Justice John Marshall Harlan (II)
Today’s Justice of the Day is: JOHN MARSHALL HARLAN (II). The second Justice Harlan was born on this day, May 20, in 1899.
Justice Harlan was born in Chicago, the namesake and grandson of the first Justice John Marshall Harlan. He was educated at Princeton University (earning an A.B. in 1920) and was a Rhodes Scholar at Balliol College of the University of Oxford, before moving on to New York Law School, which he graduated from with an LL.B. in 1924.
Immediately upon graduation, Justice Harlan entered private practice in New York City, New York, working from then to 1925 (he would return to work as a private attorney in that city in 1927, from 1931 to 1943, and from 1945 to 1954). His early career in public service included serving as an assistant United States Attorney for the Southern District of New York (from 1925-1926), and later as a Special Assistant to New York’s Attorney General (1928-1930). Justice Harlan was also an officer with the United States Air Force during the Second World War (specifically from 1943 to 1945), serving as Chief of the Operations Analysis Section. He became Chief Counsel to the New York State Crime Commission in 1951, remaining there until 1953, the year before he was appointed a Judge of the United States Court of Appeals for the Second Circuit by President Dwight D. Eisenhower, an office he would hold (briefly) until his elevation to the SCUS.
Justice Harlan was nominated by President Dwight D. Eisenhower on January 10, 1955 (he had also been nominated on November 9, 1954, but no vote of the United States Senate was taken), to a seat vacated by Justice Robert H. Jackson. He was confirmed by the U.S. Senate on March 16, 1955, and received his commission the following day. Justice Harlan took the Judicial Oath to officially join the SCUS on March 28, and served his tenure on the Warren and Burger Courts. He assumed senior status on September 23, 1971, and his service was terminated on December 29, due to his death.
Justice Harlan, like his grandfather before him, developed a reputation as a “Great Dissenter” while on the SCUS. In his case, he became known for disagreeing with many Warren Court decisions that were (and sometimes still are) derided as overly-liberal and activist in nature by many conservatives. Justice Harlan did not oppose all of his left-leaning colleagues’ views however, and even concurred in the judgment in what was seen (and still is seen by some) as the most radical decision handed down while he was serving with Chief Justice Earl Warren, Griswold v. Connecticut (1965), wherein the opinion of the Court found that the Constitution’s Bill of Rights contained penumbras emanating from the First, Third, Fourth, and Ninth Amendments that collectively protected a right to marital privacy, invalidating laws banning contraception, such as the one at issue; Justice Harlan disagreed with the reasoning of the majority, instead opting to strike down Connecticut’s law on the basis of the Due Process Clause of the Fourteenth Amendment on its own.