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John Marshall Harlan II

John Marshall Harlan II served as an associate justice of the U.S. Supreme Court from 1955 to 1971. Harlan was the grandson of U.S. Supreme Court Justice JOHN MARSHALL HARLAN. He was a conservative voice during the WARREN COURT era, arguing for judicial restraint in the face of court decisions that changed the landscape of U.S. civil and CRIMINAL LAW.

Harlan was born May 20, 1899, in Chicago. His father, John Maynard Harlan, was a successful lawyer and reform Republican politician who served as a Chicago alderman. Harlan was educated at boarding schools in Canada and Princeton University. After graduating from Princeton in 1920, he attended Oxford University on a Rhodes Scholarship and studied JURISPRUDENCE.

On his return to the United States, Harlan was hired by Root, Clark, Buckner, and Howard, a prominent New York City law firm. Emory Buckner, a partner in the firm and its chief litigator, encouraged Harlan to attend law school. Harlan graduated from New York Law School in 1924 and was admitted to the bar in 1925.

At Root, Clark, Harlan worked assiduously to master the fine points of litigation. His attention to detail and careful preparation won him Buckner's admiration. In 1925, when Buckner became U.S. attorney for New York's Southern District, Harlan joined his legal staff. One of Harlan's primary duties was enforcing the National Prohibition Act (aka the VOLSTEAD ACT, 41 Stat. 305, which outlawed the possession, sale, transportation of, and importation of intoxicating liquors.

Harlan returned to Root, Clark in 1927. During the 1930s, he emerged as the law firm's top trial attorney. He became the attorney of choice for many major U.S. corporations.

During WORLD WAR II, Harlan headed the Army Air Corps's operations analysis section, which developed ways of improving the accuracy of military bombings of Germany. Following the war, he returned to his law practice.

Harlan's connections with REPUBLICAN PARTY politicians, including President DWIGHT D. EISENHOWER's attorney general, HERBERT BROWNELL JR., led to a judicial career. In 1954, Eisenhower accepted Brownell's recommendation and appointed Harlan to the U.S. Court of Appeals for the Second Circuit.

Harlan's tenure on the circuit court of appeals was unremarkable and brief. When Justice ROBERT H. JACKSON died in October 1954, Eisenhower appointed Harlan to the U.S. Supreme Court. Harlan was confirmed by the U.S. Senate in 1955.


Harlan took his seat at a time when the Supreme Court, under Chief Justice EARL WARREN,

John Marshal Harlan II.

had aroused the anger of advocates of racial segregation. The previous year, in BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), a unanimous Court had rejected the concept of "separate but equal," signaling the end of the JIM CROW LAWS that had required RACIAL DISCRIMINATION throughout the South. The decision vindicated Harlan's grandfather, who had written the lone dissent to the Supreme Court's decision in PLESSY V. FERGUSON, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), upholding an 1890 Louisiana law requiring passenger trains to provide "equal but separate" accommodations for "white and colored races."

In his first years on the Court, Harlan and Justice FELIX FRANKFURTER often voted together, counseling judicial restraint. They believed in the concepts of FEDERALISM (the division of power between the state and federal governments) and SEPARATION OF POWERS (the division of power between the legislative, executive, and judicial branches of the federal government). After Frankfurter left the Court in 1962, Harlan became the lone advocate of these concepts. As the Warren Court reshaped U.S. law, Harlan often dissented, arguing that the Court was granting too much power to the federal government and to the judicial branch.

As a conservative jurist, Harlan respected precedent. He sought to limit the reach of decisions by linking constitutional interpretation with the facts of a case. In this way, lower courts would be restrained from applying an interpretation to other contexts. This refusal to overgeneralize an interpretation led him to dissent in the ONE-PERSON, ONE-VOTE case of BAKER V. CARR, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). The majority in Baker held that the federal district court had jurisdiction to consider a claim that a state statute apportioning state legislative districts violated the plaintiffs' right to EQUAL PROTECTION guaranteed by the FOURTEENTH AMENDMENT. Noting that the majority has disregarded considerable precedent, the dis-sent asserted that the claim was a nonjusticiable POLITICAL QUESTION.

Harlan died December 29, 1971, in Washington, D.C.


Apportionment; Judicial Review.

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