John Marshall Harlan II

John Marshall Harlan II
Born	John Marshall Harlan 20 5, 1899
Birthplace	Chicago, Illinois, U.S.
Died	Template:Death date and age Washington, D.C., U.S.
Occupation	Lawyer, jurist
Known for	Associate Justice of the U.S. Supreme Court (1955–1971); judicial restraint; dissents during the Warren Court era
Education	Princeton University (AB) Balliol College, Oxford New York Law School (LLB)
Spouse(s)	Ethel Andrews Harlan
Children	1
Awards	Legion of Merit, Belgian Croix de guerre, French Croix de guerre

John Marshall Harlan II (May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1955 to 1971. Named after his grandfather, John Marshall Harlan, who served on the Supreme Court from 1877 to 1911, Harlan is commonly referred to as "John Marshall Harlan II" to distinguish the two justices. Nominated by President Dwight D. Eisenhower following the death of Justice Robert H. Jackson, Harlan became one of the most intellectually influential members of the Warren Court, even as he frequently found himself in dissent against its more sweeping rulings. A graduate of Princeton University, a Rhodes Scholar at Balliol College, Oxford, and a product of New York Law School, Harlan built a distinguished career in private practice and public service in New York before ascending to the federal bench. During World War II, he served as a colonel in the Eighth Air Force, earning the Legion of Merit and both the Belgian and French Croix de guerre. On the Supreme Court, Harlan advocated judicial restraint and a limited role for the federal judiciary, opposing the broad application of the Bill of Rights to the states through the doctrine of incorporation. At the same time, he championed a flexible interpretation of the Fourteenth Amendment's Due Process Clause, arguing that it protected fundamental rights beyond those explicitly enumerated in the Constitution. Gravely ill with spinal cancer, Harlan retired from the Court on September 23, 1971, and died three months later on December 29, 1971.

Early Life

John Marshall Harlan was born on May 20, 1899, in Chicago, Illinois, to John Maynard Harlan and Elizabeth Shannon Flagg Harlan. His father, John Maynard Harlan, was a prominent Chicago attorney and civic reformer who served as an alderman and twice ran unsuccessfully for the mayoralty of Chicago. The Harlan family held a deep connection to the American legal tradition: the younger John Marshall Harlan was the namesake and grandson of John Marshall Harlan, the first Justice Harlan, who had served on the Supreme Court for over three decades and became known for his famous dissent in Plessy v. Ferguson (1896). The family legacy instilled in the younger Harlan a respect for constitutional law and the judicial process that would shape his entire career.

Harlan spent part of his early education in Canada, attending Upper Canada College and Appleby College before returning to the United States for his higher education. These formative years abroad gave Harlan an early exposure to different educational traditions and broadened his intellectual horizons. The Harlan family's social standing and connections to the legal establishment provided the young John Marshall Harlan with access to elite educational institutions and a network of professional contacts that would prove instrumental in his career.

Growing up in a household steeped in legal and political discourse, Harlan developed an early appreciation for the complexities of American governance. His grandfather's long and influential tenure on the Supreme Court served as both an inspiration and a standard against which the younger Harlan would measure his own judicial contributions. Although the two Harlans would develop distinct judicial philosophies—the elder Harlan was known for his robust dissents favoring civil rights, while the younger became associated with judicial restraint—both shared a commitment to principled constitutional interpretation.

Education

Harlan attended Princeton University, where he earned his Bachelor of Arts degree. At Princeton, Harlan distinguished himself as a scholar and was awarded a Rhodes Scholarship, one of the most prestigious academic honors available to American students.

As a Rhodes Scholar, Harlan studied jurisprudence at Balliol College, Oxford, where he was exposed to the English common law tradition and its emphasis on precedent and incremental legal development. His time at Oxford profoundly influenced his judicial philosophy, particularly his respect for precedent and his belief in the gradual evolution of legal doctrine—principles that would later define his approach on the Supreme Court.

Upon returning to the United States in 1923, Harlan pursued his legal studies at New York Law School, where he earned his Bachelor of Laws (LLB) degree. He studied at New York Law School while simultaneously beginning his career in private practice, a dual commitment that reflected both his ambition and his practical orientation toward the law. This combination of elite academic training at Princeton and Oxford with the practical legal education at New York Law School gave Harlan a distinctive intellectual foundation that blended theoretical sophistication with professional rigor.

Career

Early Legal Career

After returning from Oxford in 1923, Harlan joined the prominent New York law firm of Root, Clark, Buckner & Howland (later known as Dewey Ballantine), where he would spend much of his career in private practice. The firm, founded in part by Elihu Root, a former Secretary of State and Nobel Peace Prize laureate, was one of the leading corporate law firms in New York. Harlan's association with the firm placed him at the center of the New York legal establishment and gave him experience in complex corporate and civil litigation.

During this period, Harlan also served in public roles. He was appointed as an Assistant United States Attorney for the Southern District of New York, where he gained experience in federal criminal prosecution. He later served as Special Assistant Attorney General of New York, further broadening his experience in government legal work. These public service positions gave Harlan firsthand knowledge of the workings of the federal and state judicial systems and provided him with the prosecutorial perspective that would later inform his views on criminal procedure and the rights of the accused.

Between his periods of public service, Harlan returned to private practice at Root, Clark, Buckner & Howland, where he became a leading trial and appellate advocate. His practice encompassed a wide range of complex civil litigation, and he earned a reputation as a meticulous and skilled lawyer with a mastery of legal procedure and substantive law.

Military Service

With the outbreak of World War II, Harlan entered military service in 1943. He served as a colonel in the United States Army Air Forces, assigned to the Eighth Air Force, which was based in England and conducted strategic bombing campaigns over occupied Europe and Germany. Harlan's role involved operational planning and oversight, and his service was recognized with significant military honors. He received the Legion of Merit, as well as the Belgian Croix de guerre and the French Croix de guerre, reflecting the multinational character of the Allied war effort and the high regard in which his contributions were held. He completed his military service in 1945 and returned to his legal career in New York.

Court of Appeals

In 1954, President Dwight D. Eisenhower appointed Harlan to the United States Court of Appeals for the Second Circuit, one of the most prestigious federal appellate courts in the country. He succeeded Augustus Noble Hand on the bench. Harlan's tenure on the Second Circuit was brief—lasting from February 10, 1954, to March 27, 1955—but it provided him with direct experience in appellate judicial decision-making and cemented his reputation as a thoughtful and capable jurist. His successor on the Second Circuit was J. Edward Lumbard.

Supreme Court Nomination and Confirmation

Following the death of Justice Robert H. Jackson in 1954, President Eisenhower nominated Harlan to the Supreme Court of the United States. The nomination was part of Eisenhower's effort to appoint jurists of a conservative temperament who would exercise judicial restraint. Harlan's distinguished record as a practitioner, his military service, and his brief but accomplished tenure on the Second Circuit made him a strong candidate.

Harlan's confirmation was not without controversy. Some Southern senators opposed his nomination due to concerns about his views on civil rights and federal power, particularly in light of the Court's recent decision in Brown v. Board of Education (1954). Despite this opposition, the Senate confirmed Harlan, and he took the oath of office on March 28, 1955.

Jurisprudence on the Supreme Court

Harlan served on the Supreme Court for over sixteen years, from 1955 to 1971, a period that coincided almost entirely with the tenure of Chief Justice Earl Warren. During this era, the Warren Court undertook a broad expansion of civil rights and civil liberties, reshaping American constitutional law in areas including racial desegregation, criminal procedure, voting rights, and freedom of expression. Harlan, often characterized as a member of the conservative wing of the Court, frequently dissented from or sought to limit the scope of these decisions.

Harlan's judicial philosophy was rooted in a commitment to judicial restraint and a respect for the structural principles of federalism. He believed that the Supreme Court should not function as, in his own words, "a general haven for reform movements," and he was skeptical of judicial decisions that imposed sweeping changes on state and local governance. He adhered more closely to precedent than many of his colleagues and was reluctant to overturn legislation passed by democratically elected bodies.

Incorporation and the Bill of Rights

One of Harlan's most significant and enduring positions concerned the doctrine of incorporation—the legal theory by which the protections of the federal Bill of Rights are applied to state governments through the Fourteenth Amendment. Harlan was a strong critic of total incorporation, arguing that the framers of the Fourteenth Amendment did not intend to apply the entire Bill of Rights to the states.

Instead, Harlan advocated a more flexible approach rooted in the Due Process Clause of the Fourteenth Amendment. He argued that the Due Process Clause protected fundamental principles of liberty and justice, and that courts should evaluate whether specific rights were essential to a scheme of "ordered liberty" rather than mechanically applying each provision of the Bill of Rights to the states. This approach, sometimes described as "selective incorporation plus," gave judges greater discretion in determining which rights warranted protection in state proceedings, but also meant that the protections afforded might differ in scope from those applied to the federal government.

Harlan's position on incorporation placed him in opposition to Justices such as Hugo Black, who favored total incorporation, and influenced decades of scholarly and judicial debate on the relationship between the Bill of Rights and the Fourteenth Amendment.

Criminal Procedure

Harlan frequently dissented from the Warren Court's landmark criminal procedure decisions. He expressed concern that decisions expanding the rights of criminal defendants would hamper law enforcement and undermine the ability of states to manage their own criminal justice systems. At the same time, Harlan's approach to criminal procedure was not simply restrictive; he believed that the Due Process Clause independently guaranteed certain procedural protections and that courts should evaluate the fairness of proceedings on a case-by-case basis rather than applying rigid constitutional rules.

Privacy and Substantive Due Process

Despite his reputation for judicial conservatism, Harlan made significant contributions to the development of the right to privacy and the doctrine of substantive due process. In his influential concurrence in Griswold v. Connecticut (1965), Harlan argued that the Due Process Clause of the Fourteenth Amendment protected a broad range of fundamental liberties, including the right of married couples to use contraceptives, without relying on the specific guarantees of the Bill of Rights. This reasoning would later prove influential in subsequent privacy decisions, including Roe v. Wade (1973) and Lawrence v. Texas (2003), which relied in part on the substantive due process framework that Harlan had championed.

Harlan's willingness to recognize unenumerated rights through the Due Process Clause, even as he resisted the mechanical incorporation of the Bill of Rights, reflected a nuanced and sophisticated constitutional vision. He believed that the Constitution's protections were not limited to the rights explicitly listed in the text but evolved in accordance with "the traditions and [collective] conscience of our people."

First Amendment

Harlan also contributed to First Amendment jurisprudence during his tenure. His opinions in cases involving freedom of speech and expression reflected his characteristic balance between protecting individual liberties and respecting governmental authority. His approach emphasized the importance of context and the need to balance competing interests rather than applying absolute rules.

Reapportionment

Harlan was a notable critic of the Warren Court's reapportionment decisions, including Reynolds v. Sims (1964), which established the "one person, one vote" principle for state legislative districts. He argued that the Constitution did not require mathematical equality in legislative apportionment and that such decisions intruded upon questions properly left to the political process.

Retirement

By 1971, Harlan's health had deteriorated significantly. He suffered from spinal cancer, and his eyesight had declined to the point where he could no longer read the briefs and opinions that were essential to his work. Despite his infirmity, Harlan continued to participate in the Court's deliberations for as long as he was able. He retired from the Supreme Court on September 23, 1971. President Richard Nixon nominated William Rehnquist to succeed Harlan on the Court.

Personal Life

Harlan married Ethel Andrews, and the couple had one daughter. The family maintained a residence in Weston, Connecticut, where Harlan is buried at Emmanuel Church Cemetery.

Harlan was known among his colleagues and clerks for his personal courtesy, intellectual rigor, and dedication to the craft of legal reasoning. Despite his frequent disagreements with the majority of the Warren Court, he maintained cordial professional relationships with his colleagues, including those with whom he most often disagreed. His former law clerks, many of whom went on to distinguished careers in law, academia, and public service, often spoke of his mentorship and the high standards he set for legal analysis.

Harlan's eyesight began to fail in his later years on the Court, and he eventually required his law clerks to read briefs and opinions aloud to him. Despite this significant disability, he continued to produce detailed and carefully reasoned opinions until his retirement. He died of spinal cancer on December 29, 1971, in Washington, D.C., approximately three months after leaving the bench.

Recognition

Harlan's military service during World War II earned him the Legion of Merit, the Belgian Croix de guerre, and the French Croix de guerre. He was elected a Fellow of the American Academy of Arts and Sciences.

Harlan's judicial opinions continue to be studied and cited in constitutional law scholarship and Supreme Court decisions. His concurrence in Griswold v. Connecticut and his dissents in incorporation and reapportionment cases remain staples of constitutional law casebooks and are frequently referenced in academic and judicial discourse on the proper scope of federal judicial power.

His papers are held at Princeton University's Seeley G. Mudd Manuscript Library, where they are available to researchers studying his judicial career, his personal correspondence, and his role in the major constitutional debates of the mid-twentieth century.

The Supreme Court Historical Society recognizes Harlan's tenure as a significant chapter in the history of the Court, noting his role as the principal intellectual counterweight to the Warren Court's expansive approach to constitutional interpretation.

Legacy

John Marshall Harlan II occupies a distinctive place in the history of the Supreme Court. While he was often in the minority during the Warren Court era, his opinions—particularly his dissents—have gained increasing influence over time. Legal scholars have noted that many of Harlan's positions, once considered conservative outliers, have been vindicated or at least taken seriously by subsequent Courts.

Harlan's approach to substantive due process, articulated most prominently in his Griswold concurrence, proved to be among his most consequential contributions to American law. By arguing that the Due Process Clause of the Fourteenth Amendment independently protected fundamental liberties, Harlan provided a doctrinal framework that the Court would employ in a series of landmark decisions extending the right to privacy and personal autonomy.

His critique of the incorporation doctrine, while not ultimately adopted by the Court in full, continues to inform scholarly debate about the relationship between the Bill of Rights and the Fourteenth Amendment. Harlan's insistence that the Due Process Clause should be interpreted through a framework of "ordered liberty" rather than through the mechanical application of specific Bill of Rights provisions offered an alternative vision of constitutional adjudication that has attracted both admirers and critics.

Harlan is also remembered for the quality and intellectual depth of his written opinions. His dissents in particular are studied for their careful reasoning, their fidelity to text and precedent, and their respect for the structural principles of federalism and separation of powers. In an era when the Supreme Court was dramatically expanding the scope of individual rights and federal power, Harlan served as a principled voice for restraint and institutional modesty.

The SCOTUSblog commemorated the anniversary of Harlan's death on December 29, 2025, reflecting the continued interest in his judicial legacy more than half a century after his passing. His grandson's legacy as the "Great Dissenter" of the nineteenth century notwithstanding, John Marshall Harlan II earned his own reputation as one of the most intellectually formidable and principled justices of the twentieth century, whose influence on American constitutional law has endured well beyond his years on the bench.