John Marshall Harlan

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Lore & Background

Born in Chicago on May 20, 1899, to John Maynard Harlan, a lawyer and politician, and Elizabeth Flagg, Harlan grew up in a family steeped in public service. His grandfather was the first Justice John Marshall Harlan, his great-grandfather James Harlan was a congressman in the 1830s, and his uncle James S. Harlan served as attorney general of Puerto Rico and chairman of the Interstate Commerce Commission. After attending The Latin School of Chicago and two boarding schools in the Toronto area—Upper Canada College and Appleby College—Harlan enrolled at Princeton in 1916. There he was a member of the Ivy Club, an editor of The Daily Princetonian, and class president during his junior and senior years. Graduating in 1920 with an Artium Baccalaureus degree, he received a Rhodes Scholarship to Balliol College, Oxford, making him the first Rhodes Scholar to sit on the Supreme Court. He studied jurisprudence for three years, returning to the U.S. in 1923. He then worked at Root, Clark, Buckner & Howland while earning his LL.B. from New York Law School in 1924, gaining bar admission in 1925.

Reader's Guide

Harlan is often characterized as a member of the conservative wing of the Warren Court. He advocated a limited role for the judiciary, remarking that the Supreme Court should not be considered 'a general haven for reform movements'. He adhered more closely to precedent and was more reluctant to overturn legislation than many of his colleagues. He strongly disagreed with the doctrine of incorporation, which held that the provisions of the federal Bill of Rights applied to state governments, not merely the federal government. At the same time, he advocated a broad interpretation of the Fourteenth Amendment's Due Process Clause, arguing it protected a wide range of rights not expressly mentioned in the Constitution. He served as an Assistant U.S. Attorney from 1925 to 1927, heading the Prohibition unit and prosecuting former Attorney General Harry M. Daugherty. In 1928, as Special Assistant Attorney General of New York, he investigated a sewer-construction scandal in Queens and prosecuted borough president Maurice E. Connolly. He returned to his law firm in 1930, becoming a partner in 1931 and later the leading trial lawyer after Emory Buckner's death. Among his notable cases was defending the estate of Ella Wendel, who died in 1931 leaving an estimated $30–100 million to churches and charities; Harlan served as chief defender and negotiator until a settlement was reached in 1933. He also represented the New York Board of Higher Education in the 1940 Bertrand Russell case and boxer Gene Tunney in a settled breach-of-contract suit. In 1937, he was one of five founders of the Pioneer Fund, a eugenics advocacy group, serving on its board until 1954 without playing a significant role. During World War II, he served as a colonel in the U.S. Army Air Forces from 1943 to 1945, chief of the Operational Analysis Section of the Eighth Air Force in England, winning the Legion of Merit and the Croix de Guerre from France and Belgium. After the war, he returned to private practice, then served as Chief Counsel to the New York State Crime Commission in 1951. He was nominated to the Second Circuit by President Eisenhower in January 1954, confirmed in February, and served until March 1955. Eisenhower nominated him to the Supreme Court in January 1955 to succeed Robert H. Jackson; he was confirmed 71–11 on March 16 and sworn in on March 28, 1955. He retired on September 23, 1971, due to grave illness, and died of spinal cancer on December 29, 1971. President Nixon appointed William Rehnquist to replace him.

Did You Know?

• Harlan was the first Rhodes Scholar to serve on the Supreme Court.
• He prosecuted former U.S. Attorney General Harry M. Daugherty while heading the Prohibition unit in the Southern District of New York.
• In 1937, Harlan was one of five founders of the Pioneer Fund, a eugenics advocacy group, though he played no significant role in its activities.
• During World War II, he served as a colonel in the U.S. Army Air Forces and won the Legion of Merit and the Croix de Guerre from both France and Belgium.
• When he joined the Supreme Court, he used the same furniture that had furnished his grandfather's chambers.

A Dynasty of Public Service and a Rhodes Scholar's Path

Born in Chicago on May 20, 1899, to John Maynard Harlan, a lawyer and politician, and Elizabeth Flagg, John Marshall Harlan grew up in a family where public service was a tradition. His forebear George Harlan served as a governor of Delaware in the seventeenth century; his great-grandfather James Harlan was a congressman in the 1830s; his grandfather, also John Marshall Harlan, served on the Supreme Court from 1877 to 1911; and his uncle James S. Harlan was attorney general of Puerto Rico and then chairman of the Interstate Commerce Commission. Harlan attended The Latin School of Chicago, then two boarding high schools in the Toronto area: Upper Canada College and Appleby College. In 1916 he enrolled at Princeton University, where he was a member of the Ivy Club, served as an editor of The Daily Princetonian, and was class president during his junior and senior years. After graduating in 1920 with an Artium Baccalaureus degree, he received a Rhodes Scholarship to attend Balliol College, Oxford, making him the first Rhodes Scholar to sit on the Supreme Court. He studied jurisprudence at Oxford for three years, returning from England in 1923. Upon his return, he began work with the law firm Root, Clark, Buckner & Howland while studying law at New York Law School, receiving his LL.B. in 1924 and earning admission to the bar in 1925.

Prosecutor, Trial Lawyer, and the Cases That Defined Him

Between 1925 and 1927, Harlan served as Assistant United States Attorney for the Southern District of New York, heading the district's Prohibition unit. He prosecuted Harry M. Daugherty, the former United States Attorney General. In 1928, he was appointed Special Assistant Attorney General of New York, investigating a scandal involving sewer construction in Queens and prosecuting Maurice E. Connolly, the Queens borough president. In 1930, Harlan returned to his old law firm, becoming a partner one year later. After senior partner Emory Buckner's death, Harlan became the leading trial lawyer at the firm. One of his famous cases was the conflict over the estate of Ella Wendel, who died in 1931 with no heirs and left an estimated $30–100 million to churches and charities. A number of claimants, most of them imposters, filed suits, and Harlan acted as the main defender of her estate and will as well as the chief negotiator, with a settlement reached in 1933. In 1940, he represented the New York Board of Higher Education unsuccessfully in the Bertrand Russell case, where Russell was declared 'morally unfit' to teach at City College. He also represented boxer Gene Tunney in a breach of contract suit that was settled out of court. In 1937, Harlan was one of five founders of the Pioneer Fund, a eugenics advocacy group, serving on its board until 1954 without playing a significant role.

The Warren Court's Most Cautious Voice

President Eisenhower nominated Harlan to the Supreme Court on January 10, 1955, to succeed Justice Robert H. Jackson. On being nominated, the reticent Harlan called reporters into his chambers in New York and stated, in full, 'I am very deeply honored.' He was confirmed by the Senate on March 16, 1955, by a 71–11 vote and sworn in on March 28, 1955. On the Warren Court, Harlan is often characterized as a member of the conservative wing. He advocated a limited role for the judiciary, remarking that the Supreme Court should not be considered 'a general haven for reform movements'. He adhered more closely to precedent and was more reluctant to overturn legislation than many of his colleagues. He strongly disagreed with the doctrine of incorporation, which held that the provisions of the federal Bill of Rights applied to state governments. At the same time, he advocated a broad interpretation of the Fourteenth Amendment's Due Process Clause, arguing it protected a wide range of rights not expressly mentioned in the Constitution. He served until September 23, 1971, when he retired due to grave illness.

The Final Chapter and a Family's Long Arc

Justice Harlan was gravely ill when he retired from the Supreme Court on September 23, 1971. He died from spinal cancer three months later on December 29, 1971. After his retirement, President Richard Nixon appointed William Rehnquist to replace him. In his personal life, Harlan married Ethel Andrews on November 10, 1928, in Farmington, Connecticut. Ethel was the daughter of Yale history professor Charles McLean Andrews and had been previously married to architect Henry K. Murphy. John and Ethel had one daughter, Evangeline, born on February 2, 1932. Harlan, a Presbyterian, maintained a New York City apartment, a summer home in Weston, Connecticut, and a fishing camp in Murray Bay, Quebec, a lifestyle he described as 'awfully tame and correct'. He played golf, favored tweeds, and wore a gold watch that had belonged to the first Justice Harlan. When he joined the Supreme Court, he used the same furniture that had furnished his grandfather's chambers. His family's long arc in American public life stretched from a seventeenth-century Delaware governor through a congressional great-grandfather, a Supreme Court justice grandfather, and a Puerto Rico attorney general uncle.