HARLAN, JOHN MARSHALL (1899–1971)

John Marshall Harlan, grandson of the Justice of the same name, served as Associate Justice of the United States Supreme Court from 1955 to 1971. Educated principally at Princeton and Oxford, he enjoyed a highly successful career as a New York trial lawyer, with intervals for military service and in various public positions. Immediately prior to his appointment to the Supreme Court he served briefly on the United States Court of Appeals for the Second Circuit. His work on the Supreme Court was marked by rigorous intellectual honesty, unflagging industry, and an uncommon dedication to judicial craftsmanship. No Justice sought more earnestly to evaluate fairly every relevant fact and authority, and none labored more carefully to decide, not policies or causes, but actual and concrete cases. In the "measured" assessment of Judge Henry Friendly, no other Justice has "so consistently maintained a high quality of performance" or has enjoyed "so nearly uniform respect."

Influenced in his first years on the Court by felix frankfurter, Harlan ultimately developed a constitutional philosophy distinctly his own. He combined dignity with an attractive modesty, personal qualities that were reflected in his conception of the judicial function. In reynolds v. sims (1964) he emphasized that the Constitution required a "diffusion of governmental authority" within which the Court was assigned a "high" but "limited" function. Rigidly nonpolitical after his appointment to the bench, he believed that the Court could effectively perform its "limited" constitutional role only by studiously respecting the powers variously entrusted to the states, Congress, or the federal executive. He denied that courts are entitled to promote or compel reform whenever others fail to act, and warned that judges should not seek solutions to every social ill in the Constitution.

More than any Justice in recent years, Harlan regarded federalism as an important limitation upon the Court's authority. He believed, with Justice louis d. brandeis, that the states could serve as laboratories for the solution of social and political issues, and he willingly afforded them freedom to seek such solutions. In fay v. noia (1963), miranda v. arizona (1966), and other cases he resisted the Court's imposition of federal standards upon the conduct of state criminal proceedings, arguing in Fay that the federal system would "exist in substance as well as form" only if the states were permitted, within the limits of fundamental fairness, to devise their own procedures. In harper v. virginia board of elections (1966) he dissented from the Court's invalidation of a state's use of a poll tax as a condition on voting, despite his obvious doubts as to the law's wisdom, in part because the issue should be left for decision by the state itself. In roth v. united states (1957) he urged that the states be permitted greater leeway than the federal government to control "borderline" pornography because the risks of nationwide censorship were "far greater." Because the Court could not devise clear rules for regulating obscenity, he saw "no overwhelming danger" if the states were given room to seek their own answers.

Harlan's federalism did not, however, prevent him in appropriate cases from denying the constitutionality of state legislation. In Poe v. Ullman (1961) he wrote one of the most important of his opinions, dissenting from the Court's refusal to decide a challenge to a Connecticut statute prohibiting the use of contraceptive devices. Observing that the statute intruded upon "the most intimate details of the marital relation" in order to enforce "a moral judgment," Harlan declared marital privacy to be a "most fundamental" right, any invasion of which requires strict scrutiny. He defined due process in terms of evolving national traditions and the balance between "liberty and the demands of organized society," and concluded on that basis that the statute was unconstitutional. Four years later, in griswold v. connecticut (1965), a majority of the Court reached the same result.

One of the issues most revealing of Harlan's constitutional outlook was the incorporation doctrine, by which large portions of the bill of rights have been held applicable to the states through "incorporation" in the fourteenth amendment. Harlan vigorously resisted both the "total" incorporation theory advanced by Justice hugo l. black and the "selective" version adopted by other Justices. In pointer v. texas (1965), duncan v. louisiana (1968), and other cases he argued that the doctrine lacks historical basis and creates a "constitutional straitjacket" that risks preventing the states from responding to the nation's "increasing experience and evolving conscience." He preferred to test state legislation and procedures by a standard of fundamental fairness derived from the due process clause of the Fourteenth Amendment, whose generality affords room for future constitutional development. Indeed, in Griswold he expressed the fear that the incorporation doctrine might "restrict" the reach of the due process clause, limiting the Court's review of future state actions.

Due process formed the heart of Harlan's constitutional outlook, and two cases illustrate both the breadth of his conception and the restraint with which he employed it. In boddie v. connecticut (1971) Harlan held for the Court that filing and service fees imposed by the state upon persons seeking divorce were denials of due process when applied to indigents. Carefully avoiding reliance upon the equal protection clause, whose scope and implications he evidently distrusted, he held that as a matter of fundamental fairness a state could not preempt the right to dissolve marriages unless all its citizens were afforded access to the mechanism prescribed for that purpose. The opinion provoked Justice Black in dissent to reiterate that Harlan's conception of due process permitted judges to determine constitutionality merely by their "sense of fairness." Quoting Williams v. North Carolina (1945), Black added that due process afforded judges "a blank sheet of paper" on which to order constitutional change.

The deaths of the two close friends prevented Harlan and Black from continuing their debate after Boddie, but part of Harlan's response may be inferred from in re gault (1967), in which the Court first addressed the constitutional issues presented by state systems of juvenile justice. Such systems often imposed penalties similar to those in criminal cases without the accompanying procedural protections. Harlan's concurring opinion emphasized the novelty of the questions, and urged caution in imposing detailed constitutional requirements. He feared that the hasty adoption of rigid standards might "hamper enlightened development," and found room in the spacious contours of due process to impose only selected procedural requirements. Harlan's caution illustrated his conviction, previously expressed in Poe v. Ullman, that the discretion afforded judges by the due process clause must be exercised with "judgment and restraint."

Harlan also made significant contributions to the development of first amendment principles. In cohen v. california (1971) he wrote the opinion for a divided Court overturning the conviction of a man wearing a jacket bearing an antidraft expletive in the halls of a Los Angeles courthouse. Although the protest's form was "distasteful," Harlan explained that "fundamental societal values" are implicated even in "crude" exercises of First Amendment rights. In ginzburg v. united states (1966), he dissented from the affirmance of a federal obscenity conviction in which the Court held that evidence of "commercial exploitation" could tip the balance toward a determination that a publication was obscene. Harlan responded that the Court, by "judicial improvisation," had created a new and impermissibly vague statutory standard, under which "pandering" could justify the censorship of otherwise protected materials. In contrast to his less rigid attitude toward state obscenity prosecutions, he argued that the federal government should be permitted to ban from the mails only hard-core pornography.

The concern for privacy interests expressed in Poe v. Ullman was also reflected in Harlan's First Amendment opinions. In naacp v. alabama (1958) he wrote the Court's opinion overturning an order holding the NAACP in civil contempt for failing to reveal the names of its members and agents in Alabama. He found that such disclosures had previously resulted in threats and reprisals, and explained the "vital relationship" between organizational privacy and freedom of association. Because the contempt order would adversely affect the NAACP's ability to foster beliefs it was constitutionally entitled to advocate, the association's privacy interests overrode the state's regulatory goals. In Time, Inc. v. Hill (1967) he argued that where private individuals had by misadventure become involuntary subjects of publicity, the state could constitutionally require the press to conduct a reasonable investigation and to limit itself to fair comment upon the facts. The denial of such state authority, he contended, would create a "severe risk of irremediable harm" to those who had not sought public exposure and were "powerless to protect themselves against it."

Harlan's contributions to constitutional law are not fully measured by the opinions he wrote or conclusions he reached. Time and again, his prodding compelled the Court to revise or reconsider its first assessment of a fact or an issue, drawing from others a higher quality of performance than they might otherwise have achieved. No Justice labored more earnestly to act with care and fairness, and none adhered to a more rigorous standard of judicial integrity. His reassuring example of craftsmanship and rectitude meant much in a period of rapid constitutional change, when the Court and its members were frequently the subject of hostility or question.

Charles Lister
(1986)

Bibliography

Dorsen, Norman 1969 John Marshall Harlan. Pages 2803–2820 in Leon Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court 1789–1969. New York: Chelsea House.

Friendly, Henry J. 1971 Mr. Justice Harlan, as Seen by a Friend and Judge of an Inferior Court. Harvard Law Review 85:382–389.

Shapiro, David L. 1969 The Evolution of a Judicial Philosophy: Selected Opinions and Papers of Justice John M. Harlan. Cambridge, Mass.: Harvard University Press.