John Marshall Harlan II was born on May 20, 1899 in Chicago, Illinois. He was one of four children born to John Maynard Harlan and Elizabeth Flagg. Harlan’s father was a successful attorney who was active in Illinois politics. The future United States Supreme Court Justice was born into a wealthy family that had been politically active for generations. His grandfather, John Marshall Harlan, served on the United States Supreme Court from 1877 until 1911.
As a child, Harlan attended the prestigious Latin School of Chicago. He completed his secondary education at a series of boarding schools in Canada. Harlan matriculated at Princeton University in Princeton, New Jersey in 1916. While at Princeton, Harlan joined the Ivy Club and edited the Daily Princetonian student newspaper. Harlan’s peers at Princeton elected him class president during his junior and senior years. He graduated from Princeton in 1920.
After graduation, Harlan moved to the United Kingdom to study jurisprudence at Balliol College, Oxford as a Rhodes Scholar. He studied at Oxford for three years before returning to the United States to continue his legal education. In 1923, Harlan enrolled in law school at New York Law School. He graduated with an L.L.B. in 1924 and was admitted to the New York State Bar in 1925.
Immediately after law school, Harlan began working at the Office of the United States Attorney for the Southern District of New York prosecuting crimes in the Prohibition Unit. In 1928, he left the U.S. Attorney’s office and became a Special Assistant Attorney General of New York. During his tenure as a Special Assistant Attorney General, he gained fame for his probe into a sewer project in Queens and his subsequent prosecution of the Queens borough president that resulted from the findings of the inquiry. Harlan left the public sector and entered private practice in 1930 at the law firm of Root, Clark, Buckner & Howland.
Harlan volunteered for the United States Army Air Force during World War II and was commissioned as a colonel. Stationed in the United Kingdom, he served as the Chief of the Operational Analysis Section of the Eighth Air Force from 1943 until 1945. His wartime contributions earned him the United States Legion of Merit Commendation and the Croix de Guerre from France and Belgium.
After the war, Harlan returned to private practice. In 1951, he left the private sector and began working as Chief Counsel to the New York State Crime Commission. At the New York State Crime Commission, he investigated illegal gambling operations and state government ties to organized crime.
President Dwight Eisenhower nominated Harlan to fill an empty position on the United States Court of Appeals for the Second Circuit on January 13, 1954. The United States Senate confirmed his appointment on February 9, 1954.
On October 9, 1954, United States Supreme Court Justice Robert H. Jackson died leaving a seat vacant on the highest court in the land. President Eisenhower nominated Harlan for the United States Supreme Court on January 10, 1955. Harlan had exactly one year of judicial experience at the time of his nomination.
Harlan’s nomination came during a fraught period of United States history and Supreme Court jurisprudence. The Court had just handed down Brown v. Board of Education and the South was in turmoil over the Civil Rights movement. In an unusual move for the time, Harlan appeared before the Senate Judiciary Committee prior to his Senate confirmation vote to respond to questions about his judicial views. The head of the United States Senate Committee on the Judiciary, James Eastland, and a number of senators from Southern states delayed Harlan’s nomination out of concern he would support desegregation efforts and civil rights legislation if confirmed to the Supreme Court. In spite of the delay, on March 17, 1955, the Senate voted to confirm Harlan to the Supreme Court by a vote of 71-11.
Harlan’s Supreme Court jurisprudence is highly rooted in the individual facts of each case. His legal thinking takes the concept of stare decisis seriously without falling prey to the intellectual reductionism of originalism. Throughout his career he resolutely maintained courts should limit their interference with social questions best left to the political process.
During Harlan’s years on the Supreme Court he consistently supported the application of the Equal Protection Clause in civil rights cases. He voted with the majority in Loving v. Virginia, striking down the state of Virginia’s ban on interracial marriage. He voted in favor of forcing Arkansas to desegregate public schools in Cooper v. Aaron.
Harlan’s interpretation of the Due Process Clause as allowing for robust protection of rights not specifically elucidated in the Constitution fundamentally shifted the landscape of constitutional jurisprudence. He strenuously advocated for the legal theory on which the substantive due process right to privacy rests. It was based on this concept that such landmark cases as Roe v. Wade and Lawrence v. Texas were decided.
Harlan was a strong supporter of the First Amendment while on the Supreme Court. In Engel v. Vitale he voted against permitting public schools to open the day with mandated prayer.
Harlan did not support the expansion of criminal defendants’ rights. He dissented in the landmark Miranda v. Arizona case which held that criminal suspects must be advised of their rights before interrogation by law enforcement officials. In Douglas v. California he argued the right to counsel guaranteed by Gideon v. Wainright did not apply to criminal defendants seeking an appeal.
Harlan did not believe the Court should be involved in resolving questions of legislative districting, arguing these issues should be decided by the political process.
Suffering from declining health and weakening eyesight, Harlan retired from the Supreme Court on September 23, 1971. William Rehnquist replaced Harlan on the Court.
On December 29, 1971, three months after retiring from the Court, Harlan died of spinal cancer in Washington, DC. Princeton University’s Seeley G. Mudd Manuscript Library owns Harlan’s collected Supreme Court papers.
Harlan married Ethel Andrews, the daughter of a history professor at Yale, in 1928. The couple had one child, Evangeline, born in 1932.