matter of increasing priority. Especially in the 1960s, this new resolve would undergird sweeping transformations in a wide range of areas. Harlan, though, proved to be an adversary ot many of these developments. Together with Associate Justice Felix Frankfurter, he came to champion the value of judicial restraint and thus placed himself at odds with the increasing activism of the Warren court. Throughout the years of Warren’s tenure as chief justice, Harlan was the most eloquent and precisely reasoned advocate of judicial conservativism. He believed that individual liberty was best protected by ensuring appropriate legal procedures and vigilantly policing the separate boundaries between political powers, rather than by rushing to defend particular liberties directly' with the strong arm of the Constitution. He denied that every problem had a constitutional fix. Thus, in dissenting from die Court’s use of the equal pro-tection clause to guarantee die “one person, one vote” principle in cases such as Reynolds v. Sims (1964), Harlan challenged his colleagues’ belief 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.” He believed firmly in a federalism dtat respected the role of states in die nation’s life and often dissented from Court decisions that imposed a single constitutional standard on both federal and state governments.
Thus, he dissented from the Court’s landmark case oi Miranda v. Arizona (1966), which re quired state law enforcement personnel to inform criminal suspects of their right to remain silent and to have counsel appointed or else be precluded from using any confessions obtained from the suspects.
Nevertheless, in spite of Harlan’s insistence on judicial restraint, he both wrote and joined in opinions that defied a traditional conservative” label. For example, he announced the opinion for the Court in NAACP v. Alabama (1958), which upheld the right of individuals to join civil rights organizations without having their identities disclosed, and thus acknowledged a right of association within the broader rights protected by die First Amendment’s free speech clause. Toward the end of his judicial career, Harlan wrote the opinion for the Court in Cohen v. California (1971), which found that the First Amendment protected the right of a critic of the Vietnam War to wear in a public place a jacket with an offensive slogan on the back that criticized the draft. Similarly, Harlan firmly supported the Court’s recognition of a right to privacy' in Griswold v. Connecticut (1963), on the basis of w'hich the Court declared unconstitutional a state law' prohibiting the use of contraceptives. He had, in fact, been prepared to acknowledge this right tw'O years earlier in Poe v. Ulman (1961), when a majority of the Court initially declined to hear a challenge against the Connecticut law' prohibiting the use of contraceptive devices.
In 1928, Harlan married Ethel Andrews, who was the daughter of Yale history professor Charles McLean Andrews.This was the second marriage for her. Ethel was originally married to a New York architect Henry K. Murphy, who was twenty years her elder. After Ethel divorced Murphy in 1927, her brother John invited her to a Christmas party at Root, Clark, Buckner & Howland, where she was introduced to John Harlan. They saw each other regularly afterwards and married on November 10, 1928 in Farmington, Connecticut.