John Marshall Harlan II

His first opinions for the Court are the ones that made the Southern senators' fear look misplaced and then look right. In Yates v. United States (1957) he read the Smith Act to reach only advocacy aimed at action, not the teaching of a doctrine: 'The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.' In NAACP v. Alabama (1958), for a unanimous Court, he refused Alabama the Association's membership lists, because 'This Court has recognized the vital relationship between freedom to associate and privacy in one's associations,' and because 'Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.' But the same judge sat with Felix Frankfurter (§78) in the divided cases, and in a Court that Charles Whittaker (§91) had joined as the vote in the middle, Harlan was already the anchor of the other side. In 1962 William Shannon, writing on Brennan (§90), could take it for granted that a reader knew what 'Black or Frankfurter' meant as poles; when Frankfurter left the Court that year the pole was Harlan's, and for nine years it stayed his.

The dissents are the record. In Mapp v. Ohio (1961), when the Court applied the exclusionary rule to the states, he wrote that 'five members of this Court have simply "reached out" to overrule Wolf,' and that 'I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights.' The same day, in Poe v. Ullman, the Court dismissed a challenge to Connecticut's ban on contraceptives for want of a real controversy, and Harlan, dissenting, wrote the passage that outlived every majority he ever joined. 'Due process has not been reduced to any formula; its content cannot be determined by reference to any code.' The balance the clause struck 'is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.' And then: 'the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.' What Connecticut was doing, he said, was 'asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital relation with the full power of the criminal law.' It was the Court's most conservative member, by the site's own measure, explaining why the Constitution protected what its text did not name, and William Ledbetter, surveying the due process opinions in 1968, saw the cost of the method to the man: 'His treatment of civil liberty cases within the due process clause no doubt causes him in many instances to decide a case quite differently from his personal tastes.'

Against the reapportionment cases he wrote the sentences that the critics of the Warren Court have quoted ever since. In Baker v. Carr (1962), joining Frankfurter's last dissent and adding his own: 'one need not agree, as a citizen, with what Tennessee has done or failed to do, in order to deprecate, as a judge, what the majority is doing today.' In Reynolds v. Sims (1964), alone against eight: '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 for reform movements,' and 'This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process.' In Miranda v. Arizona (1966), with Potter Stewart (§92) and Byron White (§93), he called the new rules 'a hazardous experimentation' and closed with Jackson: 'Nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities. The foray which the Court makes today brings to mind the wise and farsighted words of Justice Jackson: "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."' In Shapiro v. Thompson (1969), against Brennan's majority: 'I know of nothing which entitles this Court to pick out particular human activities, characterize them as "fundamental," and give them added protection under an unusually stringent equal protection test.' And yet the concurrence that became the law of search and seizure was his too. In Katz v. United States (1967) he set out the test the Court has used since: 'there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable."' He said the same things off the bench. His lecture to the New York City bar in October 1958, Manning the Dikes, was about how the Court should take in its cases; his Ernst Freund Lecture at Chicago in 1963, A Glimpse of the Supreme Court at Work, walked through certiorari, argument, conference and assignment and told the bar that 'Decisions of the Court are not the product of an institutional approach'; his address at a dedication that year, Thoughts at a Dedication: Keeping the Judicial Function in Balance, was reprinted by David Shapiro in his 1969 collection of the opinions and papers.

The Supreme Court Database puts numbers to what the dissents say. Across 2,279 cases, 2,190 of them coded, his liberal share was 43.2 percent against a docket baseline of 64.9, a gap of twenty-two points that ranks last, thirty-third of the thirty-three justices on the site's modern scale: nobody who sat between 1946 and now sat further below his own docket, not William Rehnquist (§100) at thirty-second, not Whittaker at thirty-first. By liberal share alone he ranks twenty-third, because the docket he sat on was the Warren Court's. He was thirty-two points below his colleagues in economic cases, twenty-eight below them in civil rights, twenty-nine below in the First Amendment cases and twenty-three below in criminal procedure; he dissented in 28.0 percent of cases against colleagues who dissented at 16.5 on the same ones, a margin that only Douglas matches on the site. His closest colleague across divided cases was Frankfurter, at 79.1 percent agreement over 546 of them; his furthest was William O. Douglas (§79), at 25.8 percent over 1,437. The drift series, the question this program has asked of every subject, who moved, has its flattest answer here. His share went from 45.2 in the early terms to 41.9 in the late ones, the bench's from 64.3 to 62.2, and neither shift, nor the difference between them, is one the site scores as real; he ranks twenty-fifth of twenty-seven for drift. Brennan's chapter found a man who stood still while the Court walked away from him. This one finds a man who stood still on a Court that did not walk at all, sixteen years at the same distance from his docket, which is the other way of being the Court's fixed point.

The eyes went first. By the late 1960s he could not read the page; his clerks read to him, and the Court gave him an extra clerk to do it. Tinsley Yarbrough, his biographer, put the figure a clerk gave him: 'Toward the end, according to one clerk, around 60 hours a week they were spending on reading to him because he simply wasn't able to digest the material.' The opinions did not slow. In Welsh v. United States (1970), concurring only in the result, he did something justices rarely do in print: 'Candor requires me to say that I joined the Court's opinion in United States v. Seeger, 380 U. S. 163 (1965), only with the gravest misgivings as to whether it was a legitimate exercise in statutory construction, and today's decision convinces me that, in doing so, I made a mistake which I should now acknowledge.' The plurality's reading of the draft law's conscience clause, he said, 'has performed a lobotomy and completely transformed the statute,' and he would have reached the constitutional question instead, because a statute that exempts the religious objector and not the secular one 'offends the Establishment Clause.' In Boddie v. Connecticut (1971), for the Court, he held that a state could not close its divorce courts to people who could not pay the fee: 'Due process requires, at a minimum, that, absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.' And on June 7, 1971, in Cohen v. California, for a Court of five, he wrote the opinion that the country remembers him by, about a man arrested in a Los Angeles courthouse for the words on the back of his jacket. 'For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.' Words, he wrote, 'are often chosen as much for their emotive as their cognitive force,' and 'That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength.' Three weeks later, on June 30, he dissented in the Pentagon Papers case, with Warren Burger (§97) and Harry Blackmun (§98): 'With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these cases.' It was the last day of the last term he sat.

On August 16, 1971, he went into the Naval Medical Center at Bethesda with what was announced as a backache. Hugo Black (§76), his opposite on the Court and by Yarbrough's account a closer friend than Frankfurter had been, had been a patient there since August 28. Black retired on Friday, September 17. Harlan, Yarbrough says, 'wanted to delay his own retirement announcement an appropriate time so that the attention, properly, could be given to Hugo Black,' and he waited six days, until September 23; by then he had been moved to George Washington University Hospital and it was known that he had cancer. Black died on September 25. When the Court sat on October 4 the Chief Justice recorded 'the retirement of our beloved colleague, Mr. Justice Harlan, who served on this Court since March 28, 1955,' and that 'Ill health led Mr. Justice Harlan to submit to retirement when his high sense of duty persuaded him he could not continue to carry out his obligations to the Court.' On October 21 President Nixon told the country that 'most observers labeled Mr. Justice Black as a liberal and Mr. Justice Harlan as a conservative' and that he would send up Lewis Powell (§99) and William Rehnquist the next day; Rehnquist took Harlan's seat. Harlan died at George Washington University Hospital on December 29, 1971, at seventy-two. The President's statement called him 'one of the 20th century's giants on the Supreme Court of the United States' and spoke of 'his lucid intellect and consistently clear reasoning.' The services were at Emmanuel Church in Weston, Connecticut, on January 4, 1972, and he was buried there. When the Court met again on January 10 the Chief Justice said what the eight of them had lost: 'The deep personal loss to us is the departure of a beloved friend whose warmth and gaiety lightened all the burdens and cheered all the gatherings of the Justices of this Court for 16 years.'

The Court sat in his memory on October 24, 1972, and the Bar's resolution counted the work: 'During his 16 years on the Supreme Court, Justice Harlan wrote a total of 613 opinions, more than any other Justice during this period, of which 168 were opinions for the Court, 149 were concurring opinions and 296 were dissenting opinions.' It added what the count could not show: 'When it is remembered that during his later years on the Court he was severely handicapped by his impaired eyesight, his output of opinions is remarkable and is convincing proof of his devotion to the Court and his appreciation of its importance to the country.' Attorney General Kleindienst spoke of 'the illness which virtually blinded him in the last few years of his life,' and the Chief Justice, who had sat beside him for two terms, described him: 'His head and face had a sculptured aspect, the eyes deep set but very alert even in the years that his sight was failing.' The book this chapter continues had reached its own verdict while he still sat, in the present tense, and it is the right one to end on. 'But in the last analysis, even votes and opinions do not of themselves reveal the full stature of the judge. As in other realms of life, the intangibles count for a lot: the warmth of the man as well as his work, his devotion to duty as well as his decisions. When these qualities are taken into account, Justice Harlan is properly seen to be a leader of the contemporary Court and one who exemplifies many of its finest traditions.' The record on this site puts him last on every scale it can measure. His colleagues, who could measure the rest, put him first.