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.
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.