Justice John Marshall Harlan

Justice John Marshall Harlan joined the U.S. Supreme Court on December 10, 1877, replacing Justice David Davis. Harlan was born on June 1, 1833 in central Kentucky. At the age of just 17, he graduated from Centre College and proceeded to study law at Transylvania University. Harlan was admitted to the bar in 1853 and entered private practice. He briefly served as a county judge in the late 1850s before unsuccessfully running for the U.S. House of Representatives.

Although he was a slave holder and opposed abolitionists, Harlan also opposed the secession of Kentucky from the Union. He served in the Union Army during the early stages of the Civil War. Leaving the army in 1863, he became Attorney General of Kentucky. Harlan served in this position for four years before returning to private practice. In the 1870s, he twice ran unsuccessfully for Kentucky Governor.

On October 16, 1877, President Rutherford B. Hayes nominated Harlan to the U.S. Supreme Court. The Senate confirmed him on November 29, and he took the judicial oath about two weeks later. Harlan would spend nearly 34 years on the Court, during which he voiced more progressive views than most of his colleagues. Many of these views prevailed after his death as the Court gradually embraced a broader understanding of civil liberties.

Harlan became known as the Great Dissenter for his fearlessness in diverging from the Court, often on his own. His most famous dissent came in Plessy v. Ferguson, in which the Court condoned the "separate but equal" theory of racial segregation. The only dissenting Justice, Harlan wrote that "our Constitution is color-blind, and neither knows nor tolerates classes among citizens." He likened Plessy to the notorious Dred Scott decision, a comparison that history has endorsed.

Harlan again stood on the right side of history when he dissented from Lochner v. New York, which epitomized an era in which the Court often struck down economic regulations on substantive due process grounds, such as the freedom to contract. The Court repudiated this decision decades later. He also dissented from the narrow interpretation of the Thirteenth and Fourteenth Amendments in the Civil Rights Cases, as well as a decision striking down a federal income tax and a decision that weakened antitrust laws.

In one of his most notable majority opinions, Harlan found that the Fifth Amendment Takings Clause should be incorporated through the Fourteenth Amendment to apply against the states. (This provides that the government must pay just compensation when taking private property.) His decision helped set a precedent for incorporating other provisions of the Bill of Rights.

Harlan died on October 14, 1911 in Washington, D.C. and was buried in Rock Creek Cemetery there. Justice Mahlon Pitney replaced him on the Court. Harlan is the only Justice so far whose descendant also served on the Supreme Court. His grandson John Marshall Harlan II was an Associate Justice from 1955 to 1971.

Selected Opinions by Justice Harlan:

Adair v. U.S. (1908)

Topic: Due Process; Labor & Employment

It is not within the power of Congress to make it a criminal offense against the United States for a carrier engaged in interstate commerce to discharge an employee simply because of their membership in a labor organization. A provision to that effect is an invasion of personal liberty and the right of property and is unenforceable under the Due Process Clause.

Jacobson v. Massachusetts (1905)

Topic: Health Care

A state may enact a compulsory vaccination law, since the legislature has the discretion to decide whether vaccination is the best way to prevent smallpox and protect public health. The legislature may exempt children from the law without violating the equal protection rights of adults if the law applies equally among adults.

Yamataya v. Fisher (1903)

Topic: Immigration & National Security

When a foreign national had notice, although not formal, of the investigation instituted for the purpose of ascertaining whether they were illegally in the country, the courts cannot interfere with the executive officers conducting it.

Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897)

Topic: Property Rights & Land Use; Due Process

A judgment of a state court, even if authorized by statute, whereby private property is taken for public use without compensation made or secured to the owner, is wanting in the due process of law required by the Fourteenth Amendment.

Santa Clara County v. Southern Pacific Railroad Co. (1886)

Topic: Taxes

An assessment of a tax is invalid and will not support an action for the recovery of the tax if it is laid on different kinds of property as a unit and includes property not legally assessable, and if the part of the tax assessed on the latter property cannot be separated from the other part of it.