John Marshall Harlan II

John Marshall Harlan II
Born	John Marshall Harlan 5/20/1899
Birthplace	Chicago, Illinois, U.S.
Died	12/29/1971 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. 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.

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. 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."

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.

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.

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