John Marshall Harlan II was born in Chicago in 1899, the grandson and namesake of the first Justice Harlan (§44), the 'Great Dissenter.' A Rhodes Scholar and distinguished Wall Street lawyer, he was, like his grandfather, a man of the establishment — but where the elder Harlan had been a fiery dissenter for civil rights, the younger became the intellectual leader of the Court's conservative wing and the great modern voice of judicial restraint. President Eisenhower named him in 1955, and he served sixteen years as the principal counterweight to the Warren Court's liberal majority.
Harlan was a craftsman's craftsman — careful, principled, and respected across ideological lines even by those he consistently opposed. The heir to Frankfurter's (§78) philosophy of restraint, he urged deference to the democratic branches and to the states, and dissented from many of the Warren Court's boldest strokes. Yet he was no reflexive conservative: in his Poe v. Ullman dissent he set out a rich theory of 'liberty' as a 'rational continuum,' laying groundwork the Court would use to protect privacy and personal autonomy. And he was a firm defender of free expression, writing Cohen v. California — the 'Fuck the Draft' jacket case — with its enduring line that 'one man's vulgarity is another's lyric.' Nearly blind by the end, he retired in 1971 and died months later.
Cohen v. California
1971Holding · A state may not punish the wearing of a jacket bearing an offensive antiwar slogan; 'one man's vulgarity is another's lyric.'
Role · Harlan wrote for the Court.
A cornerstone of free-speech law, protecting offensive and emotive expression from government censorship.
Read the opinion →NAACP v. Alabama
1958Holding · The state may not compel the NAACP to disclose its membership lists; freedom of association is protected by the First and Fourteenth Amendments.
Role · Harlan wrote for a unanimous Court.
Established the constitutional freedom of association, shielding civil-rights and other groups from state harassment.
Read the opinion →Poe v. Ullman
1961Holding · (Dissenting) The Constitution's guarantee of 'liberty' is a 'rational continuum' protecting intimate personal decisions, including a married couple's use of contraceptives.
Role · Harlan dissented from the Court's refusal to reach the merits.
The intellectual foundation of the right to privacy soon adopted in Griswold (1965, Douglas §79), and a touchstone of substantive due process.
Read the opinion →John Marshall Harlan II is the conservative conscience of the Warren Court, and the grandson and namesake of the first Justice Harlan (§44) — the only grandfather-and-grandson pair in the Court's history. A polished Wall Street lawyer and Rhodes Scholar named by Eisenhower in 1955, he became the intellectual leader of the Court's right, the great dissenter who resisted the Warren revolution in the name of judicial restraint, federalism, and respect for precedent. Yet he was no reflexive reactionary: he wrote Cohen v. California, protecting a jacket that read 'Fuck the Draft' with the observation that 'one man's vulgarity is another's lyric,' and his dissent in Poe v. Ullman — arguing that liberty is a 'rational continuum' — became a foundation of the modern right to privacy. Nearly blind at the end, he dictated opinions of exceptional care. Tinsley Yarbrough's biography is the standard life. Start there, read Cohen and the Poe dissent, and meet the most respected conservative of his age.
The Bookshelf
The definitive biography, and a thorough one, by a leading scholar of the modern Court. Yarbrough traces the patrician career — Princeton, Oxford, a great Wall Street firm, a brief turn on the federal bench — and the sixteen years in which Harlan became the Warren Court's most formidable dissenter and the conservatives' intellectual anchor. He is excellent on the craftsmanship and consistency of Harlan's restraint, on his warm friendship with his liberal opposite Hugo Black (§76), and on the near-blindness of his final years. The essential life. Oxford University Press.
Harlan's most quoted opinion, and proof that his conservatism was principled, not partisan. A young man had worn a jacket reading 'Fuck the Draft' into a Los Angeles courthouse; Harlan, for the Court, overturned his breach-of-peace conviction, holding that the state could not criminalize offensive words without more, because 'one man's vulgarity is another's lyric' and the First Amendment protects the emotive as well as the cognitive force of speech. A cornerstone of modern free-expression law, written by the Court's leading conservative in defense of a slogan he surely disliked. Free online.
Harlan's most influential dissent, and a paradox at the heart of his legacy. When the Court ducked a challenge to Connecticut's contraception ban on technical grounds, Harlan dissented on the merits, arguing that the 'liberty' of the Due Process Clause is 'a rational continuum' that protects intimate marital privacy from such intrusion. Four years later the Court struck the law down in Griswold, and Harlan's reasoning — not Douglas's (§79) 'penumbras' — became the enduring foundation of substantive due process, cited in the privacy and liberty cases down to the present. The restraint-minded conservative wrote the charter of unenumerated rights. Free online.
The best single history of the Warren Court, and the indispensable setting for Harlan's dissents. Powe reads the Court as a political actor — a national institution pushing a broadly liberal, nationalizing agenda on race, democracy, criminal justice, and speech — and in doing so he defines exactly what Harlan was resisting. To understand the great dissenter you must understand the majority he answered, term after term; Powe supplies it with clarity and argument. Harvard/Belknap Press.
Harlan curated by his own former clerk — the opinions and papers that fixed his reputation as the conservative conscience of the Warren Court, published while he still sat. Before Yarbrough's biography existed, this was the Harlan book; it remains the essential primary companion. Harvard University Press.
The major collective assessment of Harlan — Ackerman's 'Common Law Constitution of John Marshall Harlan' and Fried's 'Conservatism of Justice Harlan' are the landmark essays, with contributions from his clerks and critics. The fullest scholarly conversation about him in print.
The single most-cited Harlan article — his former clerk's portrait of the 'constitutional conservative,' the phrase that has framed every discussion of Harlan since. The analytical starting point for the justice modern conservatives and liberals both claim.
The Reading Path
A researched route through the literature — in order.
- 1.Yarbrough, Great Dissenter of the Warren Court — for the patrician life and the craft of principled restraint
- 2.Cohen v. California — for 'one man's vulgarity' — conservatism in defense of speech
- 3.Poe v. Ullman dissent — for the 'rational continuum' that founded modern privacy
- 4.Powe, The Warren Court and American Politics — for the majority he spent his career answering
Where the Papers Are Kept
The John Marshall Harlan papers are held at the Seeley G. Mudh Manuscript Library at Princeton, his alma mater — a rich collection of opinions, drafts, and correspondence, including the case files that document his meticulous method and his exchanges with colleagues. The base for Yarbrough's biography. Visit →
Ideas for Further Research
- The two Harlans. The first Justice Harlan (§44) was the lone dissenter in Plessy and the Civil Rights Cases, a liberal on race a half-century ahead of his Court; his grandson was the great conservative dissenter of the Warren era. Compare the two — the causes each championed, the meaning of 'dissent' for each — and ask what it means that the same name marks both the conscience of one age and the brake on another.
- Restraint that built rights. Harlan's Poe v. Ullman dissent, an argument for judicial modesty, became the foundation of the most expansive rights jurisprudence in American history. Untangle the paradox: how did the Court's leading advocate of restraint author the reasoning behind Griswold, Roe, and the modern liberty cases — and what does that say about the supposed opposition between restraint and the protection of unenumerated rights?
- The friendship across the divide. Harlan and Hugo Black (§76) were ideological opposites — restraint versus absolutism, federalism versus incorporation — and the closest of friends on the Court. Use their relationship to study collegiality across deep disagreement, and ask what has become of that possibility on a Court, and in a legal culture, now sorted ever more sharply by ideology. Seat lineage: Jackson §82 → Harlan II → Rehnquist §100.