John Marshall Harlan II

John Marshall Harlan(May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as anassociate justice of the U.S. Supreme Courtfrom 1955 to 1971. Harlan is usually calledJohn Marshall Harlan IIto distinguish him from his grandfather,John Marshall Harlan,who served on the U.S. Supreme Court from 1877 to 1911.

John Marshall Harlan II
Associate Justice of the Supreme Court of the United States
In office March 28, 1955 – September 23, 1971
Nominated by	Dwight D. Eisenhower
Preceded by	Robert H. Jackson
Succeeded by	William Rehnquist
Judge of theUnited States Court of Appeals for the Second Circuit
In office February 10, 1954 – March 27, 1955
Nominated by	Dwight D. Eisenhower
Preceded by	Augustus Noble Hand
Succeeded by	J. Edward Lumbard
Personal details
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	John Maynard Harlan(father)
Relatives	John Marshall Harlan(grandfather)
Education	Princeton University(AB) Balliol College, Oxford New York Law School(LLB)
Military service
Allegiance	United States
Branch/service	United States Army United States Army Air Forces
Years of service	1943–1945
Rank	Colonel

Harlan was a student atUpper Canada CollegeandAppleby Collegeand then atPrinceton University.Awarded aRhodes Scholarship,he studied law atBalliol College, Oxford.Upon his return to the U.S. in 1923 Harlan worked in the law firm ofRoot, Clark, Buckner & Howlandwhile studying atNew York Law School.Later he served as AssistantU.S. Attorney for the Southern District of New Yorkand as Special Assistant Attorney General of New York. In 1954 Harlan was appointed to theUnited States Court of Appeals for the Second Circuit,and a year later presidentDwight Eisenhowernominated Harlan to the United States Supreme Court following the death of JusticeRobert H. Jackson.

Harlan is often characterized as a member of the conservative wing of theWarren 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 toprecedent,and was more reluctant to overturn legislation than many of his colleagues on the Court. He strongly disagreed with the doctrine ofincorporation,which held that the provisions of thefederal Bill of Rightsapplied to the state governments, not merely the Federal.At the same time, he advocated a broadinterpretationof theFourteenth Amendment'sDue Process Clause,arguing that it protected a wide range of rightsnot expressly mentionedin theUnited States Constitution.Justice Harlan was gravely ill when he retired from the Supreme Court on September 23, 1971.He died fromspinal cancerthree months later on December 29, 1971. After Harlan's retirement,President NixonappointedWilliam Rehnquistto replace him.

Early life and career

John Marshall Harlan was born on May 20, 1899, inChicago.He was the son ofJohn Maynard Harlan,a Chicago lawyer and politician, and Elizabeth Flagg. He had three sisters.Historically, Harlan's family had been politically active. His forebear George Harlan served as one of the governors ofDelawareduring the seventeenth century; his great-grandfatherJames Harlanwas a congressman during the 1830s;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 ofPuerto Ricoand then chairman of theInterstate Commerce Commission.

In his younger years, Harlan attendedThe Latin School of Chicago.He later attended two boarding high schools in theToronto Area,Canada:Upper Canada CollegeandAppleby College.Upon graduation from Appleby, Harlan returned to the U.S. and in 1916 enrolled at Princeton University. There, he was a member of theIvy Club,served as an editor ofThe Daily Princetonian,and was class president during his junior and senior years.After graduating from the university in 1920 with anArtium Baccalaureusdegree, he received aRhodes Scholarshipto attend Balliol College, Oxford, making him the first Rhodes Scholar to sit on the Supreme Court.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 (which becameDewey & LeBoeuf), one of the leading law firms in the country, while studying law at New York Law School. He received hisBachelor of Lawsin 1924 and earned admission to the bar in 1925.

Between 1925 and 1927, Harlan served asAssistant United States Attorneyfor theSouthern District of New York,heading the district'sProhibitionunit.He prosecutedHarry M. Daugherty,former United States Attorney General.In 1928, he was appointed Special AssistantAttorney General of New York,in which capacity he investigated a scandal involving sewer construction inQueens.He prosecutedMaurice E. Connolly,the Queensborough president,for his involvement in the affair.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 partnerEmory Bucknerand followed him into public service when Buckner was appointedUnited States Attorneyfor 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 inQuebec,where Prohibition did not apply.Harlan remained in public service until 1930, and then returned to his firm. Buckner had also returned to the firm,and after Buckner's death, Harlan became the leadingtrial lawyerat the firm.

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 ofElla 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.In the following years Harlan specialized in corporate law dealing with the cases likeRandall v. Bailey,concerning the interpretation of state law governing distribution of corporatedividends.In 1940, he represented the New York Board of Higher Education unsuccessfully inthe Bertrand Russell casein its efforts to retainBertrand Russellon the faculty of theCity College of New York;Russell was declared "morally unfit" to teach.The future justice also represented boxerGene Tunneyin a breach of contract suit brought by a would-be fight manager, a matter settled out of court.

In 1937, Harlan was one of five founders of aeugenicsadvocacy group called thePioneer 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.

During World War II, Harlan volunteered for military duty, serving as acolonelin theUnited States Army Air Forcesfrom 1943 to 1945. He was the chief of theOperational AnalysisSection of the Eighth Air Force in England.He won theLegion of Meritfrom the United States, and the Croix de Guerre from bothFranceandBelgium.In 1946 Harlan returned to private law practice representingDu Pont familymembers 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.During this period Harlan also served as a committee chairman of theAssociation 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 wascorporateandantitrust law.

Personal life

In 1928, Harlan married Ethel Andrews, who was the daughter of Yale history professorCharles McLean Andrews.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 atRoot, Clark, Buckner & Howland,where she was introduced to John Harlan. They saw each other regularly afterwards and married on November 10, 1928, inFarmington, Connecticut.

Harlan, aPresbyterian,maintained a New York City apartment, a summer home inWeston, Connecticut,and a fishing camp inMurray Bay, Quebec,a lifestyle he described as "awfully tame and correct".The justice played golf, favored tweeds, and wore a gold watch which had belonged to the first Justice Harlan.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.

John and Ethel Harlan had one daughter, Evangeline (born on February 2, 1932).She was married to Frank Dillingham ofWest Redding, Connecticut,until his death, and had five children.One of Eve's children, Amelia Newcomb, is the international news editor atThe Christian Science Monitorand has two children: Harlan, named after John Marshall Harlan II, and Matthew Trevithick.Another daughter,Kate Dillingham,is a professional cellist and published author.

Second Circuit service

Harlan was nominated by PresidentDwight D. Eisenhoweron January 13, 1954, to a seat on theUnited States Court of Appeals for the Second Circuitvacated by JudgeAugustus Noble Hand.Harlan knew this court well, as he had often appeared before it and was friendly with many of the judges.He was confirmed by theUnited States Senateon 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.

Supreme Court service

Harlan was nominated by President Eisenhower on January 10, 1955, as anassociate justice of the Supreme Court of the United States,to succeed Robert H. Jackson.On being nominated, the reticent Harlan called reporters into his chambers in New York, and stated, in full, "I am very deeply honored."He was confirmed by the Senate on March 16, 1955, by a 71–11 vote,and wassworn into officeon March 28, 1955.Despite the brevity of his stay on the Second Circuit, Harlan would serve as theCircuit Justiceresponsible 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.Additionally, he served as Circuit Justice for the Ninth Circuit from June 25 to June 26, 1963. He assumedretired statuson September 23, 1971, serving in that capacity until his death on December 29, 1971.

Portrait of Harlan

Harlan's nomination came shortly after the Supreme Court handed down its landmark decision inBrown v. Board of Education,declaring segregation in public schools unconstitutional.James Eastland(the chairman of theUnited 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 andcivil rights.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.The Senate finally confirmed him on March 17, 1955, by a vote of 71–11.He took his seat on March 28, 1955.Of the eleven senators who voted against his appointment, nine were from the South. He was replaced on the Second Circuit byJ. Edward Lumbard.

On the Supreme Court, Harlan often voted alongside JusticeFelix Frankfurter,who was his principal mentor on the court.Some legal scholars even viewed him as "Frankfurter without mustard", though others recognize his own important contributions to the evolution of legal thought.Harlan was an ideological adversary—but close personal friend—of JusticeHugo 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 theEqual Protection Clause.

Justice Harlan was very close to thelaw clerkswhom 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.

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.Harlan was reluctant to show emotion, and was never heard to complain about anything.Harlan was one of the intellectual leaders of the Warren Court. Harvard Constitutional law expertPaul Freundsaid 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.

Jurisprudence

Harlan's jurisprudence is often characterized as conservative. He heldprecedentto be of great importance, adhering to the principle ofstare decisismore closely than many of his Supreme Court colleagues.Unlike Justice Black, he eschewed stricttextualism.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 thepolitical process,and that the judiciary should play only a limited role.In his dissent toReynolds v. Sims,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.

However, Harlan was not asocial conservative.He wrote the plurality opinion inManual Enterprises, Inc. v. Day,ruling that photographs of nude men are not obscene, one of the first major victories for theearly gay rights movement. Despite Harlan's conservatism, he opposed theVietnam Warand along with JusticesWilliam O. Douglas,Potter StewartandWilliam J. Brennan Jr.unsuccessfully pushed for the Court to hear challenges to its legality.

Equal Protection Clause

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 infamousPlessy v. Fergusoncase.

He voted with the majority inCooper v. Aaron,compelling defiant officials inArkansastodesegregatepublic schools. He joined the opinion inGomillion v. Lightfoot,which declared that states could not redraw political boundaries in order to reduce the voting power ofAfrican-Americans.Moreover, he joined the unanimous decision inLoving v. Virginia,which struck down state laws that banned interracial marriage.

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.(Seesubstantive due process.) However, as JusticeByron Whitenoted in hisdissenting opinioninMoore 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 offederalismandseparation of powershave played in establishing and preserving American freedoms ".

Harlan set forth his interpretation in an often cited dissenting opinion toPoe v. Ullman,which involved a challenge to aConnecticutlaw banning the use ofcontraceptives.The Supreme Court dismissed the case on technical grounds, holding that the case was notripefor 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; theright to keep and bear arms;the freedom from unreasonablesearches and seizures;and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitraryimpositionsand purposelessrestraints."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 inGriswold v. Connecticut.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. "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 asRoe v. WadeandLawrence v. Texas.

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.

Incorporation

See also:Incorporation (Bill of Rights)

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.His opinion on the matter was opposite to that of his grandfather, who supported the full incorporation of the Bill of Rights.When it was originally ratified, the Bill of Rights was binding only upon the federal government, as the Supreme Court ruled in the 1833 caseBarron v. Baltimore.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 hisGriswoldconcurrence.

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.Thus, for example, Harlan believed that theFirst Amendment'sfree speechclause applied to the states,but that theFifth Amendment's self-incrimination clause did not.

Harlan's approach was largely similar to that of JusticesBenjamin CardozoandFelix 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 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 theThird Amendment,the grand jury clause of the Fifth Amendment, theSeventh Amendment,theNinth Amendment,and theTenth 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.

First Amendment

Justice Harlan supported many of the Warren Court's landmark decisions relating to theseparation 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 inTorcaso v. Watkins.He joined inEngel v. Vitale,which declared that it was unconstitutional for states to require the recitation of officialprayers in public schools.InEpperson v. Arkansas,he similarly voted to strike down an Arkansas law banning the teaching ofevolution.

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.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.Thus, he dissented fromRoth v. United States,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 hisRothdissent:

The danger is perhaps not great if the people of one State, through their legislature, decide thatLady Chatterley's Lovergoes 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 ofD. H. Lawrenceseems 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.

Harlan concurred inNew York Times Co. v. Sullivan,which required public officials suing newspapers forlibelto 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 andWilliam O. Douglas,who suggested that all libel laws were unconstitutional. InStreet v. New York,Harlan wrote the opinion of the court, ruling that the government could not punish an individual for insulting theAmerican flag.In 1969 he noted that the Supreme Court had consistently "rejected all manner of prior restraint on publication."

When Harlan was a Circuit Judge in 1955,he authorized the decision upholding the conviction of leaders of theCommunist Party USA(includingElizabeth Gurley Flynn) under theSmith 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 ofYates v. United States.Another such case wasWatkins v. United States.

Harlan penned themajority opinioninCohen v. California,holding that wearing a jacket emblazoned with the words "Fuck theDraft"was speech protected by the First Amendment. His opinion was later described by constitutional law expert ProfessorYale Kamisaras one of the greatest ever written on freedom of expression.In theCohenopinion, Harlan famously wrote "one man'svulgarityis another'slyric,"a quote that was later denounced byRobert Borkas "moral relativism".

Justice Harlan is credited for establishing that the First Amendment protects the freedom of association.InNAACP v. Alabama,Justice Harlan delivered the opinion of the court, invalidating an Alabama law that required theNAACPto disclose membership lists.However he did not believe that individuals were entitled to exercise their First Amendment rights wherever they pleased. He joined inAdderley v. Florida,which controversially upheld a trespassing conviction for protesters who demonstrated on government property. He dissented fromBrown v. Louisiana,in which the Court held that protesters were entitled to engage in a sit-in at a public library. Likewise, he disagreed withTinker v. Des Moines,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 criminaldefendants.In some instances, Justice Harlan concurred in the result,while in many other cases he found himself in dissent. Harlan was usually joined by the other moderate members of the Court: JusticesPotter Stewart,Tom Clark,andByron White.

Most notably, Harlan dissented from Supreme Court rulings restrictinginterrogationtechniques used by law enforcement officers. For example, he dissented from the Court's holding inEscobedo v. Illinois,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 withMiranda v. Arizona,which required law enforcement officials to warn a suspect of his rights before questioning him (seeMiranda 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."

InGideon v. Wainwright,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 onlyat trial,and noton appeal;thus, he dissented fromDouglas v. California.

Harlan wrote the majority opinion inLeary v. United States—a case that declared theMarijuana Tax Actunconstitutional based on theFifth Amendmentprotection againstself-incrimination.

Justice Harlan's concurrence inKatz v. United Statesset forth the test for determining whether government conduct constituted asearch.In this case the Supreme Court held thateavesdroppingon thepetitioner's telephone conversation constituted a search in the meaning of the Fourth Amendment and thus required awarrant.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.'"

Voting rights

See also:Gerrymandering

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 inColegrove v. Greenadmonished the courts to stay out of the "political thicket" ofreapportionment.The Supreme Court, however, disagreed with Harlan in a series of rulings during the 1960s. The first case in this line of rulings wasBaker v. Carr.The Court ruled that the courts hadjurisdictionovermalapportionmentissues 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.

Then, inWesberry v. Sanders,the Supreme Court, relying on the Constitution's requirement that theUnited States House of Representativesbe elected "by the People of the several States," ruled thatcongressional districtsin 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."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 inReynolds v. Sims,in which the Court relied on theEqual Protection Clauseto 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 theFifteenth Amendmentwould have been superfluous if the Fourteenth Amendment (the basis of the reapportionment decisions) had conferred a generalright to vote,he claimed that the Constitution did not require states to adhere to theone man, one voteprinciple, 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.

For similar reasons, Harlan dissented fromCarrington v. Rash,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."Similarly, Justice Harlan disagreed with the Court's ruling inHarper v. Virginia Board of Elections,invalidating the use of thepoll taxas 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.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 himLady Chatterley's Lover).Gravely ill, he retired from the Supreme Court on September 23, 1971.

Harlan died fromspinal cancerthree months later, on December 29, 1971.He was buried at the Emmanuel Church Cemetery in Weston, Connecticut.PresidentRichard Nixonconsidered nominatingMildred 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 theAmerican Bar Associationfound Lillie to be unqualified.Thereafter, Nixon nominated William Rehnquist (a future Chief Justice), who was confirmed by the Senate.

Despite his many dissents, Harlan has been described as one of the most influential Supreme Court justices of the twentieth century.He was elected a Fellow of theAmerican Academy of Arts and Sciencesin 1960.Harlan's extensive professional and Supreme Court papers (343 cubic feet) were donated to Princeton University, where they are housed at theSeeley G. Mudd Manuscript Libraryand open to research.Other papers repose at several other libraries. Ethel Harlan, his wife, outlived him by only a few months and died on June 12, 1972.She suffered fromAlzheimer's diseasefor the last seven years of her life.

See also

• List of justices of the Supreme Court of the United States
• List of United States Supreme Court justices by time in office
• List of law clerks of the Supreme Court of the United States (Seat 9)
• List of United States Supreme Court cases by the Warren Court
• List of United States Supreme Court cases by the Burger Court
• Clay v. United States(1971)
• Muhammad Ali's Greatest Fight(2013 television film)

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• Oeslner, Lesley (December 30, 1971)."Harlan dies at 72; on Court 16 years".The New York Times.RetrievedApril 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 fromthe 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.ISBN978-0-252-02762-8.
• 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.RetrievedOctober 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.RetrievedOctober 8,2008.
• Yarbrough, Tinsley E. (1989).Mr. Justice Black and his critics.Duke University Press.ISBN978-0-8223-0866-9.
• Yarbrough, Tinsley E. (1992).John Marshall Harlan: Great Dissenter of the Warren Court.Oxford, Oxfordshire: Oxford University Press.ISBN978-0-19-506090-4.

Further reading

• Abraham, Henry J. (1992).Justices and Presidents: A Political History of Appointments to the Supreme Court(3rd ed.). Oxford, Oxfordshire:Oxford University Press.ISBN0-19-506557-3.
• Cushman, Clare (2001).The Supreme Court Justices: Illustrated Biographies, 1789–1995(2nd ed.). (Supreme Court Historical Society,Congressional Quarterly Books).ISBN1-56802-126-7.
• Frank, John P. (1995). Friedman, Leon; Israel, Fred L. (eds.).The Justices of the United States Supreme Court: Their Lives and Major Opinions.Chelsea HousePublishers.ISBN0-7910-1377-4.
• Hall, Kermit L., ed. (1992).The Oxford Companion to the Supreme Court of the United States.Oxford, Oxfordshire: Oxford University Press.ISBN0-19-505835-6.
• Martin, Fenton S.; Goehlert, Robert U. (1990).The U.S. Supreme Court: A Bibliography.Washington, D.C.:Congressional QuarterlyBooks.ISBN0-87187-554-3.
• 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.ISBN0-8153-1176-1.
• Woodward, Robert;Armstrong, Scott(1979).The Brethren: Inside the Supreme Court.New York:Avon Books.ISBN978-0-380-52183-8.

External links

• John Marshall Harlan IIat theBiographical Directory of Federal Judges,a publication of theFederal Judicial Center.
• Ariens, Michael."John Marshall Harlan II".www.michaelariens.com. Archived fromthe originalon May 16, 2008.RetrievedAugust 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 fromthe originalon February 10, 2009.RetrievedOctober 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."ArchivedApril 15, 2013, at theWayback Machine.
• Booknotesinterview with Tinsley Yarbrough onJohn Marshall Harlan: Great Dissenter of the Warren Court,April 26, 1992.
• John Marshall Harlan IIatFind a Grave