Justice John Marshall Harlan II
Justice John Marshall Harlan II joined the U.S. Supreme Court on March 28, 1955, replacing Justice Robert H. Jackson. Harlan was born on May 20, 1899 in Chicago, Illinois. His grandfather John Marshall Harlan served as a Supreme Court Justice between 1877 and 1911. Harlan II graduated from Princeton University in 1920 and then attended the University of Oxford in the United Kingdom on a Rhodes Scholarship. He received his law degree from New York Law School in 1924.
After some early experience as a prosecutor in the New York City area, Harlan entered private practice in 1930. He served in the U.S. Air Force during the Second World War, earning the Legion of Merit. Harlan spent several years after the war in private practice but became Chief Counsel to the New York State Crime Commission in 1951. President Dwight Eisenhower nominated him to the U.S. Court of Appeals for the Second Circuit in January 1954. The Senate confirmed Harlan a month later, but he would spend only a year on the Second Circuit.
On January 10, 1955, Eisenhower nominated Harlan to the U.S. Supreme Court. The Senate confirmed him on March 16 in a 71-11 vote, and he took the judicial oath about two weeks later. His tenure on the Court coincided largely with the activist era of Chief Justice Earl Warren, yet Harlan sometimes took a more moderate view than his colleagues. For example, he dissented from the landmark decision in Miranda v. Arizona, which established the standard warnings that police must provide to suspects. Harlan also dissented from cases in which the Court followed the "one person, one vote" principle in holding that electoral districts for the U.S. House of Representatives and state legislatures must have roughly equal populations.
Harlan often voiced a robust view of the First Amendment. He joined the majority in Engel v. Vitale, which struck down school-sponsored prayer in public schools, and he wrote for the Court in Cohen v. California, holding that the Free Speech Clause protected a person who wore a shirt with the words "F— the Draft" in public. However, he dissented when the Court ruled that public school students had a right to wear black armbands to protest the Vietnam War.
Harlan wrote two notable concurrences involving privacy issues. In a concurrence in Katz v. U.S., Harlan outlined the "reasonable expectation of privacy" test for Fourth Amendment challenges to law enforcement searches and seizures. Meanwhile, his concurrence in Griswold v. Connecticut argued that the Due Process Clause of the Fourteenth Amendment independently supports a right to privacy without a need to infer this right from the Bill of Rights. The Court eventually came to endorse this theory.
Harlan retired from the Supreme Court on September 23, 1971 and was replaced by Justice William Rehnquist. He died three months after his retirement on December 29, 1971 in Washington, D.C. and was buried in Connecticut.
Selected Opinions by Justice Harlan:Cohen v. California (1971)
Topic: Free Speech
A state could not make the simple public display of a single four-letter expletive a criminal offense.
Adickes v. S.H. Kress & Co. (1970)
Topic: Lawsuits & Legal Procedures
A party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact. For these purposes, the material submitted by the moving party must be viewed in the light most favorable to the opposing party.
Spinelli v. U.S. (1969)
Topic: Search & Seizure
A tip was inadequate to provide the basis for a finding of probable cause that a crime was being committed when it did not set forth any reason to support the conclusion that the informant was reliable and did not sufficiently state the underlying circumstances from which the informant drew their conclusions or sufficiently detail the defendant’s activities.
Marchetti v. U.S. (1968)
Topic: Government Agencies
The required records doctrine under Shapiro does not apply when a party was not obliged to keep and preserve records of the same kind as they have customarily kept, there are no public aspects to the information, and the requirements are directed to a selective group inherently suspect of criminal activities.
Abbott Laboratories v. Gardner (1967)
Topic: Government Agencies
Courts should restrict access to judicial review of an agency regulation only upon a showing of clear and convincing evidence of a contrary legislative intent. Also, ripeness requires a court to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. When the legal issue presented is fit for judicial resolution, and when a regulation requires an immediate and significant change in the plaintiff’s conduct of their affairs with serious penalties attached to non-compliance, access to the courts generally must be permitted.
Curtis Publishing Co. v. Butts (1967)
Topic: Free Speech
A public figure who is not a public official may recover damages for defamatory falsehood substantially endangering their reputation on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily maintained by responsible publishers. (In a concurrence, Justice Warren advised applying the New York Times standard.)
U.S. v. Gilmore (1963)
The origin and character of the claim with respect to which an expense was incurred, rather than its potential consequences on the fortunes of the taxpayer, is the controlling basic test of whether the expense was business or personal, and thus whether it is deductible under Section 23(a)(2) of the Internal Revenue Code.
Commissioner v. Gillette Motor Transport, Inc. (1960)
When a trucking company received compensation from the government for the fair rental value of its facilities during a period when they were controlled by the government, this was ordinary income rather than a capital gain that resulted from an involuntary conversion of capital assets consisting of real or depreciable personal property used in its trade or business.
Flemming v. Nestor (1960)
Topic: Due Process
Particularly when dealing with a withholding of a non-contractual benefit under a social welfare program, the Due Process Clause interposes a bar only if the statute manifests a patently arbitrary classification, utterly lacking rational justification.