John Marshall Harlan II

The Supreme Court decided several important equal protection cases during the first years of Harlan's career. In these cases, Harlan regularly voted in favor of civil rights—similar to his grandfather, the only dissenting justice in the infamous Plessy v. Ferguson case.[36]

He voted with the majority in Cooper v. Aaron,[37] compelling defiant officials in Arkansas to desegregate public schools. He joined the opinion in Gomillion v. Lightfoot,[38] which declared that states could not redraw political boundaries in order to reduce the voting power of African-Americans. Moreover, he joined the unanimous decision in Loving v. Virginia,[39] which struck down state laws that banned interracial marriage.

Justice Harlan advocated a broad interpretation of the Fourteenth Amendment's Due Process Clause. He subscribed to the doctrine that the clause not only provided procedural guarantees, but also protected a wide range of fundamental rights, including those that were not specifically mentioned in the text of the Constitution.[40] (See substantive due process.) However, as Justice Byron White noted in his dissenting opinion in Moore v. East Cleveland, "no one was more sensitive than Mr. Justice Harlan to any suggestion that his approach to the Due Process Clause would lead to judges 'roaming at large in the constitutional field'."[41] Under Harlan's approach, judges would be limited in the Due Process area by "respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms".[42]

Harlan set forth his interpretation in an often cited dissenting opinion to Poe v. Ullman,[43] which involved a challenge to a Connecticut law banning the use of contraceptives. The Supreme Court dismissed the case on technical grounds, holding that the case was not ripe for adjudication. Justice Harlan dissented from the dismissal, suggesting that the Court should have considered the merits of the case. Thereafter, he indicated his support for a broad view of the due process clause's reference to "liberty". He wrote, "This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."[43] He suggested that the due process clause encompassed a right to privacy, and concluded that a prohibition on contraception violated this right.[44]

The same law was challenged again in Griswold v. Connecticut.[42] This time, the Supreme Court agreed to consider the case, and concluded that the law violated the Constitution. However, the decision was based not on the due process clause, but on the argument that a right to privacy was found in the "penumbras" of other provisions of the Bill of Rights. Justice Harlan concurred in the result, but criticized the Court for relying on the Bill of Rights in reaching its decision. "The Due Process Clause of the Fourteenth Amendment stands," he wrote, "on its own bottom."[42] The Supreme Court would later adopt Harlan's approach, relying on the due process clause rather than the penumbras of the Bill of Rights in right to privacy cases such as Roe v. Wade[45] and Lawrence v. Texas.[46]

Harlan's interpretation of the Due Process Clause attracted the criticism of Justice Black, who rejected the idea that the Clause included a "substantive" component, considering this interpretation unjustifiably broad and historically unsound, one of the few issues in which Black was more conservative than Harlan. The Supreme Court has agreed with Harlan, and has continued to apply the doctrine of substantive due process in a wide variety of cases.[3]

Justice Harlan was strongly opposed to the theory that the Fourteenth Amendment "incorporated" the Bill of Rights—that is, made the provisions of the Bill of Rights applicable to the states.[47] His opinion on the matter was opposite to that of his grandfather, who supported the full incorporation of the Bill of Rights.[48] When it was originally ratified, the Bill of Rights was binding only upon the federal government, as the Supreme Court ruled in the 1833 case Barron v. Baltimore.[49] Some jurists argued that the Fourteenth Amendment made the entirety of the Bill of Rights binding upon the states as well. Harlan, however, rejected this doctrine, which he called "historically unfounded" in his Griswold concurrence.[42]

Instead, Justice Harlan believed that the Fourteenth Amendment's due process clause only protected "fundamental" rights. Thus, if a guarantee of the Bill of Rights was "fundamental" or "implicit in the concept of ordered liberty," Harlan agreed that it applied to the states as well as the federal government.[4] Thus, for example, Harlan believed that the First Amendment's free speech clause applied to the states,[50] but that the Fifth Amendment's self-incrimination clause did not.[4]

Harlan's approach was largely similar to that of Justices Benjamin Cardozo and Felix Frankfurter.[4] It drew criticism from Justice Black, a proponent of the total incorporation theory.[1] Black claimed that the process of identifying some rights as more "fundamental" than others was largely arbitrary, and depended on each Justice's personal opinions.[28]

The Supreme Court has eventually adopted some elements of Harlan's approach, holding that only some Bill of Rights guarantees were applicable against the states—the doctrine known as selective incorporation. However, under Chief Justice Earl Warren during the 1960s, an increasing number of rights were deemed sufficiently fundamental for incorporation (Harlan regularly dissented from these rulings). Hence, the majority of provisions from the Bill of Rights have been extended to the states; the exceptions are the Third Amendment, the grand jury clause of the Fifth Amendment, the Seventh Amendment, the Ninth Amendment, and the Tenth Amendment. Thus, although the Supreme Court has agreed with Harlan's general reasoning, the end result of its jurisprudence is very different from what Harlan advocated.[47]

Justice Harlan supported many of the Warren Court's landmark decisions relating to the separation of church and state. For instance, he voted in favor of the Court's ruling that the states could not use religious tests as qualifications for public office in Torcaso v. Watkins.[51] He joined in Engel v. Vitale,[52] which declared that it was unconstitutional for states to require the recitation of official prayers in public schools. In Epperson v. Arkansas,[53] he similarly voted to strike down an Arkansas law banning the teaching of evolution.

In many cases, Harlan took a fairly broad view of First Amendment rights such as the freedom of speech and of the press, although he thought that the First Amendment applied directly only to the federal government.[50] According to Harlan the freedom of speech was among the "fundamental principles of liberty and justice" and therefore applicable also to states, but less stringently than to the national government. Moreover, Justice Harlan believed that federal laws censoring "obscene" publications violated the free speech clause.[50] Thus, he dissented from Roth v. United States,[54] in which the Supreme Court upheld the validity of a federal obscenity law. At the same time, Harlan did not believe that the Constitution prevented the states from censoring obscenity.[55] He explained in his Roth dissent:

The danger is perhaps not great if the people of one State, through their legislature, decide that Lady Chatterley's Lover goes so far beyond the acceptable standards of candor that it will be deemed offensive and non-sellable, for the State next door is still free to make its own choice. At least we do not have one uniform standard. But the dangers to free thought and expression are truly great if the Federal Government imposes a blanket ban over the Nation on such a book. ... The fact that the people of one State cannot read some of the works of D. H. Lawrence seems to me, if not wise or desirable, at least acceptable. But that no person in the United States should be allowed to do so seems to me to be intolerable, and violative of both the letter and spirit of the First Amendment.[54]

Harlan concurred in New York Times Co. v. Sullivan,[56] which required public officials suing newspapers for libel to prove that the publisher had acted with "actual malice." This stringent standard made it much more difficult for public officials to win libel cases. He did not, however, go as far as Justices Hugo Black and William O. Douglas, who suggested that all libel laws were unconstitutional. In Street v. New York,[57] Harlan wrote the opinion of the court, ruling that the government could not punish an individual for insulting the American flag. In 1969 he noted that the Supreme Court had consistently "rejected all manner of prior restraint on publication."[58]

When Harlan was a Circuit Judge in 1955,[59] he authorized the decision upholding the conviction of leaders of the Communist Party USA (including Elizabeth Gurley Flynn) under the Smith Act. The ruling was based on the previous Supreme Court's decisions, by which the Court of Appeals was bound. Later, when he was a Supreme Court justice, Harlan, however, wrote an opinion overturning the conviction of Communist Party activists as unconstitutional in the case of Yates v. United States.[60] Another such case was Watkins v. United States.[61]

Harlan penned the majority opinion in Cohen v. California,[62] holding that wearing a jacket emblazoned with the words "Fuck the Draft" was speech protected by the First Amendment. His opinion was later described by constitutional law expert Professor Yale Kamisar as one of the greatest ever written on freedom of expression.[9] In the Cohen opinion, Harlan famously wrote "one man's vulgarity is another's lyric," a quote that was later denounced by Robert Bork as "moral relativism".[63]

Justice Harlan is credited for establishing that the First Amendment protects the freedom of association.[50] In NAACP v. Alabama,[64] Justice Harlan delivered the opinion of the court, invalidating an Alabama law that required the NAACP to disclose membership lists.[50] However he did not believe that individuals were entitled to exercise their First Amendment rights wherever they pleased. He joined in Adderley v. Florida,[65] which controversially upheld a trespassing conviction for protesters who demonstrated on government property. He dissented from Brown v. Louisiana,[66] in which the Court held that protesters were entitled to engage in a sit-in at a public library. Likewise, he disagreed with Tinker v. Des Moines,[67] in which the Supreme Court ruled that students had the right to wear armbands (as a form of protest) in public schools.

During the 1960s the Warren Court made a series of rulings expanding the rights of criminal defendants. In some instances, Justice Harlan concurred in the result,[68] while in many other cases he found himself in dissent. Harlan was usually joined by the other moderate members of the Court: Justices Potter Stewart, Tom Clark, and Byron White.[4]

Most notably, Harlan dissented from Supreme Court rulings restricting interrogation techniques used by law enforcement officers. For example, he dissented from the Court's holding in Escobedo v. Illinois,[69] that the police could not refuse to honor a suspect's request to consult with his lawyer during an interrogation. Harlan called the rule "ill-conceived" and suggested that it "unjustifiably fetters perfectly legitimate methods of criminal law enforcement." He disagreed with Miranda v. Arizona,[70] which required law enforcement officials to warn a suspect of his rights before questioning him (see Miranda warning). He closed his dissenting opinion with a quotation from his predecessor, Justice Robert H. Jackson: "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."[70]

In Gideon v. Wainwright,[68] Justice Harlan agreed that the Constitution required states to provide attorneys for defendants who could not afford their own counsel. However, he believed that this requirement applied only at trial, and not on appeal; thus, he dissented from Douglas v. California.[71]

Harlan wrote the majority opinion in Leary v. United States—a case that declared the Marijuana Tax Act unconstitutional based on the Fifth Amendment protection against self-incrimination.[72]

Justice Harlan's concurrence in Katz v. United States[73] set forth the test for determining whether government conduct constituted a search. In this case the Supreme Court held that eavesdropping on the petitioner's telephone conversation constituted a search in the meaning of the Fourth Amendment and thus required a warrant.[4] According to Justice Harlan, there is a two-part requirement for a search: (1) that the individual have a subjective expectation of privacy; and (2) that the individual's expectation of privacy is "one that society is prepared to recognize as 'reasonable.'"[73]

Justice Harlan rejected the theory that the Constitution enshrined the so-called "one man, one vote" principle, or the principle that legislative districts must be roughly equal in population.[74] In this regard, he shared the views of Justice Felix Frankfurter, who in Colegrove v. Green[75] admonished the courts to stay out of the "political thicket" of reapportionment. The Supreme Court, however, disagreed with Harlan in a series of rulings during the 1960s. The first case in this line of rulings was Baker v. Carr.[76] The Court ruled that the courts had jurisdiction over malapportionment issues and therefore were entitled to review the validity of district boundaries. Harlan, however, dissented, on the grounds that the plaintiffs failed to demonstrate that malapportionment violated their individual rights.[76]

Then, in Wesberry v. Sanders,[77] the Supreme Court, relying on the Constitution's requirement that the United States House of Representatives be elected "by the People of the several States," ruled that congressional districts in any particular state must be approximately equal in population. Harlan vigorously dissented, writing, "I had not expected to witness the day when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives. It is not an exaggeration to say that such is the effect of today's decision."[77] He proceeded to argue that the Court's decision was inconsistent with both the history and text of the Constitution; moreover, he claimed that only Congress, not the judiciary, had the power to require congressional districts with equal populations.[74]

Harlan was the sole dissenter in Reynolds v. Sims,[32] in which the Court relied on the Equal Protection Clause to extend the one man, one vote principle to state legislative districts. He analyzed the language and history of the Fourteenth Amendment, and concluded that the Equal Protection Clause was never intended to encompass voting rights. Because the Fifteenth Amendment would have been superfluous if the Fourteenth Amendment (the basis of the reapportionment decisions) had conferred a general right to vote, he claimed that the Constitution did not require states to adhere to the one man, one vote principle, and that the Court was merely imposing its own political theories on the nation. He suggested, in addition, that the problem of malapportionment was one that should be solved by the political process, and not by litigation. He wrote:

This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court, in reality, substitutes its view of what should be so for the amending process.[32]

For similar reasons, Harlan dissented from Carrington v. Rash,[78] in which the Court held that voter qualifications were subject to scrutiny under the equal protection clause. He claimed in his dissent, "the Court totally ignores, as it did in last Term's reapportionment cases ... all the history of the Fourteenth Amendment and the course of judicial decisions which together plainly show that the Equal Protection Clause was not intended to touch state electoral matters."[78] Similarly, Justice Harlan disagreed with the Court's ruling in Harper v. Virginia Board of Elections,[79] invalidating the use of the poll tax as a qualification to vote.