John Marshall Harlan II

John Marshall Harlan II

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John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 from 1955 to 1971. His namesake was his grandfather John Marshall Harlan
John Marshall Harlan
John Marshall Harlan was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases , and Plessy v...

, another associate justice who served from 1877 to 1911.

Harlan was a student at Upper Canada College
Upper Canada College
Upper Canada College , located in midtown Toronto, Ontario, Canada, is an independent elementary and secondary school for boys between Senior Kindergarten and Grade Twelve, operating under the International Baccalaureate program. The secondary school segment is divided into ten houses; eight are...

 and Appleby College
Appleby College
Appleby College is an international independent school located in Oakville, Ontario, Canada, founded in 1911 by John Guest, a former Headmaster of the Preparatory School at Upper Canada College...

 and then at Princeton University
Princeton University
Princeton University is a private research university located in Princeton, New Jersey, United States. The school is one of the eight universities of the Ivy League, and is one of the nine Colonial Colleges founded before the American Revolution....

. He continued his education at Balliol College, Oxford
Balliol College, Oxford
Balliol College , founded in 1263, is one of the constituent colleges of the University of Oxford in England but founded by a family with strong Scottish connections....

. 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
New York Law School
New York Law School is a private law school in the TriBeCa neighborhood of Lower Manhattan in New York City. New York Law School is one of the oldest independent law schools in the United States. The school is located within four blocks of all major courts in Manhattan. In 2011, New York Law School...

. Later he served as Assistant U.S. Attorney for the Southern District of New York
U.S. Attorney for the Southern District of New York
The U.S. Attorney for the Southern District of New York is the chief federal law enforcement officer in eight New York counties: New York , Bronx, Westchester, Putnam, Rockland, Orange, Dutchess, and Sullivan. Preet Bharara, who was appointed by Barack Obama in 2009 is the U.S. Attorney for the...

 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
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...

, and a year later president Dwight Eisenhower nominated Harlan to the United States Supreme Court following the death of Justice Robert H. Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...

.

Harlan is often characterized as a member of the conservative wing of the Warren Court
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...

. 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 to precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...

, and was more reluctant to overturn legislation, than many of his colleagues on the Court. He strongly disagreed with the doctrine of incorporation
Incorporation (Bill of Rights)
The incorporation of the Bill of Rights is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to the 1890s, the Bill of Rights was held only to apply to the federal government...

, which held that the provisions of the federal Bill of Rights applied to the state governments, not merely the Federal. At the same time, he advocated a broad interpretation
Judicial interpretation
Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...

 of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

's Due Process Clause, arguing that it protected a wide range of rights not expressly mentioned in the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

. Harlan is sometimes called the "great dissenter
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....

" of the Warren Court, and has been described as one of the most influential Supreme Court justices in the twentieth century. Justice Harlan was gravely ill when he retired from the Supreme Court on September 23, 1971. He died from spinal cancer three months later, on December 29, 1971. After Harlan's retirement, President Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...

 appointed William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...

 to replace him.

Early life and career


John Marshall Harlan was born on May 20, 1899 in Chicago
Chicago
Chicago is the largest city in the US state of Illinois. With nearly 2.7 million residents, it is the most populous city in the Midwestern United States and the third most populous in the US, after New York City and Los Angeles...

, Illinois. He was the son of John 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 governors of Delaware during the seventeenth century; his great-grandfather, James Harlan
James Harlan (congressman)
James Harlan was a U.S. Representative from Kentucky.Born in Mercer County, Kentucky, Harlan attended school before working as a clerk in a dry goods store from 1817 to 1821. Deciding to embark upon a legal career, he read law under the guidance of a local judge before gaining admission to the bar...

, was a congressman during the 1830s; his grandfather, also John Marshall Harlan
John Marshall Harlan
John Marshall Harlan was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases , and Plessy v...

, was an associate justice of the United States Supreme Court from 1877 to 1911; and his uncle, James S. Harlan
James S. Harlan
James S. Harlan was an American lawyer and commerce specialist, son of U.S. Supreme Court Justice John Marshall Harlan and uncle of Justice John Marshall Harlan II. He was born at Evansville, Indiana, graduated from Princeton University in 1883, and studied law in the office of Melville W. Fuller...

, was attorney general of Puerto Rico
Puerto Rico
Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...

 and then chairman of the Interstate Commerce Commission.

In his younger years, Harlan attended The Latin School of Chicago
The Latin School of Chicago
The Latin School of Chicago is a private elementary, middle and high school in the Gold Coast neighborhood in Chicago. The school was founded in 1888 by Mabel Slade Vickery.- History :...

. He later attended two boarding high schools in the Toronto Area
Greater Toronto Area
The Greater Toronto Area is the largest metropolitan area in Canada, with a 2006 census population of 5.5 million. The Greater Toronto Area is usually defined as the central city of Toronto, along with four regional municipalities surrounding it: Durham, Halton, Peel, and York...

, Canada: Upper Canada College
Upper Canada College
Upper Canada College , located in midtown Toronto, Ontario, Canada, is an independent elementary and secondary school for boys between Senior Kindergarten and Grade Twelve, operating under the International Baccalaureate program. The secondary school segment is divided into ten houses; eight are...

 and Appleby College
Appleby College
Appleby College is an international independent school located in Oakville, Ontario, Canada, founded in 1911 by John Guest, a former Headmaster of the Preparatory School at Upper Canada College...

. Upon graduation from Appleby, Harlan returned to the U.S. and in 1916 enrolled at Princeton University
Princeton University
Princeton University is a private research university located in Princeton, New Jersey, United States. The school is one of the eight universities of the Ivy League, and is one of the nine Colonial Colleges founded before the American Revolution....

. There, he was a member of the Ivy Club, served as an editor of The Daily Princetonian
The Daily Princetonian
The Daily Princetonian is the daily independent student newspaper of Princeton University. It is published five days a week from September to May and three days a week during the University's Reading Period in January and May.- Finances :...

, and was class president during his junior and senior years. After graduating from the university in 1920, he received a Rhodes Scholarship
Rhodes Scholarship
The Rhodes Scholarship, named after Cecil Rhodes, is an international postgraduate award for study at the University of Oxford. It was the first large-scale programme of international scholarships, and is widely considered the "world's most prestigious scholarship" by many public sources such as...

, which he used to attend Balliol College, Oxford
Balliol College, Oxford
Balliol College , founded in 1263, is one of the constituent colleges of the University of Oxford in England but founded by a family with strong Scottish connections....

. 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 (now known as Dewey & LeBoeuf
Dewey & LeBoeuf
Dewey & LeBoeuf LLP is a prominent global white shoe law firm, headquartered in New York City. Originally founded in 1909, the firm currently has over 2400 lawyers spread throughout 26 offices in 15 countries on 4 continents, and is known primarily for its corporate, insurance, litigation, tax and...

), one of the leading law firms in the country, while studying law at New York Law School
New York Law School
New York Law School is a private law school in the TriBeCa neighborhood of Lower Manhattan in New York City. New York Law School is one of the oldest independent law schools in the United States. The school is located within four blocks of all major courts in Manhattan. In 2011, New York Law School...

. He received his law degree in 1924 and earned admission to the bar in 1925.

Between 1925 and 1927, Harlan served as Assistant U.S. Attorney for the Southern District of New York, heading the district's Prohibition
Prohibition
Prohibition of alcohol, often referred to simply as prohibition, is the practice of prohibiting the manufacture, transportation, import, export, sale, and consumption of alcohol and alcoholic beverages. The term can also apply to the periods in the histories of the countries during which the...

 unit. He prosecuted Harry M. Daugherty
Harry M. Daugherty
Harry Micajah Daugherty was an American politician. He is best known as a Republican Party boss, and member of the Ohio Gang, the name given to the group of advisors surrounding president Warren G...

, former United States Attorney General. In 1928, he was appointed Special Assistant Attorney General of New York, in which capacity he investigated a scandal involving sewer construction in Queens
Queens
Queens is the easternmost of the five boroughs of New York City. The largest borough in area and the second-largest in population, it is coextensive with Queens County, an administrative division of New York state, in the United States....

. He prosecuted Maurice E. Connolly
Maurice E. Connolly
Maurice E. Connolly was the Borough president of Queens, New York, USA from 1911 to 1928.Born in Corona, Queens, Queens County, New York, he was the son of Maurice Connolly and Mary Jane Connolly. He was of Irish ancestry. He married Helen M. Connell and they had one child, Helen. He was a Democrat...

, the Queens borough president
Borough president
Borough President is an elective office in each of the five boroughs of New York City.-Reasons for establishment:...

, 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 partner Emory Buckner
Emory Buckner
Emory Buckner was a prominent U.S. lawyer who served as the United States Attorney for the Southern District of New York, where he gained a reputation as one of the greatest prosecutors in American history...

 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
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....

, 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 leading trial lawyer at 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 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, filed suits in state and federal courts demanding a part of her fortune. Most of the claimants were imposters; 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 like Randall v. Bailey, which was about the interpretation of a state law governing distribution of corporate dividends. In 1940, he represented the New York Board of Higher Education in its unsuccessful effort to retain Bertrand Russell
Bertrand Russell
Bertrand Arthur William Russell, 3rd Earl Russell, OM, FRS was a British philosopher, logician, mathematician, historian, and social critic. At various points in his life he considered himself a liberal, a socialist, and a pacifist, but he also admitted that he had never been any of these things...

 on the faculty of the City College of New York
City College of New York
The City College of the City University of New York is a senior college of the City University of New York , in New York City. It is also the oldest of the City University's twenty-three institutions of higher learning...

; Russell was declared "morally unfit" to teach. The future justice also represented boxer Gene Tunney
Gene Tunney
James Joseph "Gene" Tunney was the world heavyweight boxing champion from 1926-1928 who defeated Jack Dempsey twice, first in 1926 and then in 1927. Tunney's successful title defense against Dempsey is one of the most famous bouts in boxing history and is known as The Long Count Fight...

 in 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 the controversial Pioneer Fund
Pioneer Fund
The Pioneer Fund is an American non-profit foundation established in 1937 "to advance the scientific study of heredity and human differences." Currently headed by psychology professor J. Philippe Rushton, the fund states that it focuses on projects it perceives will not be easily funded due to...

, a group associated with eugenics
Eugenics
Eugenics is the "applied science or the bio-social movement which advocates the use of practices aimed at improving the genetic composition of a population", usually referring to human populations. The origins of the concept of eugenics began with certain interpretations of Mendelian inheritance,...

 advocacy, and served on its board for long time. He, however, never played any significant role in the fund.

During World War II, Harlan volunteered for military duty, serving as a colonel
Colonel
Colonel , abbreviated Col or COL, is a military rank of a senior commissioned officer. It or a corresponding rank exists in most armies and in many air forces; the naval equivalent rank is generally "Captain". It is also used in some police forces and other paramilitary rank structures...

 in the United States Army Air Force
United States Air Force
The United States Air Force is the aerial warfare service branch of the United States Armed Forces and one of the American uniformed services. Initially part of the United States Army, the USAF was formed as a separate branch of the military on September 18, 1947 under the National Security Act of...

 from 1943 to 1945. He was the chief of the Operational Analysis Section of the Eighth Air Force in England. He won the Legion of Merit
Legion of Merit
The Legion of Merit is a military decoration of the United States armed forces that is awarded for exceptionally meritorious conduct in the performance of outstanding services and achievements...

 from the United States, and the Croix de guerre
Croix de guerre
The Croix de guerre is a military decoration of France. It was first created in 1915 and consists of a square-cross medal on two crossed swords, hanging from a ribbon with various degree pins. The decoration was awarded during World War I, again in World War II, and in other conflicts...

 from both France and Belgium
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...

. In 1946 Harlan returned to private law practice representing Du Pont family
Du Pont family
The Du Pont family is an American family descended from Pierre Samuel du Pont de Nemours . The son of a Paris watchmaker and a member of a Burgundian noble family, he and his sons, Victor Marie du Pont and Eleuthère Irénée du Pont, emigrated to the United States in 1800 and used the resources of...

 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. During this time Harlan also served as chairman of a committee of the Association of the Bar of the City of New York
Association of the Bar of the City of New York
The New York City Bar Association , founded in 1870, is a voluntary association of lawyers and law students. Since 1896, the organization, formally known as the Association of the Bar of the City of New York, has been headquartered in a landmark building on 44th Street, between Fifth and Sixth...

. Later he was elected vice president of it. Harlan's main specialization at that time was corporate
Corporate law
Corporate law is the study of how shareholders, directors, employees, creditors, and other stakeholders such as consumers, the community and the environment interact with one another. Corporate law is a part of a broader companies law...

 and anti-trust law.

Personal life


In 1928, Harlan married Ethel Andrews, who was the daughter of a Yale Colonial History professor. 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
Dewey Ballantine
Dewey Ballantine LLP was a white shoe corporate law firm headquartered in New York City. In 2007, Dewey Ballantine merged with LeBoeuf, Lamb, Greene & MacRae to form Dewey & LeBoeuf...

, where she met John Harlan for the first time. They saw each other regularly after that party and eventually married on November 10, 1928 in Farmington, Connecticut
Farmington, Connecticut
Farmington is a town located in Hartford County in the Farmington Valley area of central Connecticut in the United States. The population was 25,340 at the 2010 census. It is home to the world headquarters of several large corporations including Carrier Corporation, Otis Elevator Company, and Carvel...

.

Harlan, a Presbyterian, maintained a New York City apartment, a summer home in Weston, Connecticut
Weston, Connecticut
Weston is a town in Fairfield County, Connecticut. The population was 10,179 at the 2010 census. The town is served by Route 57 and Route 53, both of which run through the town center. About 19% of the town's workforce commutes to New York City, about to the southwest.Like many towns in...

 and a fishing camp in Murray 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 wearing his grandfather's watch, when he joined the Supreme Court, he would use the same furniture with which his grandfather had furnished his chambers.

John and Ethel Harlan had one daughter, Eva Dillingham (born on February 2, 1932). She was married to Frank Dillingham of West Redding, Connecticut, until his death, and has five children. One of Eva's children, Amelia Newcomb, is the international news editor at The Christian Science Monitor
The Christian Science Monitor
The Christian Science Monitor is an international newspaper published daily online, Monday to Friday, and weekly in print. It was started in 1908 by Mary Baker Eddy, the founder of the Church of Christ, Scientist. As of 2009, the print circulation was 67,703.The CSM is a newspaper that covers...

  and has two children: Harlan, named after John Marshall Harlan II, and Matthew Trevithick.

Supreme Court career


On January 13, 1954, United States President Dwight D. Eisenhower
Dwight D. Eisenhower
Dwight David "Ike" Eisenhower was the 34th President of the United States, from 1953 until 1961. He was a five-star general in the United States Army...

 nominated Harlan to the United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...

, to fill a vacancy created by the death of Judge Augustus Noble Hand
Augustus Noble Hand
Augustus Noble Hand was an American judge who served on the United States District Court for the Southern District of New York and later on the United States Court of Appeals for the Second Circuit. His most notable rulings restricted the reach of obscenity statutes in the areas of literature and...

. He was confirmed by the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 on February 9, and took office on February 10. Harlan knew this court well, as he had often appeared before it and was friendly with many of the judges. However, his stay on the court only lasted for a year. On January 10, 1955, President Eisenhower nominated Harlan to the United States Supreme Court following the death of Justice Robert H. Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...

. On being nominated, the reticent Harlan called reporters into his chambers in New York, and stated, in full, "I am very deeply honored." 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, would enjoyably attend the Circuit's annual conference, bringing his wife and catching up on the latest gossip.
Harlan's nomination came shortly after the Supreme Court handed down its landmark decision in Brown v. Board of Education, declaring segregation in public schools unconstitutional. Chairman of the United States Senate Committee on the Judiciary
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...

, James Eastland, and several southern senators delayed his confirmation, because they (correctly) believed that he would support desegregation of the schools and civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...

. 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 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 by Joseph Edward Lumbard.

On the Supreme Court, Harlan often voted alongside Justice Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma 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 the legal thought. Harlan was an ideological adversary—but close personal friend—of Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...

, 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
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...

.

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.

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 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.

Jurisprudence


Harlan's jurisprudence is often characterized as conservative. He held precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...

 to be of great importance, adhering to the principle of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...

more closely than many of his Supreme Court colleagues. Unlike Justice Black, he eschewed strict textualism
Textualism
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...

. 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 the political process, and that the judiciary should play only a limited role. In his dissent to Reynolds v. Sims
Reynolds v. Sims
Reynolds v. Sims, 377 U.S. 533 was a United States Supreme Court case that ruled that state legislature districts had to be roughly equal in population.-Facts:...

, 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.

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 infamous Plessy v. Ferguson
Plessy v. Ferguson
Plessy v. Ferguson, 163 U.S. 537 , is a landmark United States Supreme Court decision in the jurisprudence of the United States, upholding the constitutionality of state laws requiring racial segregation in private businesses , under the doctrine of "separate but equal".The decision was handed...

case.

He voted with the majority in Cooper v. Aaron
Cooper v. Aaron
Cooper v. Aaron, 358 U.S. 1 , was a landmark decision of the Supreme Court of the United States, which held that the states were bound by the Court's decisions, and could not choose to ignore them.-Background of the case:...

, compelling defiant officials in Arkansas
Arkansas
Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...

 to desegregate public schools. He joined the opinion in Gomillion v. Lightfoot
Gomillion v. Lightfoot
Gomillion v. Lightfoot, 364 U.S. 339 , was a United States Supreme Court decision that found an electoral district created to disenfranchise blacks violated the Fifteenth Amendment.- Decision :...

, which declared that states could not redraw political boundaries in order to reduce the voting power of African-Americans
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

. Moreover, he joined the unanimous decision in Loving v. Virginia
Loving v. Virginia
Loving v. Virginia, , was a landmark civil rights case in which the United States Supreme Court, in a unanimous decision, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v...

, which struck down state laws that banned interracial marriage.

Due Process Clause


Justice Harlan advocated a broad interpretation of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

'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. (See substantive due process.) However, as Justice Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...

 noted in his dissenting opinion
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....

 in Moore v. East Cleveland
Moore v. East Cleveland
Moore v. City of East Cleveland 431 U.S. 494 , is a United States Supreme Court case. The Court held 5-4 that an ordinance which restricted housing to a single family and defined the family as a nuclear family, rather than an extended family, was unconstitutional and a violation of the Due Process...

, "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 of federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...

 and separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

 have played in establishing and preserving American freedoms."

Harlan set forth his interpretation in an often cited dissenting opinion to Poe v. Ullman, which involved a challenge to a Connecticut
Connecticut
Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...

 law banning the use of contraceptives. The Supreme Court dismissed the case on technical grounds, holding that the case was not ripe
Ripeness
In United States law, ripeness refers to the readiness of a case for litigation; "a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." For example, if a law of ambiguous quality has been enacted but never...

 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 restraint
Prior restraint
Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known...

s." 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 in Griswold 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 as Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...

, and Lawrence 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. 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



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 Barron v. Baltimore
Barron v. Baltimore
Barron v. Mayor of Baltimore, 32 U.S. 243 established a precedent on whether the United States Bill of Rights could be applied to state governments.John Barron co-owned a profitable wharf in the Baltimore harbor...

. 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.

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 the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

's free speech clause applied to the states, but that the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...

's self incrimination clause did not.

Harlan's approach was largely similar to that of Justices Benjamin Cardozo and Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma 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, majority of provisions of the Bill of Rights have been extended to the states; the exceptions are the Third Amendment
Third Amendment to the United States Constitution
The Third Amendment to the United States Constitution is a part of the United States Bill of Rights. It was introduced on September 5, 1789, and then three quarters of the states ratified this as well as 9 other amendments on December 15, 1791. It prohibits, in peacetime, the quartering of...

, the grand jury clause of the Fifth Amendment, the Seventh Amendment
Seventh Amendment to the United States Constitution
The Seventh Amendment to the United States Constitution, which was ratified as part of the Bill of Rights, codifies the right to a jury trial in certain civil cases. However, in some civil cases, the Supreme Court has not incorporated the right to a jury trial to the states in the fashion which...

, the excessive bail provision of the Eighth Amendment, the Ninth Amendment
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...

, and the Tenth Amendment
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...

. Thus, although the Supreme Court has agreed with Harlan's general reasoning, the end 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 the separation of church and state
Separation of church and state
The concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation 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
Torcaso v. Watkins
Torcaso v. Watkins, was a United States Supreme Court case in which the court reaffirmed that the United States Constitution prohibits States and the Federal Government from requiring any kind of religious test for public office, in the specific case, as a notary public.-Background:In the early...

. He joined in Engel v. Vitale
Engel v. Vitale
Engel v. Vitale, 370 U.S. 421 , was a landmark United States Supreme Court case that determined that it is unconstitutional for state officials to compose an official school prayer and require its recitation in public schools....

, which declared that it was unconstitutional for states to require the recitation of official prayers in public schools. In Epperson v. Arkansas, similarly, he voted to strike down an Arkansas law banning the teaching of evolution
Evolution
Evolution is any change across successive generations in the heritable characteristics of biological populations. Evolutionary processes give rise to diversity at every level of biological organisation, including species, individual organisms and molecules such as DNA and proteins.Life on Earth...

.

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 principals 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 from Roth v. United States
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...

, 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 his Roth dissent:
The danger is perhaps not great if the people of one State, through their legislature, decide that Lady Chatterley's Lover
Lady Chatterley's Lover
Lady Chatterley's Lover is a novel by D. H. Lawrence, first published in 1928. The first edition was printed privately in Florence, Italy with assistance from Pino Orioli; it could not be published openly in the United Kingdom until 1960...

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
D. H. Lawrence
David Herbert Richards Lawrence was an English novelist, poet, playwright, essayist, literary critic and painter who published as D. H. Lawrence. His collected works represent an extended reflection upon the dehumanising effects of modernity and industrialisation...

 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.


Harlan concurred in New York Times Co. v. Sullivan
New York Times Co. v. Sullivan
New York Times Co. v. Sullivan, 376 U.S. 254 , was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel; and hence allowed free reporting of the...

, which required public officials suing newspapers for libel
Slander and libel
Defamation—also called calumny, vilification, traducement, slander , and libel —is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image...

 to prove that the publisher had acted with "actual malice
Actual malice
Actual malice in United States law is a condition required to establish libel against public officials or public figures and is defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." Reckless disregard does not...

." 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
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...

, who suggested that all libel laws were unconstitutional. In Street v. New York, 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."

When Harlan was a Circuit Judge in 1955, he authorized the decision upholding conviction of leaders of the communist party
Communist party
A political party described as a Communist party includes those that advocate the application of the social principles of communism through a communist form of government...

 (including Elizabeth Gurley Flynn
Elizabeth Gurley Flynn
Elizabeth Gurley Flynn was a labor leader, activist, and feminist who played a leading role in the Industrial Workers of the World . Flynn was a founding member of the American Civil Liberties Union and a visible proponent of women's rights, birth control, and women's suffrage...

) under the Smith Act
Smith Act
The Alien Registration Act or Smith Act of 1940 is a United States federal statute that set criminal penalties for advocating the overthrow of the U.S...

. The ruling was based on the previous Supreme Court's decisions, by which the Court of Appeals was bound. Later, when he was a the Supreme Court justice, Harlan, however, wrote an opinion overturning the conviction of communist party activists as unconstitutional in the case known as Yates v. United States
Yates v. United States
Yates v. United States, 354 U.S. 298 , was a case decided by the Supreme Court of the United States involving free speech and congressional power...

. Another such case was Watkins v. United States
Watkins v. United States
Watkins v. United States, 354 U.S. 178 , was a case brought to the Supreme Court of the United States after John Watkins was convicted under , for failing to answer questions while posed as a witness relating to people he may have known to be communist...

.

Harlan penned the majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....

 in Cohen v. California
Cohen v. California
Cohen v. California, 403 U.S. 15 was a United States Supreme Court case dealing with freedom of speech. The Court overturned a disturbing the peace conviction of a man wearing a jacket decorated with profanity.-Background of the case:...

, holding that wearing a jacket emblazoned with the words "Fuck the Draft
Conscription in the United States
Conscription in the United States has been employed several times, usually during war but also during the nominal peace of the Cold War...

" was speech protected by the First Amendment. His opinion was later described by constitutional law expert Professor Yale Kamisar
Yale Kamisar
Yale Kamisar is the Clarence Darrow Distinguished University Professor of Law Emeritus and Professor Emeritus of Law at the University of Michigan Law School as well as a tenured professor at the University of San Diego School of Law...

 as one of the greatest ever written on freedom of expression. In the Cohen opinion, Harlan famously wrote "one man's vulgarity
Vulgarity
Vulgarity is the quality of being common, coarse or unrefined. This judgement may refer to language, visual art, social classes or social climbers...

 is another's lyric
Lyric poetry
Lyric poetry is a genre of poetry that expresses personal and emotional feelings. In the ancient world, lyric poems were those which were sung to the lyre. Lyric poems do not have to rhyme, and today do not need to be set to music or a beat...

," a quote that was later denounced by Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...

 as "moral relativism
Moral relativism
Moral relativism may be any of several descriptive, meta-ethical, or normative positions. Each of them is concerned with the differences in moral judgments across different people and cultures:...

". Robert Bork was famously refused confirmation to the Supreme Court by the Senate because of his extreme views.

Justice Harlan is credited for the establishing that the First Amendment protects the freedom of association. In NAACP v. Alabama
NAACP v. Alabama
National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 , was an important civil rights case brought before the United States Supreme Court....

, Justice Harlan delivered the opinion of the court, invalidating an Alabama law that required the NAACP to disclose membership lists. However he did not believe that individuals were entitled to exercise their First Amendment rights wherever they pleased. He joined in Adderley v. Florida, which controversially upheld a trespassing conviction for protesters who demonstrated on government property. He dissented from Brown v. Louisiana
Brown v. Louisiana
Brown v. Louisiana, , was a United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that protesters have a First and Fourteenth Amendment right to engage in a peaceful sit-in at a public library. Justice Fortas wrote the plurality opinion and was joined by...

, 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, 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 criminal defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...

s. 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: Justices Potter Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...

, Tom Clark
Tom C. Clark
Thomas Campbell Clark was United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of the United States .- Early life and career :...

, and Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...

.

Most notably, Harlan dissented from Supreme Court rulings restricting interrogation
Interrogation
Interrogation is interviewing as commonly employed by officers of the police, military, and Intelligence agencies with the goal of extracting a confession or obtaining information. Subjects of interrogation are often the suspects, victims, or witnesses of a crime...

 techniques used by law enforcement officers. For example, he dissented from the Court's holding in Escobedo v. Illinois
Escobedo v. Illinois
Escobedo v. Illinois, 378 U.S. 478 , was a United States Supreme Court case holding that criminal suspects have a right to counsel during police interrogations under the Sixth Amendment. The case was decided a year after the court held in Gideon v...

, 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
Miranda v. Arizona
Miranda v. Arizona, , was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant...

, which required law enforcement officials to warn a suspect of his rights before questioning him (see Miranda warning
Miranda warning
The Miranda warning is a warning given by police in the United States to criminal suspects in police custody before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. In Miranda v...

). He closed his dissenting opinion with a quotation from his predecessor, Justice Robert H. Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...

: "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."

In Gideon 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 only at trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...

, and not on appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....

; thus, he dissented from Douglas v. California.

Harlan wrote the majority opinion Leary v. United States
Leary v. United States
Leary v. United States, , is a U.S. Supreme Court case dealing with the constitutionality of the Marihuana Tax Act of 1937. Timothy Leary, a professor and activist, was arrested for the possession of marijuana in violation of the Marihuana Tax Act. Leary challenged the act on the ground that the...

—a case that declared Marijuana Tax Act unconstitutional based on the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...

 protection against self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...

.

Justice Harlan's concurrence in Katz v. United States
Katz v. United States
Katz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...

set forth the test for determining whether government conduct constituted a search
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...

. In this case the Supreme Court held that eavesdropping
Eavesdropping
Eavesdropping is the act of secretly listening to the private conversation of others without their consent, as defined by Black's Law Dictionary...

 of the petitioner
Petitioner
A petitioner is a person who pleads with governmental institution for a legal remedy or a redress of grievances, through use of a petition.-In the courts:The petitioner may seek a legal remedy if the state or another private person has acted unlawfully...

's telephone conversation constituted a search in the meaning of the Fourth Amendment and thus required a warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....

. 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



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 in Colegrove v. Green
Colegrove v. Green
Colegrove v. Green, 328 U.S. 549 , was a United States Supreme Court case. Writing for a 4-3 plurality, Justice Felix Frankfurter held that the federal judiciary had no power to interfere with issues regarding apportionment of state legislatures. The Court held that Article I, section IV of the U.S...

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. The Court ruled that the courts had jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

 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.

Then, in Wesberry v. Sanders
Wesberry v. Sanders
Wesberry v. Sanders, 376 U.S. 1 was a U.S. Supreme Court case involving U.S. Congressional districts in the state of Georgia. The Court issued its ruling on February 17, 1964. This decision requires each state to draw its U.S...

, the Supreme Court, relying on the Constitution's requirement that the United States House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 be elected "by the People of the several States," ruled that congressional district
Congressional district
A congressional district is “a geographical division of a state from which one member of the House of Representatives is elected.”Congressional Districts are made up of three main components, a representative, constituents, and the specific land area that both the representative and the...

s 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." 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 in Reynolds v. Sims
Reynolds v. Sims
Reynolds v. Sims, 377 U.S. 533 was a United States Supreme Court case that ruled that state legislature districts had to be roughly equal in population.-Facts:...

, in which the Court relied on the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...

 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
Fifteenth Amendment to the United States Constitution
The Fifteenth Amendment to the United States Constitution prohibits each government in the United States from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude"...

 would have been superfluous if the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

 (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
OMOV
"One man, one vote" is a slogan that has been used in many parts of the world where campaigns have arisen for universal suffrage. It became particularly prevalent in less developed countries, during the period of decolonisation and the struggles for national sovereignty from the late 1940s onwards...

 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.


For similar reasons, Harlan dissented from Carrington 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 in Harper v. Virginia Board of Elections, invalidating the use of the poll tax
Poll tax
A poll tax is a tax of a portioned, fixed amount per individual in accordance with the census . When a corvée is commuted for cash payment, in effect it becomes a poll tax...

 as 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—and when the Court took an obscenity case, a chagrined Harlan had his wife read him Lady Chatterley's Lover
Lady Chatterley's Lover
Lady Chatterley's Lover is a novel by D. H. Lawrence, first published in 1928. The first edition was printed privately in Florence, Italy with assistance from Pino Orioli; it could not be published openly in the United Kingdom until 1960...

. Gravely ill, he retired from the Supreme Court on September 23, 1971.

Harlan died from spinal cancer three months later, on December 29, 1971. He was buried at the Emmanuel Church Cemetery in Weston, Connecticut
Weston, Connecticut
Weston is a town in Fairfield County, Connecticut. The population was 10,179 at the 2010 census. The town is served by Route 57 and Route 53, both of which run through the town center. About 19% of the town's workforce commutes to New York City, about to the southwest.Like many towns in...

.
  President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...

 considered nominating Mildred Lillie
Mildred Lillie
Mildred Lillie was a California judge whom President Richard Nixon seriously considered for the Supreme Court of the United States in 1971...

, 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
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...

 found Lillie to be unqualified. Thereafter, Nixon nominated William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...

 (the 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 the American Academy of Arts and Sciences
American Academy of Arts and Sciences
The American Academy of Arts and Sciences is an independent policy research center that conducts multidisciplinary studies of complex and emerging problems. The Academy’s elected members are leaders in the academic disciplines, the arts, business, and public affairs.James Bowdoin, John Adams, and...

 in 1960. Harlan's extensive professional and Supreme Court papers (343 cubic feet) were donated to Princeton University
Princeton University
Princeton University is a private research university located in Princeton, New Jersey, United States. The school is one of the eight universities of the Ivy League, and is one of the nine Colonial Colleges founded before the American Revolution....

, where they are housed at the Seely G. Mudd Manuscript Library and 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 from the Alzheimer disease for the last seven years of her life.

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