Searches for Judge Harlan almost always point to one of two United States Supreme Court justices who shared the name John Marshall Harlan. The first served from 1877 to 1911 and became known as “The Great Dissenter” for standing alone against a Court that tolerated racial segregation. His grandson served from 1955 to 1971 and became the leading voice for judicial restraint during the Warren Court era. Between them, they wrote opinions and dissents that still govern constitutional doctrine today.
John Marshall Harlan I: The Great Dissenter
Born in 1833 into a prominent Kentucky slaveholding family, the first Justice Harlan studied law at Transylvania University and entered politics through the Whig and Know-Nothing parties. During the Civil War he organized the Tenth Kentucky Infantry and served as its colonel for the Union, though he fought to preserve the Union rather than end slavery. He publicly opposed the Emancipation Proclamation as unconstitutional and did not free the people he enslaved until the Thirteenth Amendment forced his hand.
Then came the reversal. Campaigning for governor of Kentucky in 1871, Harlan renounced his earlier views. “I have lived long enough to feel and declare,” he said, “that the most perfect despotism that ever existed on this earth was the institution of African slavery.” Challenged for inconsistency, he answered: “Let it be said that I am right rather than consistent.” He joined the Republican Party, and President Rutherford B. Hayes nominated him to the Court in 1877.1Oyez. John M. Harlan He took the judicial oath on December 10, 1877, and served until his death on October 14, 1911, a tenure of nearly thirty-four years.2Supreme Court of the United States. Justices 1789 to Present
Harlan I’s Most Important Opinions
Plessy v. Ferguson
Harlan’s most famous dissent came in 1896, when the Court upheld Louisiana’s law requiring separate railway cars for Black and white passengers. The majority called the arrangement a reasonable exercise of state authority. Harlan declared that the Constitution “is color-blind, and neither knows nor tolerates classes among citizens,” and compared the decision to Dred Scott for the damage it would inflict on the country’s commitment to equality.3Justia U.S. Supreme Court Center. Plessy v. Ferguson, 163 U.S. 537 (1896) He warned that state-sanctioned segregation would breed racial hostility rather than preserve peace. The Court vindicated him nearly sixty years later in Brown v. Board of Education.
The Civil Rights Cases
In 1883, the Court struck down the Civil Rights Act of 1875, holding that the Fourteenth Amendment reached only state discrimination, not discrimination by private businesses. Harlan dissented alone. He argued that private businesses performing public functions like transportation and lodging were effectively carrying out a government role, and that excluding people from these services based on race amounted to a badge of slavery prohibited by the Thirteenth Amendment.4Justia U.S. Supreme Court Center. Civil Rights Cases, 109 U.S. 3 (1883)
Lochner v. New York
In 1905, the Court struck down a New York law limiting bakery workers to sixty hours per week and ten hours per day, ruling that it violated the freedom of contract protected by the Fourteenth Amendment. Harlan wrote the principal dissent. He pointed to medical evidence that long bakery hours damaged workers’ health and insisted that courts should defer to legislatures on economic regulation unless a law was “beyond question, plainly and palpably in excess of legislative power.”5Justia U.S. Supreme Court Center. Lochner v. New York, 198 U.S. 45 (1905) That deference eventually became the governing standard.
Standard Oil Co. of New Jersey v. United States
Even when the Court reached the right outcome, Harlan was willing to fight over the reasoning. In the 1911 case breaking up Standard Oil, the Court introduced the “rule of reason,” holding that only unreasonable restraints of trade violated the Sherman Act. Harlan concurred in the result but dissented from the reasoning, writing that the Court had “read into the act of Congress words which are not to be found there.” Giving judges discretion to decide which restraints were “reasonable,” he warned, amounted to judicial legislation.6Justia U.S. Supreme Court Center. Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911)
John Marshall Harlan II: Restraint in the Warren Court
The grandson graduated with honors from Princeton in 1920, spent three years as a Rhodes Scholar at Oxford earning a degree in jurisprudence, and built a career as a corporate litigator in New York. He served as a colonel in the United States Army Air Forces during World War II and became one of the country’s leading appellate advocates.
President Eisenhower appointed him to the United States Court of Appeals for the Second Circuit in January 1954.7Justia U.S. Supreme Court Center. Justice John Marshall Harlan II Less than a year later, after the death of Justice Robert Jackson, Eisenhower elevated him to the Supreme Court. The confirmation ran into opposition from Southern senators who feared, in the wake of Brown v. Board of Education, that Harlan would push desegregation further. He was confirmed 71 to 11 and took the oath on March 28, 1955.8Oyez. John M. Harlan II
Where his grandfather used dissent as a weapon against a conservative majority, the younger Harlan dissented against the Warren Court’s rapid expansion of constitutional rights. His disagreements were not rooted in hostility to civil liberties. He believed that the judiciary should not be the primary engine of social change and that imposing uniform national rules on states without sufficient grounding in text or history risked destabilizing the federal system.
That conviction shaped his approach to incorporation, the question of whether the Fourteenth Amendment’s Due Process Clause binds the states to the full Bill of Rights. In Duncan v. Louisiana, where the Court held that the Sixth Amendment right to a jury trial applied in state criminal proceedings, Harlan dissented. Due process, he argued, required only “fundamental procedural fairness,” and judges were not inherently unfair simply because they presided without a jury.9Justia U.S. Supreme Court Center. Duncan v. Louisiana, 391 U.S. 145 (1968) In Gideon v. Wainwright, he concurred in holding that indigent criminal defendants have a right to appointed counsel, but cautioned that reaching that result did not mean every detail of federal Sixth Amendment doctrine should automatically transfer to the states.10Justia U.S. Supreme Court Center. Gideon v. Wainwright, 372 U.S. 335 (1963)
Harlan II’s Most Important Opinions
Katz v. United States
Harlan’s concurrence in Katz v. United States may be the most consequential opinion of his career in daily life. The Court held in 1967 that the Fourth Amendment protects people, not just physical places, and Harlan’s concurrence supplied the working test: a person must have exhibited an actual expectation of privacy, and that expectation must be one society recognizes as reasonable.11Justia U.S. Supreme Court Center. Katz v. United States, 389 U.S. 347 (1967) This “reasonable expectation of privacy” test has governed Fourth Amendment law ever since, from wiretapping to cellphone searches.
Poe v. Ullman
In Poe v. Ullman, a challenge to Connecticut’s ban on contraceptives that the Court dismissed on procedural grounds, Harlan wrote a dissent arguing that the Due Process Clause protected a sphere of private life the government could not arbitrarily invade. He called the statute “an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual’s personal life.”12Wikisource. Poe v. Ullman/Dissent Harlan That reasoning became the intellectual foundation for Griswold v. Connecticut four years later and influenced substantive due process doctrine for decades.
Cohen v. California
The most surprising opinion of Harlan’s career may be his 1971 majority opinion in Cohen v. California. A man had been convicted for wearing a jacket bearing a profane slogan about the draft into a courthouse. Harlan held that the First Amendment protected even crude and offensive expression, writing that the government could not criminalize particular words without running a substantial risk of suppressing the ideas behind them. The Constitution’s protection of free expression, he wrote, “is powerful medicine in a society as diverse and populous as ours,” and it reaches the emotional force of language, not just its intellectual content.13Justia U.S. Supreme Court Center. Cohen v. California, 403 U.S. 15 (1971)
Harlan retired from the Court on September 23, 1971, and died of spinal cancer on December 29 of that year at the age of seventy-two.8Oyez. John M. Harlan II
Why Both Harlans Are Still Cited
The two Justice Harlans sat on opposite ends of their respective Courts, and both showed that a minority voice can shape the law more powerfully than a majority opinion. The grandfather stood against a Court willing to tolerate racial hierarchy, and his color-blind Constitution language became a rallying cry for the civil rights movement decades later. The grandson stood against a Court he believed was moving too fast, insisting that expanding rights without constitutional discipline would weaken the foundations those rights depended on.
Their methods differed. The elder Harlan wrote with moral urgency and sweeping language designed to outlast the opinions he was challenging. The younger Harlan preferred precision, building arguments from precedent and structural principles. Both wrote for a future audience rather than a present majority. Harlan I’s Plessy dissent became more influential than the majority it answered. Harlan II’s Katz concurrence and Poe dissent supplied frameworks the Court later adopted wholesale. For anyone researching the name, the point is the same: the most important opinion in a case is not always the one that wins.