John Marshall Harlan (1833-1911)
John Marshall Harlan
John Marshall Harlan
The second Justice John Marshall Harlan (1899-1971) preached the virtues of judicial restraint and federalism as a persistent dissenter from the reformist decisions of the Warren Court.
Dissenting was a Harlan family tradition. The grandfather whose name John Marshall Harlan bore had been a member of the turn-of-the-century Supreme Court whose lonely protests against racist rulings had made him a legend. The father and son of that first Justice Harlan were also lawyers. His namesake was born in Chicago on May 20, 1899. The second Justice Harlan attended elementary and secondary schools in the United States and Canada, then enrolled at Princeton in 1916. Following his graduation in 1920, he attended Balliol College, Oxford, as a Rhodes Scholar, staying on to study law there and ultimately receiving both B.A. and M.A. degrees. Upon his return to the United States he commenced an apprenticeship with the Wall Street law firm of Root, Clark, Buckner & Howland, meanwhile completing his formal education as a part-time student at the New York Law School, which awarded him an LL.B. in 1924.
Harlan's association with Root, Clark continued for three decades. The firm made him a partner in 1931, and he became its leading trial lawyer in 1941. Harlan handled a number of spectacular and highly publicized cases for his law firm. He represented boxer Gene Tunney in a contract dispute and the New York City Board of Education in litigation arising out of its attempt to employ Bertrand Russell. Especially impressive was his defense of the Ella Wendell will against imposters claiming to be heirs of the multimillionaire spinster. Harlan also argued several appeals before the Supreme Court, in one case winning a ruling that became a landmark in the fields of corporate law and civil procedure.
Although lengthy, his service with Root, Clark was not continuous. He interrupted it several times for public service. When one of the firm's senior partners, Emory R. Buckner, was appointed U.S. attorney for the southern district of New York in 1925, Harlan became his assistant. In that capacity he participated in the prosecution of former Attorney General Harry Daugherty for official misconduct and in efforts to enforce prohibition. After returning to Root, Clark in 1927, Buckner and Harlan took leave again the following year to serve as special prosecutors for the state in an investigation of municipal graft in Queens.
During World War II Harlan joined the armed forces, rising to the rank of colonel and winning several decorations for his work as head of the Operational Analysis Section of the Eighth Air Force in England. He also served with the Air Force's Post-War Planning Section. After a few years back in private practice, in 1951 Harlan became the general counsel of the New York State Crime Commission, a body created to study the relationship between organized crime and state government.
Supreme Court Justice
Soon after he completed that assignment, President Eisenhower appointed Harlan to the U.S. Court of Appeals for the Second Circuit. Harlan spent less than a year there before being elevated to the Supreme Court on November 8, 1954. His nomination encountered resistance from southerners, who feared this Harlan might share his grandfather's well known hostility to legalized segregation and hoped that delaying his confirmation might keep the Court from implementing its recently announced ruling in Brown v. Board of Education (1954). Not until March 28, 1955, was Harlan able to take his seat.
He quickly established a reputation as a "lawyer's judge" who wrote carefully crafted and scholarly opinions which explicated in great detail the reasons for his decisions. Harlan also worked hard. During the ten year period beginning with the Court's 1958 term, he authored more opinions per term than any other Justice. The reason was that he so seldom agreed with his colleagues. During his 17 years on the Court, Harlan wrote 613 opinions. Of these, 296 were dissents and another 149 were concurrances. Only 168 times did he speak for the majority.
Harlan served on a Court, headed throughout most of his tenure by Chief Justice Earl Warren, which was revolutionizing American constitutional law, making it an instrument for the promotion of egalitarianism, the protection of the disadvantaged, and the accomplishment of a wide variety of reforms. In the process, the Warren Court greatly expanded the role and power of the federal judiciary and considerably reduced the autonomy of the states. Harlan marched to a different drummer. Although conservative in the sense that he believed the Court should consider historical tradition and not lightly overrule its earlier decisions, he did not oppose the substance of the Warren Court's liberal reforms. Harlan was personally committed to racial justice, adopted forward positions on the enforcement of the Bill of Rights in a federal context, and sometimes took quite libertarian stands in speech and privacy cases. But he thought reform should come about through legislative action which reflected popular consent rather than through imposition by judicial fiat. Harlan preached endlessly about the need for judicial self-restraint.
An even more persistent theme in his dissents was federalism. Harlan idealized diversity and pluralism and loathed what he viewed as the compelled uniformity the Court was forcing on the country. He protested his colleagues' insistence that virtually all elected members of state and local government represent districts of equal population. He also fought a long losing battle against imposing most federal criminal procedures on the states by incorporating them into the Due Process Clause of the Fourteenth Amendment. Harlan thought the Constitution required of state criminal procedure only fundamental fairness, not compliance with every rule the federal courts had to follow. By binding the states to national standards of its own making, he argued, the Supreme Court was precluding them from engaging in potentially productive experimentation.
His futile fight for federalism and restraint continued until cancer forced him to resign in September 1971. Although often defeated, Harlan was never vanquished, and after his death on December 29, 1971, his reputation, like that of his famous grandfather, continued to grow.
There is no book-length biography of Harlan, and his personal papers at Princeton remain a largely untapped resource. There is a good "Biographical Note" in David L. Shapiro, editor, The Evolution of a Judicial Philosophy: Selected Opinions and Papers of Justice John M. Harlan (1969). Norman Dorsen's "John Marshall Harlan, " in The Justices of the United States Supreme Court 1789-1969: Their Lives and Major Opinions, edited by Leon Friedman and Fred L. Israel (1969), Volume 4, and the same author's nearly identical "The Second Mr. Justice Harlan: A Constitutional Conservative, " in New York University Law Review (April 1969) are also informative. Dorsen's "John Marshall Harlan, " in The Burger Court 1969-1978, edited by Leon Friedman (1978) analyzes the last years of Harlan's tenure on the Court. Henry J. Bourguignon, "The Second Mr. Justice Harlan: His Principles of Judicial Decision Making, " in Supreme Court Review 1979 (1980) and J. Harvie Wilkerson III, "Justice John M. Harlan and the Values of Federalism, " in Virginia Law Review 57 (October 1971) are perceptive studies of Harlan's jurisprudence. Stephen M. Dane, "'Ordered Liberty' and Self-Restraint: The Judicial Philosophy of the Second Justice Harlan, " University of Cincinnati Law Review 51 (1982) is not as good. □
Harlan, John Marshall (1833-1911)
John Marshall Harlan (1833-1911)
Supreme court justice
Supreme Court. John Marshall Harlan was one of the most influential Supreme Court justices in history, partly because he disagreed with his colleagues on some of the most pivotal cases to appear before the court. “He could lead but he could not follow. . . . His was not the temper of a negotiator,” Attorney General George Wickersham said of Harlan. In his thirty-four years on the court, Harlan wrote opinions on 703 cases, but he was more noted for his 316 vigorous dissents. Harlan disagreed profoundly with Justice Stephen Field, the court’s intellectual giant, for whom liberty of contract and natural rights became almost sacred, untouchable by state of federal law. Harlan was more willing to let state legislatures regulate business enterprise and working conditions and did not think judges should base decisions on their own political philosophy.
Political Background. Harlan was born in Boyle County, Kentucky. During the Civil War Harlan and his father were staunch unionists. President Abraham Lincoln rewarded the elder Harlan by appointing him federal prosecutor of the state; the younger Harlan, who unsuccessfully ran for Congress in 1861, became a colonel in the state’s volunteer infantry. Though he supported the Union, Harlan was a harsh critic of the Lincoln administration. He supported the Constitutional Union presidential nominee in 1860 and in 1864 campaigned actively for Democratic candidate George McClellan. Harlan opposed the Thirteenth Amendment to end slavery as a “flagrant invasion of the right of self government” that he would oppose even “if there were not a dozen slaves in Kentucky.” After the war Harlan became reconciled to the importance of Reconstruction, the federal policy that emancipated African Americans and extended full citizenship rights to them. At the 1876 Republican convention he supported Rutherford B. Hayes. When Hayes became president, he sent Harlan to Louisiana to resolve a dispute between white Democrats and black Republicans. In October 1877 Hayes appointed Harlan to the Supreme Court. Harlan was confirmed despite opposition from southerners for his support of Reconstruction and from Republicans for his criticism of Lincoln.
Civil Rights Cases. Harlan’s first major dissent was in the Civil Rights Cases (1883), when the court struck down the 1875 Civil Rights Act. The court found this law, which forbade racial discrimination in public accommodations, to be beyond the power of Congress. Harlan, who had seen the racial turmoil of the 1860s and 1870s, recognized what would happen if private prejudices were codified into law. According to Harlan racial discrimination in public accommodations was a “badge of servitude” that Congress had to prohibit under the provisions of the Thirteenth Amendment. He also evoked the Fourteenth Amendment, which granted the federal government the affirmative power to protect U.S. citizens.
Judicial Restraint. Harlan consistently admonished his fellow justices to show judicial restraint in their renderings. He opposed the court’s substitution of its own opinion for that of the Congress or a state’s legislature. When the court struck down the income-tax law in Pollock v. Farmers’ Loan £sf Trust Company (1895), Harlan dissented and warned the other justices that they were not judging the law but were entering into a political debate in which they had no part. He affirmed that Congress had a right to levy taxes. As for the argument that giving Congress the power to levy a tax on income or to protect the civil rights of American citizens would destroy the rights of the states, Harlan responded that “the best friends of states rights . . . are those who recognize the Union as possessing all the powers granted to it in the Constitution, whether expressly or by implication.”
Legacy. Though Harlan was often a lone voice, his vitriolic dissents have fared much better than many of his colleagues’ majority opinions. In United States v. E. C. Knight Company (1895) Harlan advocated a broader role for the federal government in regulating the economy, and in Plessy v. Ferguson (1896) he rejected the doctrine of “separate but equal.” In both of these cases, as well as in Civil Rights and Pollock, his dissenting opinions later became law. Harlan lectured on constitutional law at Columbian (now George Washington) University from 1889 until his death. In 1893 he served on the Bering Sea Arbitration Tribunal, which settled a dispute between the United States and Great Britain over Alaskan fisheries. His grandson, John Marshall Harlan II, was also a Supreme Court justice and noted dissenter.
John E. Semonche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890-1920 (Westport, Conn.: Greenwood Press, 1978);
John Marshall Harlan
John Marshall Harlan
John Marshall Harlan was born on June 1, 1833, in Boyle County, Ky. He graduated from Centre College in 1850, then studied law at the University of Transylvania and in the office of his father, a former congressman and Federal district attorney. In 1861 he moved to Louisville to begin his own lucrative law practice.
Originally a Whig, Harlan supported the Constitutional Union party in 1860 and remained a unionist when the Civil War broke out. He recruited a regiment which fought on the side of the North but resigned his colonelcy in 1863 in order to succeed his father as the state attorney general. After the war Harlan entered politics as a Republican, gaining the support of black and white Kentuckians.
Reconstruction in the South
The origins and social credentials of Harlan and many other Kentucky Republicans throw doubt on the often-used generalization that white Republicans in the Reconstruction South were all disreputable, out-of-state "carpetbaggers" who exploited unsophisticated former slaves. Indeed, Harlan regarded the electorate as discerning voters and anticipated close and even unfavorable attention from black voters when, during his race for governor, he agreed to represent an alleged member of the Ku Klux Klan accused of participating in a lynching. Harlan (who won the case) contended that every man, whatever his politics, deserved as good a lawyer as he could pay for.
In the Republican convention of 1876, Harlan nominated his law partner Benjamin H. Bristow but, seeing the contest deadlock between Bristow and James G. Blaine, released Bristow's delegates and secured the nomination of Rutherford B. Hayes. One personal result was a break between Harlan and Bristow, whose careers had been closely parallel. Meanwhile, Harlan, in strong presidential favor, was named associate justice of the U.S. Supreme Court, taking his seat in December 1877.
Supreme Court Justice
During the racially tense decades that followed, Justice Harlan was almost the only man in high Federal office who spoke for the equal rights of African Americans. This concern would have cost him any elective post, but life tenure on the Court allowed his voice to be heard. Harlan alone dissented in U.S. v. Harris (1882), in which the 14th Amendment was declared not to provide African Americans with Federal protection, even from lynching. He dissented again in the Civil Rights Cases (1883), in which the equal protection clause of the 14th Amendment was held not to guarantee equal access for African Americans to privately owned places of public entertainment or accommodation.
Harlan's most famous dissent was in Plessy v. Ferguson (1896). The 14th Amendment says, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"; Harlan contended that a Louisiana law segregating African Americans into separate railroad cars was a violation thereof. Separate was not equal, he argued in a minority opinion, and he predicted, correctly, that "Jim Crow" segregation would soon extend far beyond railroad cars. He was also a dissenter in Berea College v. Kentucky (1908), which held that a Kentucky school segregation law could be made to apply to a long-integrated private college.
His Sense of Constitutionality
Harlan's contribution to racial justice was less an appeal to egalitarianism or to feelings of white guilt than to white feelings of self-confidence. In Plessy, he included an appeal to Anglo-Saxon pride which, he suggested, needed no assistance from segregation laws. Indeed, he saw no inconsistency in his championship both of the rights of oppressed African Americans and of burgeoning corporate enterprises. In his view each deserved protection from infringement on the basic right to develop to full capacity.
Harlan was also committed to the idea that the nation, as well as individuals, should maintain its strength. He dissented when the Supreme Court declared that the income tax was unconstitutional (Pollock v. Farmer's Loan and Trust Company, 1895). Similarly, in support of the premise that the states had "police power" to provide for the public welfare, Harlan joined Oliver Wendell Holmes in dissenting in Lochner v. New York (1905).
A firm believer that the American Constitution and laws passed within its framework meant what they said, Harlan accepted neither Justice Stephen J. Field's appeal to "natural law" in the 19th century nor Chief Justice Edward Douglass White's doctrine of the "rule of reason" in the 20th, as he made clear in his dissent in Standard Oil Company v. U.S. (1911). The majority had held that certain monopolistic practices in restraint of trade were "reasonable" and, hence, allowable despite the Sherman Antitrust Act. Harlan died on Oct. 14, 1911, in Washington.
In 1857 Harlan had married Malvina F. Shanklin; they had six children. In 1955 his grandson and namesake was appointed to the court on which the first John Marshall Harlan had long been the most distinguished justice.
The only biography is Frank Latham, Great Dissenter: John Marshall Harlan (1970). The Bristow Papers at the Library of Congress are important. A study of Harlan is Floyd Barzilia Clark, The Constitutional Doctrines of Justice Harlan (1915; 2d ed. 1969). Allison Dunham and Philip B. Kurland, eds., Mr. Justice (1956; rev. ed. 1964), has a biographical sketch of Harlan. Leo Pfeffer, This Honorable Court: A History of the United States Supreme Court (1965), is a good background study.
Beth, Loren P., John Marshall Harlan: the last Whig justice, Lexington, Ky.: University Press of Kentucky, 1992.