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Alumnus Spotlight: Supreme Court Justice John Marshall Harlan II

By May 20, 2021No Comments

The late United States Supreme Court Justice John Marshall Harlan II was an alumnus of the New York Young Republican Club. To commemorate the anniversary of his birth on May 20, 1889, the Club has reviewed his legacy and assembled this article to detail his exploits and successes. Justice Harlan II had a storied career serving as a member of the United States Supreme Court from 1955 to 1971. He was the grandson of the late Justice John Marshall Harlan I, who served on the United States Supreme Court from 1877 to 1911. John Marshall Harlan II attended Princeton University, was named a Rhodes Scholar, and later studied law at Balliol College, Oxford in England, and New York Law School.

In his career prior to serving on the Supreme Court, Justice Harlan II gained prominence serving as an Assistant U.S. Attorney in the Southern District of New York. He also spent some time working in private practice and volunteered to serve in World War II, joining the United States Army Air Forces as a colonel from 1943 to 1945.  He was appointed to the United States Court of Appeals for the Second Circuit by President Dwight D. Eisenhower in 1954 and served as a jurist there for just over a year before he was named an associate justice of the United States Supreme Court by President Eisenhower. He filled the vacancy left by the death of the esteemed jurist Justice Robert H. Jackson.

Justice Harlan II’s judicial legacy on the Supreme Court tended to be one of closely considering the role of the separation of powers when adjudicating and contemplating how pressing societal issues should be addressed by the branches of government. In cases involving the application of the Equal Protection Clause and Due Process Clause, he believed that jurists should take a more active role. The importance of racial equality in civil rights matters was very much a part of his philosophy, taking after his grandfather who had been the lone dissenter in Plessy v. Ferguson. He sided with the majority in Loving v. Virginia that ruled against race-based restrictions on marriage and with the majority in Cooper v. Aaron that prohibited the delay in the desegregation of schools.

Like his grandfather, Justice Harlan II had no fear of mounting a lone defense when the principled interpretation of statute and precedent merited it. He demonstrated this in Reynolds v. Sims, a critical voting rights case that undermined the constitutional structure of Alabama and other states. Prior to this oft-forgotten decision, states determined apportionment of votes within their respective legislatures according to their own practices, which, in some instances, enabled state legislatures to replicate the nature of the United States Congress as determined by the Connecticut Compromise. Justice Harlan II stood for an originalist interpretation of the Fourteenth Amendment, while the eight other justices bent to political will and conceived that it embraced voting rights extra-textually. The principle of originalism drove Justice Harlan II in his decision on this case; as he said in his dissent, which presaged twenty-first century concerns with the Supreme Court:

These decisions give support to a current mistaken view of the Constitution and the constitutional function of this court. This view, in short, is that every major social ill in this country can find its cure in some constitutional principle and that this court should take the lead in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare nor should this court, ordained as a judicial body, be thought of as a general haven of reform movements.

Other major cases that he was involved in included Torcaso v. Watkins, where Justice Harlan II sided with the majority in banning religious tests for public office. This issue came into focus again in recent years when then-senator Kamala Harris voiced her opposition to one of former President Donald J. Trump’s appointees to the federal judiciary and relied on his membership with  the Knights of Columbus, a Catholic fraternal organization, as a basis for her attack. These actions are a shameful reminder of how our leaders, including the sitting Vice President of the United States, have drifted from fidelity to Constitutional values.

Justice Harlan II also wrote a notable dissenting opinion in Miranda v. Arizona in which he challenged the majority opinion for relying on the Fifth Amendment as a justification for police to notify suspects of their rights during interrogation when in police custody. He concluded that there was no legal precedent for this ruling. Some of the notable rights in question were the right to remain silent and right to an attorney. Per the majority opinion, if the rights were not articulated verbally, a confession could be inadmissible at time of trial. Justice Harlan II was especially critical that this would complicate law enforcement in the proper resolution of matters and actually serve as a deterrent from confessing. He stated the following when recognizing the Supreme Court’s quandary:

“The more important premise is that pressure on the suspect must be eliminated though it be only the subtle influence of the atmosphere and surroundings. The Fifth Amendment, however, has never been thought to forbid all pressure to incriminate one’s self in the situations covered by it.”

The ghost of Miranda has sadly continued to this day, much as Justice Harlan II predicted. Valuable time to resolve matters is often squandered as law enforcement have their hands tied because suspects refuse to offer pertinent and time-sensitive information. It can lead to a backlog in courts and proceedings with complications in justice being timely served and greater hurdles to stopping further harm in a timely fashion. On a societal note, it also breeds a lethargic attitude towards civics and taking the time to engage and research the criminal justice system that governs the nation. It promotes the sentiment of irresponsibility. Justice Harlan II’s efforts to stand up for Constitutional principles and his foresight to anticipate the repercussions of this decision should be lauded.

Justice John Marshall Harlan II died on December 29, 1971, but he is remembered as one of the great legal minds of the twentieth century. The New York Young Republican Club is proud to count Justice John Marshall Harlan II among our alumni. We reflect on his legacy and shall continue to take a proactive approach to address issues that society contends with while maintaining our adherence to Constitutional principles.