Justice John Marshall Harlan II served on the United States Supreme Court from 1955 to 1971 and is widely remembered as the Warren Court’s great dissenter — a conservative voice on a liberal bench whose carefully reasoned opinions, often in the minority during his own era, became foundational doctrine in the decades after his death. President Dwight D. Eisenhower nominated him to fill the vacancy left by Justice Robert H. Jackson, and he took his seat on March 28, 1955.1Justia U.S. Supreme Court Center. Justice John Marshall Harlan II Colleagues called him a “judge’s judge.” The label stuck because he earned it.
Background and Path to the Court
Harlan carried a famous name. His grandfather, the first Justice John Marshall Harlan, served on the Supreme Court from 1877 to 1911 and earned his own nickname — “the Great Dissenter” — for lone objections to decisions like Plessy v. Ferguson. The younger Harlan graduated from Princeton in 1920, where he had edited The Daily Princetonian and served as class president. He studied at Balliol College, Oxford, as a Rhodes Scholar and took his law degree from New York Law School in 1924.1Justia U.S. Supreme Court Center. Justice John Marshall Harlan II
His career before the bench moved between private practice and public service. He prosecuted in New York City, joined a prominent law firm, served in the military during World War II, and earned the Legion of Merit. In 1951 he became Chief Counsel to the New York State Crime Commission, investigating organized crime and public corruption. Eisenhower first appointed him to the U.S. Court of Appeals for the Second Circuit in January 1954, where he served roughly a year before his elevation to the Supreme Court.1Justia U.S. Supreme Court Center. Justice John Marshall Harlan II
His Judicial Philosophy
Harlan believed the federal judiciary had a limited role in American democracy. He did not treat the Constitution as a tool for fixing every social problem, and he viewed the political process as the right place for most policy disputes.2Oyez. John M. Harlan II That conviction shaped his federalism. He thought states deserved room to run their own legal procedures and governing structures, and that the Court should intervene only when a state genuinely violated a fundamental principle of justice.
The clearest expression came in the incorporation debate. Through the Warren Court years, a majority of justices steadily applied specific provisions of the Bill of Rights to the states through the Fourteenth Amendment. Harlan resisted at nearly every turn. He argued that the Due Process Clause required states to respect “ordered liberty” — a standard rooted in fundamental fairness — rather than track every specific procedural guarantee designed for the federal government.3Constitution Annotated. Amdt14.S1.4.2 Early Doctrine on Incorporation of the Bill of Rights When the Court held in Duncan v. Louisiana (1968) that the Sixth Amendment jury trial right applied to the states, Harlan dissented, contending that due process is violated only when a defendant is denied “an element of fundamental procedural fairness,” and that judges could provide that fairness perfectly well.4Justia. Duncan v. Louisiana, 391 U.S. 145 (1968)
His federalism concerns ran through voting rights too. In Reynolds v. Sims (1964), the Court established the “one person, one vote” principle for state legislative districts. Harlan dissented sharply, arguing that the Fourteenth Amendment’s framers never intended it to reach voting rights and that the ruling intruded on how states organized their own legislatures.5Justia. Reynolds v. Sims, 377 U.S. 533 (1964) He saw the decision as the Court substituting its own policy preferences for the choices of elected state officials.
Harlan also cared deeply about the mechanics of how cases reached the Court. Standing, ripeness, and the other jurisdictional rules were not technicalities to him but essential structural safeguards. He valued incremental development of legal principles through carefully selected disputes, and he treated stare decisis as the mechanism that kept the law predictable. Even when he disagreed with a prior ruling, he was reluctant to overturn it, preferring to distinguish or limit it rather than discard it. Lawyers who practiced before the Court knew what to expect from Harlan, and that predictability was the point.
The Privacy Opinions That Became His Legacy
Harlan’s most far-reaching influence on constitutional law came in the area of privacy, where he wrote three opinions over a decade that built on each other.
Poe v. Ullman (1961)
In Poe v. Ullman, the majority dismissed a challenge to Connecticut’s ban on contraceptives, ruling the case was not ripe because the law had never actually been enforced. Harlan dissented at length. He argued that the liberty protected by the Fourteenth Amendment’s Due Process Clause encompassed the privacy of the marital relationship, and he described the home as a sphere the government could not invade without narrowly tailored justification. He grounded the argument not in any specific provision of the Bill of Rights but in the broader concept of ordered liberty embedded in due process itself. The dissent became a blueprint for the Court’s future privacy rulings.
Griswold v. Connecticut (1965)
Four years later, the Court struck down that same Connecticut law in Griswold v. Connecticut. Justice Douglas’s majority opinion relied on “penumbras” emanating from various Bill of Rights provisions. Harlan concurred in the result but refused to join that reasoning. He stated plainly that his position was the one he had already laid out in his Poe dissent: the Due Process Clause of the Fourteenth Amendment “stands, in my opinion, on its own bottom” and does not depend on the Bill of Rights or “any of their radiations.”6C-SPAN. Griswold v. Connecticut – Justice Harlan Concurring That was Harlan in miniature: agreeing with the outcome but insisting on cleaner reasoning to get there.
Katz v. United States (1967)
His most enduring contribution came in a concurrence in Katz v. United States, where the Court held that the Fourth Amendment’s protections were not limited to physical spaces. Harlan proposed a two-part test. Fourth Amendment protection applies when a person has “exhibited an actual (subjective) expectation of privacy” and when that expectation is “one that society is prepared to recognize as ‘reasonable.'”7Justia. Katz v. United States, 389 U.S. 347 (1967) A person using a phone booth and closing the door, for instance, has a reasonable expectation that the conversation is private, even though the booth itself is publicly accessible.8Library of Congress. Katz v. United States, 389 U.S. 347 (1967)
The “reasonable expectation of privacy” test was technically a concurrence, not binding law. It was adopted anyway, by virtually every court in the country, and it remains the governing standard for Fourth Amendment analysis more than half a century later. Courts invoke it in cases involving cell phone tracking, thermal imaging, and internet surveillance. For a justice skeptical of sweeping judicial pronouncements, a two-sentence formulation in a concurring opinion ended up as one of the most cited standards in American constitutional law.
Free Speech Majorities
NAACP v. Alabama (1958)
One of Harlan’s most consequential majority opinions came early, in NAACP v. Alabama. The state of Alabama had demanded the NAACP turn over its membership lists. Writing for a unanimous Court, Harlan held that freedom of association is protected by the Fourteenth Amendment’s Due Process Clause and that forcing the organization to reveal its members would effectively punish people for joining a civil rights group. He wrote that “inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”9Justia. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) Any state interest in obtaining such information, the Court held, must be “compelling” — a standard that continues to shape First Amendment law.
Cohen v. California (1971)
In one of his last opinions, Harlan wrote for the majority in Cohen v. California, overturning the conviction of Paul Robert Cohen, who had worn a jacket bearing a profane anti-draft slogan inside a Los Angeles courthouse. Cohen had been convicted under a California disturbing-the-peace statute and sentenced to thirty days in jail.10Justia. Cohen v. California, 403 U.S. 15 (1971) Harlan held that the First and Fourteenth Amendments prevented the state from criminalizing the public display of a single four-letter expletive without a more specific justification.
The opinion contains one of his most quoted lines: “one man’s vulgarity is another’s lyric.” The deeper point mattered more. Harlan reasoned that words carry emotional force as well as intellectual content and that the Constitution protects both functions. Banning particular words, he warned, risked giving the government a convenient cover for suppressing unpopular viewpoints.10Justia. Cohen v. California, 403 U.S. 15 (1971) Coming from a justice known for restraint and decorum, the opinion carried unusual weight.
Street v. New York (1969)
Harlan applied similar reasoning in Street v. New York. Sidney Street, after hearing that civil rights activist James Meredith had been shot, burned an American flag on a Brooklyn street corner while declaring that if “they did that to Meredith, we don’t need an American flag.”11Justia. Street v. New York, 394 U.S. 576 (1969) He was charged under a New York law that criminalized both physically defiling a flag and speaking contemptuously about one. Harlan’s majority opinion overturned the conviction because the record could not rule out the possibility that Street was punished for his words alone. Rather than reach the broader question of whether flag burning itself was protected, Harlan kept the decision narrow, consistent with his preference for resolving only the issue squarely before the Court.12Oyez. Street v. New York
The Miranda Dissent
Harlan’s dissent in Miranda v. Arizona (1966) captures the tension between his respect for individual rights and his belief that the Court was overstepping its role. The majority held that police must inform suspects of their right to remain silent and to have an attorney before custodial interrogation. Harlan argued the decision represented “poor constitutional law” that would bring “harmful consequences for the country at large.”13Justia. Miranda v. Arizona, 384 U.S. 436 (1966)
His objection was partly practical but mostly structural. Over the previous twenty-five years, the Court had developed what Harlan described as an “elaborate, sophisticated, and sensitive approach” to evaluating confessions under the Due Process Clause, a case-by-case voluntariness test that asked whether, given all the circumstances, a confession was genuinely coerced. The Miranda majority replaced that flexible framework with rigid procedural requirements that Harlan believed had no basis in the Constitution’s text or history.13Justia. Miranda v. Arizona, 384 U.S. 436 (1966) He saw the Court as writing a code of police conduct through judicial decree, the kind of legislative function he thought belonged to elected officials. History has largely validated the Miranda warnings as workable, but Harlan’s critique of the reasoning remains a touchstone for debates about judicial power.
Retirement and Lasting Influence
By his final years, Harlan’s eyesight had nearly failed. He had special lights installed in his chambers and held papers within an inch or two of his eyes to read them. Colleagues reported that he eventually recited his opinions from memory. He retired on September 23, 1971, due to failing health and died three months later on December 29 of that year at age seventy-two.1Justia U.S. Supreme Court Center. Justice John Marshall Harlan II Justice William Rehnquist filled his seat.
Harlan spent much of his career in dissent, and during the Warren Court’s most active years his insistence on restraint sometimes looked like simple conservatism. Time has complicated that picture. His “reasonable expectation of privacy” test from Katz became the dominant Fourth Amendment framework. His substantive due process reasoning from the Poe dissent and Griswold concurrence laid groundwork the Court relied on for decades. His free speech opinions in Cohen and NAACP v. Alabama remain good law. Even justices who share none of his judicial philosophy cite his methodology approvingly: the careful attention to procedural posture, the refusal to reach issues unnecessarily, and the honesty of conceding when his preferred outcome lacked constitutional support. His reputation has grown steadily since his death, largely because the qualities that made him a judge’s judge turn out to be the ones that age best.