Harlan, John Marshall, II

Harlan, John Marshall, II (b. Chicago, Ill., 20 May 1899; d. Washington, D.C., 29 Dec. 1971; cremated and interred Emmanuel Episcopal Cemetery, Weston, Conn.), associate justice, 1955–1971. John M. Harlan, which he preferred to be called to distinguish himself from his more illustrious grandfather, the first Justice John Marshall Harlan, was born and reared a patrician, despite the financial difficulties his father regularly confronted. His father, John Maynard Harlan, a controversial and colorful lawyer and reform Republican politician, was a Chicago alderman and unsuccessful mayoral candidate who railed against the city's traction (streetcar) interests and their grip on local officials. Ultimately, however, the frustration of failed campaigns and the resulting strains on the elder Harlan's law practice took their toll, and he made his peace with the traction interests, becoming their counsel on a lucrative retainer.

The financial security his new clients provided, as well as the family's impeccable social connections, placed the Harlans at the center of Chicago society. But the young Marshall was to spend little of his life in Chicago. At an early age he was enrolled in a Canadian boarding school, and the family spent summers at the elder Justice Harlan's Quebec summer home. In Canada, John excelled in academics and sports. After a final year of preparatory education at the Lake Placid School in New York, he enrolled at Princeton in the class of 1920. He compiled an outstanding record at Princeton, where he was president of the student newspaper, then attended Oxford on a Rhodes scholarship.

On his return from England, Harlan obtained a position with Root, Clark, Buckner & Howland, one of New York City's most prestigious firms. The firm's chief litigator, Emory Buckner, quickly became young Harlan's mentor and the most significant influence on the development of his professional career. Buckner first insisted that his charge, whose studies in jurisprudence at Oxford had hardly equipped him for an American law practice, enroll at New York Law School, where he completed the two‐year program in a year; he won admission to the bar in 1924. Under Buckner's watchful eye, Harlan honed the litigator's skills, becoming a master of careful preparation and attention to detail—a “lawyer's lawyer” in the eyes of his contemporaries. The elder attorney also provided his young associate with his first taste of public service. When Buckner in 1925 became U.S. attorney for New York's Southern District, Harlan and other promising young lawyers—“Buckner's Boy Scouts,” the press dubbed them—joined his staff, and Harlan soon became his mentor's chief assistant, vigorously enforcing the prohibition law both personally detested. In the late 1920s, when Buckner became a special state attorney general prosecuting the Queens borough president on charges of municipal graft, Harlan was again the elder attorney's top assistant. By that early point in his adult life, moreover, he had become second only to Buckner as their firm's principal trial advocate.

In the 1930s, as Buckner's health began to decline, Harlan increasingly assumed leadership of Root, Clark's litigation team. In his first major case, he successfully defended heirs to the estate of the eccentric New York millionaire Ella Wendel from more than two thousand claimants. By the end of the decade, moreover, he was chief advocate for numerous major corporate clients. When a state judge overruled the appointment of the controversial British philosopher Bertrand Russell to the faculty of the City College of New York, Harlan also represented the college board in an unsuccessful appeal of the court's decision.

By the outbreak of World War II, Harlan was well past the usual age of military service. Even so, he was anxious to have a role in the conflict. When he was offered the opportunity to head the Army Air Corps' operations analysis section in England, he enthusiastically accepted. Harlan's team—consisting of a diverse group of scientists and skilled lawyers—made numerous recommendations to the military authorities, improving the Eighth Bomber Command's record from an abysmal 5‐percent rate of successful air strikes to an impressive 65‐percent success rate. Toward the end of his tour, he also served on a committee planning the postwar occupation of Germany.

Following the war, Harlan returned to his law firm and an impressive array of corporate clients. By the early 1950s, he was considered one of the nation's foremost litigators in antitrust and related actions. In a lengthy Chicago trial, for example, he successfully defended the Du Pont brothers and a number of their corporate interests from antitrust charges growing out of the defendants' grip on General Motors and the United Rubber Company.

Even before the trial judge had reached a decision in the Du Pont case, however, Harlan's career had taken a new and permanent direction. While never extremely active in Republican politics, Harlan had held positions in a number of GOP campaigns. More important, his circle of New York friends included Governor Thomas E. Dewey, for whom he had served briefly as chief counsel to the New York Crime Commission, and the governor's close associate Herbert Brownell. When Brownell became President Dwight Eisenhower's attorney general and a vacancy opened on the U.S. Court of Appeals for the Second Circuit, Brownell offered Harlan the post. And Harlan—whose public service lineage included not only his grandfather but also an uncle who had been an interstate commerce commissioner and an aunt who had served as secretary to the wives of several Republican presidents—accepted.

Harlan's tenure on the Second Circuit was brief, his caseload confined largely to tax matters and other mundane issues. The one notable exception was United States v. Flynn (1954), in which a three‐judge appeals panel, speaking through Harlan, upheld the Smith Act convictions of twelve communists. The reading Harlan gave the clear and present danger test in the case was so deferential to government that a critical commentator was reminded of the archaic English law of constructive treason.

Such a decision, of course, hardly tarnished the judge's reputation with the Eisenhower administration. When Brownell approached Harlan about the circuit judgeship, he had indicated that tenure on the lower court could give his friend the prior judicial experience the Eisenhower administration, following Earl Warren's appointment as chief justice, was insisting that Supreme Court nominees possess. It was hardly surprising, then, that when Justice Robert H. Jackson, another New Yorker, died in October 1954, Harlan was Brownell's candidate. Confirmation of the nomination would be delayed in the Senate nearly five months as segregationists and other conservatives used the occasion for attacks on the Court and Harlan's nominal membership in the Atlantic Union Council, which critics decried as an organization of “one worlders” and a threat to American sovereignty. But the appointment was never in doubt with the Senate voting 71 to 11, with 14 abstaining.

On the bench, Harlan quickly joined the restraintist voting bloc headed by Felix Frankfurter, whom the new justice had met years before through Emory Buckner, one of Frankfurter's closest friends. Harlan also developed a jurisprudence that closely resembled Frankfurter's. A fundamental element of his thinking was a belief that the political processes and principles of federalism and separation of powers were ultimately more effective safeguards of individual liberty than specific constitutional guarantees, as well as the corollary view that judicial constructions of the latter must give due regard to the importance of the former in a free society. Harlan's regard for the “passive virtues” did not mean, of course, that he invariably rejected civil liberties claims. His opinion for the Court in *NAACP v. Alabama ex rel. (1958) was the first to include freedom of association within the scope of First and Fourteenth Amendment guarantees (see Assembly and Association, Citizenship, Freedom of); his dissent in Poe v. Ullman (1961) embraced a right of privacy four years before a majority did; and, in his final term, he spoke for the Court in Cohen v. California (1971), rejecting governmental power to cleanse the public's vocabulary of vulgar speech. While extremely deferential to government assertions of national security claims—as evidenced especially by his last‐term dissent in the Pentagon Papers Case (New York Times Co. v. United States, 1971)—his constructions of the Smith Act in Yates v. United States (1957) and Scales v. United States (1961) made successful prosecution of subversive advocacy and membership an exceedingly difficult undertaking. In the main, however, his voting patterns reflected deference to governmental power, especially assertions of state authority. In Barenblatt v. United States (1959) and related cases, for example, he rejected Justice Hugo Black's absolutist construction of the First Amendment, embracing instead a balancing approach to the amendment's reach, and one according government wide latitude. In the criminal procedure field, moreover, he rejected the Miranda restrictions on police interrogation of suspects and extension of the Fourth Amendment exclusionary rule to state cases.

Harlan also became a common‐law jurist with a firm regard for precedent. When able, in good conscience, to distinguish a precedent, he naturally took advantage of the situation, as in the reapportionment field, where each extension of the one person, one vote principle seemed, to his mind, distinguishable from earlier decisions (see Reapportionment Cases). The failure of the Court to muster a majority definition of obscenity after 1957, moreover, meant no binding precedent in that intractable field, thus enabling Harlan to continue espousing his view that federal obscenity controls should be narrowly confined while states were given broad authority (see Obscenity and Pornography). Normally, however, Harlan scrupulously honored even those precedents with which he most strenuously disagreed.

Harlan was sensitive to the creative role judges can play through their interpretive function. He believed, however, that adherence to abstention and related doctrines of self‐restraint, rather than attempts to confine judges within the constraints of what, to him, was a generally elusive quest for literally or historically intended meaning, was the proper avenue for restraining judicial power (see Judicial Self‐Restraint). Along similar lines, he favored narrow constitutional interpretations closely tied to the facts of the case at issue and thus limited in their potential for expansion to other contexts. A prime reason for his refusal, in Griffin v. Illinois (1956), to go along with the Court in holding that indigent defendants are entitled to free trial transcripts or comparable assistance in appealing their convictions was his concern about such a decision's potential impact. His opposition to one person, one vote was motivated by similar considerations, as was his rejection of the Warren Court's expansive reading of the equal protection guarantee and to the incorporation of the Bill of Rights into the Fourteenth Amendment (see Incorporation Doctrine). And while the flexible, evolving conception of due process that he embraced could be used to expand indefinitely the scope of constitutional rights, as his jurisprudential adversary Justice Black argued, in Harlan's hands that vague guarantee was typically accorded a narrow meaning, and one strictly confined to the circumstances of the particular case (see Due Process, Substantive). In Boddie v. Connecticut (1971), for example, he invoked due process in overturning filing fee requirements for indigents seeking to initiate divorce proceedings. His opinion made it clear, however, that his position was based on the absolute monopoly states possessed over the granting of a divorce, thus making extension of the ruling to other civil proceedings unlikely.

Finally, Harlan was a leading proponent of the “Wechslerian ideal”—the view, espoused by law professor Herbert Wechsler, that judicial decisions must be truly principled, based on analysis and reasons transcending the immediate result of specific cases. Like Wechsler, Harlan believed that judicial decisions should be based on “neutral” principles, not appeals to “justice” or social utility. He was particularly concerned, moreover, that the Court avoid the appearance of favoritism toward particular groups and causes. The Harlan Papers at Princeton reveal, for example, that in a 10 October 1956 memorandum to his colleagues relating to Hood v. Board of Trustees, a school desegregation case, he contended that the Court should adhere to traditional limitations on its powers as much in cases “where a lower court has gone against colored folk as it does … where the decision has been in their favor.” In later years, he continued to urge his colleagues to refrain from extending any group or cause special protection simply out of a well‐meaning but shortsighted desire to do “justice.”

Among those only vaguely aware of his record, Harlan is unfortunately perceived largely as Felix Frankfurter's shadow. Arguably, however, Harlan was a more eloquent, balanced, scholarly, and ultimately effective defender of their restraintist positions than Frankfurter himself. More critically, Frankfurter left the Court in 1962, at the beginning of the most “liberal‐activist” period in the Warren Court's history. It might fairly be said, therefore, that Harlan, not Frankfurter, was the most significant critic of Warren Court trends.

Bibliography

Norman Dorsen , The Second Mr. Justice Harlan: A Constitutional Conservative, New York University Law Review 44 (April 1969): 249–271.
Mr. Justice Harlan: A Symposium, Harvard Law Review 85 (December 1971): 369–391.
David L. Shapiro, ed, The Evolution of a Judicial Philosophy (1969).
J. Harvie Wilkinson III , Justice John M. Harlan and the Values of Federalism, Virginia Law Review 57 (October 1971): 1185–1221.
Tinsley E. Yarbrough , John Marshall Harlan: Great Dissenter of the Warren Court (1992).

Tinsley E. Yarbrough