John Marshall Harlan served as U.S. Supreme Court Justice from 1955 to 1971. His tenure spanned almost all of the Warren Court years (1953–1969) and extended into the Burger Court. He was the son, grandson, and great-grandson of lawyers, and the grandson of John Marshall Harlan, who also served on the Supreme Court, from 1877 to 1911.
Harlan was educated at Princeton (where hewas class president), Oxford, and New York Law School. He was both a federal and state prosecutor and a Wall Street lawyer in private practice. He served less than a year as a judge of the U.S. Court of Appeals for the Second Circuit before President Eisenhower nominated him to the Supreme Court to replace Robert H. Jackson.
Harlan was greatly admired for the craftsmanship of his opinions and the civility and warmth of his manner. His biographer refers to him as the ‘‘great dissenter of the Warren Court.’’
Harlan indeed frequently dissented fromthe Warren Court’s decisions. He parted ways with the majority in such landmark opinions as Miranda v. Arizona (1966), Reynolds v. Sims (1964, one-person, one-vote legislative apportionment), and Mapp v. Ohio (1961, exclusionary rule for evidence obtained through unreasonable searches and seizures applied to states). Even when he joined the Court’s opinions, Harlan frequently concurred separately to indicate that his agreement was limited. ‘‘Upon the foregoing premises, I join the opinion of the Court,’’ Harlan often wrote.
But dismissing Harlan as an inveterate naysayer would oversimplify his jurisprudence and underestimate his judgeship. For one thing, Harlan was admired as a craftsman and intellectual by his colleagues, who also appreciated Harlan’s respect, civility, and warmth. Harlan’s dissents ‘‘seared, but never burned,’’ Chief Justice Earl Warren said. Harlan maintained close relationships with both Felix Frankfurter, with whom he often agreed on constitutional issues, and Hugo Black, with whom he frequently disagreed. Justice Sandra Day O’Connor has extolled Harlan as the exemplar of judicial collegiality.
Harlan also cannot be easily pigeonholed because he did not invariably vote against citizen rights. For example, he concurred in the right to counsel case, Gideon v. Wainwright (1963). He joined theCourt in enforcing the mandate of Brown v. Board of Education (1954, 1955). He reversed convictions of Communist Party members in Yates v. United States (1957), one of several such Court opinions countering the McCarthyism of the 1950s. Harlan also dissented forcefully in Poe v.Ullman (1961), arguing for a constitutional right to privacy.
Harlan’s votes for and against individual liberties are only superficially inconsistent. Understood in the context of Harlan’s philosophy, his decisions appear more consistent. He was motivated by several values that explain and unify his opinions. First, he was a believer in the process approach to judicial decision making. His was an analytical style based on history and precedent. If a Warren Court decision lacked precedential support, or was unfaithful to precedent, Harlan unhesitatingly noted the flaw.
Harlan also valued federalism. His federalism was not the nationalism of the old Federalists, but a respect for the values of state sovereignty and diversity and the constitutional balance of state and federal power. To Harlan, timeless principles of federalism were more important than a contemporary judge’s notion of what was ‘‘right’’ or ‘‘just.’’
Harlan also preferred the political process to the judicial process in rectifying social injustice. It was not the function of the judiciary to cure social problems or promote equality, Harlan argued.
These beliefs cautioned Harlan against what he regarded as the errors of the Warren Court. He argued against the incorporation doctrine, by which the Court incorporated selected provisions of the Bill of Rights into the due process clause of the Fourteenth Amendment. The Fourteenth Amendment did not necessarily have the same content as the Bill of Rights. Specifically, the due process clause did not impose precisely the same limits upon the states that the Bill of Rights required of the federal government.
But Harlan also believed that the Fourteenth Amendment protects basic rights. Those rights were not necessarily found in the Bill of Rights, but were independent guarantees of the due process clause, rooted in their historical and fundamental character. As he wrote in his concurrence in Gideon, the question for Harlan was whether a right protected against the federal government was ‘‘implicit in the concept of ordered liberty’’ that the due process clause represented, and therefore the right was valid against the states. The answer could not be found in any shortcut by looking at the Bill of Rights to see whether the right was enshrined there, but had to be found case by case.
In Harlan’s hierarchy of civil liberties, these were among the rights sufficiently fundamental to be worthy of protection against the states: the right to counsel (Gideon v. Wainwright); the freedom of association (NAACP v. Alabama ); the freedom of expression (Cohen v. California ); marital privacy (Poe v. Ullman, Griswold v. Connecticut ); and protection against cruel and unusual punishment (Robinson v. California ). In these areas, Harlan was not merely willing to accede to the Warren Court majority; he wrote the Court’s opinions in Cohen and NAACP v. Alabama, and presaged Griswold with his earlier dissent in Poe.
Harlan assailed the incorporation doctrine as unprincipled and not historically grounded, lacking sufficient regard for the importance of the states and, as he argued in his concurrence in Griswold v. Connecticut, unduly restrictive of the reach of due process. Harlan was no more satisfied with ‘‘selective incorporation’’ of the Bill of Rights than he was with the idea of ‘‘total incorporation.’’
But Harlan’s approach seemed no more certain or expansive than the Warren Court majority’s. His view of the Fourteenth Amendment depended no less on an opinion that the right enforced against the states was sufficiently important. As he wrote in Griswold, Harlan would turn for guidance to ‘‘the teachings of history, . . . basic values that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separation of powers.. . .’’ And although he argued that the incorporation doctrine was more restrictive, in practice it frequently resulted in more, rather than less, protection than Harlan’s vision of the Fourteenth Amendment. This was most notably true in the areas of criminal procedural rights and reapportionment.
Next to Justice Warren and the majority of the Warren Court, whose approach emphasized justice more than principle, judicial activism rather than restraint, Harlan was noticeably out of step. Harlan was on the losing end of many issues.
In Harper v. Virginia Board of Elections (1966), for example, he dissented from an opinion that poll taxes were unconstitutional. He condemned judicial imposition of an ‘‘ideology of ‘‘unrestrained egalitarianism’’ that he failed to find in the equal protection clause, which he thought limited to race. Harlan not only distrusted judicial interpretation of the Constitution as uncertain, he trusted in the political process to remedy what he saw as political problems. For much the same reasons, Harlan had declined to follow the court in its landmark state legislative apportionment case, Baker v. Carr (1962).
Harlan’s disagreement and frustration with the Warren Court was perhaps no more evident than in his dissent in Reynolds v. Sims, in which he denounced the notion ‘‘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.. . .’’
Harlan, the former prosecutor, refused to join the Court in many of its opinions enforcing criminal procedural rights against the states. For example, he resisted Mapp v. Ohio, which applied the exclusionary rule to the states, as over-reaching the issue presented. In matters of criminal procedure, Harlan again distinguished the Fourteenth Amendment that binds the states from the Bill of Rights that governs the federal government. The states were subject to the broad due process requirements of fundamental fairness, but the federal government was confined more closely by specific limits such as the reasonableness standard of the Fourth Amendment’s search and seizure provision.
The difficulty of labeling Harlan a conservative dissenter or opponent of civil liberty is illustrated by his dissent in Poe v. Ullman. Poe ranks as one of the most famous and influential dissents of modern times. Harlan’s opinion soon led to a decision on the contraceptives issue in Griswold v. Connecticut, and ultimately reverberated in the abortion decision in Roe v. Wade (1973). The Court’s majority declined to hear the case as not justiciable. Harlan thought the Court should face the issue created by plaintiff’s declaratory judgment actions attacking a Connecticut statute criminalizing the use of contraceptive devices.
Harlan’s Poe dissent not only typifies Harlan’s scholarly, analytical and thorough work but also exemplifies his Fourteenth Amendment jurisprudence. Harlan was not constrained by the text of the Bill of Rights in finding that the Constitution protected a right to privacy. He need only find that such a right was sufficiently historically grounded and important to liberty that it be enforced against the states via the Fourteenth Amendment. Harlan recognized that the due process guaranteed by the Constitution was not merely procedural, but also protected fundamental substantive rights.
What rankled Harlan in Poe was that Connecticut criminalized the private conduct of married couples. Intimate marital relationships were not subject to intrusion by the state, which could search, seize, and subject to public trial the private details of marital privacy. The Connecticut statute was saved neither by its rationality nor its purpose in regulating morality if it could lead to such intrusions. Given that the statute intruded upon ‘‘the privacy of the home in its most basic sense,’’ the statute could not survive the ‘‘strict scrutiny’’ to which the courts should subject it. In Poe, Harlan stands as a staunch defender of a broad concept of constitutionally protected liberty.
Harlan also sided with individual liberty when he wrote for the Court in NAACP v. Alabama. Harlan held that the Fourteenth Amendment barred the Alabama courts from fining the National Association for the Advancement of Colored People (NAACP) for refusing to surrender its membership list. The court’s order to produce the list overburdened the fundamental freedom of association.
A series of cases regarding the right to a jury trial illustrate the interplay between the Court’s approach and Harlan’s. In Duncan v. Louisiana (1968), the Court held, over Harlan’s dissent, that a state criminal defendant is entitled to a jury trial in any case which, if brought in a federal court, would require a jury under the Sixth Amendment. For Harlan, that decision made the mistake of following the incorporation doctrine. However, it established that the states must provide jury trials.
Soon after Duncan, the Court began defining the contours of the jury that states must provide. In Williams v. Florida (1970), the Court approved a sixmember jury. The Court declined to incorporate the federal standard of a jury of twelve, calling the number ‘‘a historical accident,’’ and said that the Sixth Amendment was satisfied with a jury of six.
According to Harlan, the ‘‘necessary consequence’’ was that twelve-member juries were not constitutionally required in federal criminal trials either. In other words, Harlan argued, the Court’s reluctance to strictly impose the Bill of Rights against the states via the incorporation doctrine threatened to dilute the Bill of Rights as against the federal government. It indirectly undercut the previously unquestioned federal practice of twelve-person juries to hold that the states, bound by the same Sixth Amendment that applied to the federal government, need not have twelve jurors. This was not only inconsistent, Harlan argued, it was hazardous to the Sixth Amendment.
The Court later took the matter a step further in holding that state juries need not be unanimous. In Johnson v. Louisiana (1972), the Court held that the due process clause itself did not mandate unanimity, and in Apodaca v. Oregon (1972), held that the Sixth Amendment’s incorporation by the Fourteenth Amendment in Duncan v. Louisiana, did not require that the jury’s vote be unanimous. Were Harlan still alive, he might have argued that the due process clause itself did not require unanimity, but that it threatened federal jury unanimity to hold that a state jury mandated by Sixth Amendment incorporation did not have to be unanimous. These cases revealed the Court majority to be inconsistent, not Harlan.
History cast John Marshall Harlan, like his namesake, in the role of dissenter. Even when he agreed with the Court’s decisions on civil liberties, he often set forth separate reasons. When the Court enforced the Fourteenth Amendments’s equal protection clause beyond matters of race, and applied federal criminal procedures to state proceedings via incorporation, Harlan objected. To Harlan, the equal protection clause had a core meaning and the due process clause had force independent of the Bill of Rights. He found certain liberties so essential that due process must include them, and in cases implicating those rights he held that the Constitution barred the states from infringing on them.
JEFFERSON L. LANKFORD
References and Further Reading
Cases and Statutes Cited
See also Apodaca v. Oregon, 406 U.S. 404 (1972); Brown v. Board of Education, 347 U.S. 483 (1954); Cohen v. California, 403 U.S. 15 (1971); Due Process; Duncan v. Louisiana, 391 U.S. 145 (1968); Equal Protection of Law (XIV); Frankfurter, Felix; Fourteenth Amendment; Gideon v. Wainwright, 372 U.S. 335 (1963); Griswold v. Connecticut, 381 U.S. 479 (1965); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966); Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966); NAACP v. Alabama Ex Rel. Patterson, 357 U.S. 449 (1958); O’Connor, Sandra Day; Poe v. Ullman, 367 U.S. 497 (1961); Reapportionment; Right of Privacy; Robinson v. California, 370 U.S. 660 (1962); Roe v. Wade, 410 U.S. 113 (1973); Warren Court; Warren, Earl; Yates v. United States, 354 U.S. 298 (1957)