John Marshall Harlan, Associate Justice of the U.S. Supreme Court

http://en.wikipedia.org/wiki/John_Marshall_Harlan

The Legacy of Two Justices From One Family

— John Marshall Harlan and John Marshall Harlan II

Unique in the history of the U.S. Judiciary is the service of two Harlans as associate justices of the Supreme Court—John Marshall Harlan and his grandson, John Marshall Harlan II. Both were raised to the law and both served with diligence, intelligence and integrity.

The elder Judge Harlan was born June 1, 1833, at Harlan’s Station in Boyle County, Kentucky. (Harlan County, Kentucky, was named for his great uncle Silas, who died at the Battle of Blue Licks in 1782.) He came from a prominent slave-holding family. His father, James, was a lawyer and politician who served in Congress and later was secretary of state and attorney general in his home state. John Marshall was well educated—first in a private academy, then Centre College in Danville and later in law school at Transylvania University in Lexington. He joined his father’s law practice before entering politics.

John Marshall Harlan vigorously defended slavery and thought the government should not interfere, but at the same time, he believed that the Union must be preserved and even enlisted in the Union Army in 1861. But he did a complete turn-around and in 1871 he said, “I have lived long enough to feel and declare that . . . the most perfect despotism that ever existed on this earth was the institution of African slavery . . .With slavery it was death or tribute . . . It knew no compromise, it tolerated no middle course. I rejoice that it is gone. . . Let it be said that I am right rather than consistent.” He became a Republican, supported civil rights for black Americans and continued his political career.

His family background played a part in his racial attitudes. Though his father owned slaves, the family detested any brutality and disliked “involuntary servitude in any form”. John was repulsed by the treatment of blacks after the Civil War. And John had a slave half-brother, Robert, who was treated almost like a member of the family. Robert had limited contact with John but lived a privileged life in Ohio and later in England.

John Marshall Harlan was confirmed by the Senate in December, 1877, and was the 45th justice of the Supreme Court. He is best remembered for his lone dissent in the infamous ruling of PLESSY v. FERGUSON case in 1896 which upheld the “separate by equal” doctrine. He wrote: “In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law . . .”

His Supreme Court tenure of almost 34 years ended with his death on October 14, 1911.

A grandson of this early Supreme Court justice was John Marshall Harlan II, son of John Maynard Harlan, also a lawyer. The young Harlan was born in Chicago, Illinois, in 1899. He was educated at Princeton and Oxford and developed into a successful corporate litigator. He served as assistant to U. S. attorneys in New York before spending the years from 1930 to 1943 in private practice. During World War II he headed the Eighth Bomber Command’s Operations Analysis Section before returning to New York to resume his law practice. As chief counsel of the New York State Crime Commission in the early 1950s, he exposed racketeering on the New York waterfront. He also represented Du Pont in a lengthy antitrust suit which took most of his time until he was seated on the U.S. Court of Appeals for the Second Circuit in 1954. In less than a year President Eisenhower nominated John Marshall Harlan II to the Supreme Court where Harlan was a dominant intellectual force. He was known for his tactfulness, civility and tolerance toward others. His health and eyesight began deteriorating in the 1960s, as did the health of his wife, Ethel. He died in 1971.

For both of these men to come from one family—The Harlan Family in America—and to capture the attention of the presidency and Congress in their respective times, and then to serve as outstanding jurists in the highest court of the land is most notable and extraordinary.

Article about Supreme Court Justice John Marshall Harlan (2969)

Submitted by Joseph B. Harlan 24 Aug 2001

As a member of the Supreme Court Historical Society (224 East Capitol Street, N.E. Washington D.C. 20003) I recently received the latest edition of the Journal of the Supreme Court Historical Society which is published in March, July and November. July's edition (2001 VOL 26 NO 2) is devoted in its entirety to "Some Memories of a Long Life 1854-1911" authored by Malvina Shanklin Harlan in 1915, the wife of Supreme Court Justice John Marshall Harlan (2969). The publishing of this fascinating work encompasses her entire life with John Marshall Harlan from her marriage to him at age 17 (1826) until his demise (1911) was the result of the work of Associate Justice Ruth Bader Ginsburg, her law clerks and the "fine mind and hand of historian Linda Przybyszewski, author of THE REPUBLIC ACCORDING TO JOHN MARSHALL HARLAN."

I think members of the family will find this work of great interest from several perspectives. "The life she called long, is filled with anecdotes and insights about politics and religion in that era, the Supreme Court years 1877 to 1911 and the Harlan family. The reader is exposed to the Hayes White House through Malvina's friendship with First Lady Lucy Hayes, nicknamed "Lemonade Lucy" for her avid temperance. We learn of Malvina's extraordinary encouragement when her husband wrote the lone dissent from the Supreme Court's judgment striking down the Civil rights Act of 1875, a measure congress enacted to promote equal treatment, without regard to race, in various public accommodations."

I have spoken to the publisher and reprints of this volume (Supreme Court Historical Society Journal 2001 VOL 26 NO 2) are available for $24.00 through Blackwell Publishers, Inc. with offices at 350 Main Street, Malden MA 02148, USA and 108 Crowley Road , Oxford OX4 IJF, UK. You may also call toll free in the US at 1-800-835-6770 or fax (781) 388-8232 or e-mail:subscrip@blackwellpub.com.

---Joseph B. Harlan, Esq. Consultant to the Law Firm of Piper, Marbury, Rudnick & Wolfe

Baltimore Office 410-580-4155

John Marshall Harlan (1833 - 1911)

Associate Justice of the U.S. Supreme Court

For more information visit The John Marshall Harlan Collection at the University of Louisville School of Law Library.

John Marshall Harlan

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   This is about the pre-World-War-I US Supreme Court justice; for his grandson, the mid-20th-century holder of the same position, see John Marshall Harlan II.

John Marshall Harlan

John Marshall Harlan

Associate Justice of the United States Supreme Court

In office

December 10, 1877 – October 14, 1911

Nominated by Rutherford B. Hayes

Preceded by David Davis

Succeeded by Mahlon Pitney

Born June 1, 1833

Boyle County, Kentucky, USA

Died October 14, 1911

Washington, D.C., USA

John Marshall Harlan (June 1, 1833 – October 14, 1911) was an American Supreme Court associate justice. He is most notable as the lone dissenter in the infamous 1896 case of Plessy v. Ferguson, which upheld Southern segregation statutes. He was also the first Supreme Court justice to have earned a modern law degree.

Contents

[hide]

   * 1 Biographical Information

* 2 Tenure at the Supreme Court
* 3 Plessy v. Ferguson (1896)
* 4 Death and legacy
* 5 Sources
* 6 References
* 7 External links
[edit] Biographical Information

Col. John M. Harlan, 1861

Col. John M. Harlan, 1861

Harlan was born into a prominent Kentucky slaveholding family, his father a well-known Kentucky politician and former Congressman. Harlan graduated from Centre College, where he was a member of Beta Theta Pi, and began his career by joining his father's law practice in 1852. Harlan graduated from law school at Transylvania University in 1853. He was a Whig like his father; after the party's dissolution, he participated in several parties, including the Know Nothings. Harlan was elected county judge of Franklin County, Kentucky in 1858. He enlisted in the Union Army in 1861 when the Civil War broke out, rising to the rank of colonel.

Harlan firmly supported slavery but fought to preserve the Union. He had said he would resign if President Lincoln signed the Emancipation Proclamation, but in fact did not leave the army until the death of his father, several months later, to care for his family.

He resumed his career and was elected Attorney General of Kentucky in 1863. Harlan joined the Republican party in 1868 and remained a Republican for the rest of his life, and, befitting his new party, he turned strongly against slavery, calling it "the most perfect despotism that ever existed on this earth." He ran for governor in 1871 and 1875, losing both times.

[edit] Tenure at the Supreme Court

He was appointed to the Supreme Court in 1877 by President Rutherford B. Hayes, whom he had helped win the 1876 Republican party presidential nomination. While serving on the Court, Harlan supplemented his income by teaching Constitutional Law at a night law school which became part of George Washington University.

On the Court, Harlan became known as "the great dissenter." As the Court moved away from interpreting the Reconstruction Amendments to protect African Americans, Harlan wrote several eloquent dissents in support of equal rights for African Americans and racial equality. In the Civil Rights Cases (1883), the Supreme Court struck down the Civil Rights Act of 1875, holding that the act exceeded Congressional powers. Harlan alone dissented, vigorously, charging that the majority had subverted the Reconstruction Amendments: "The substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism."

Harlan was the first justice to argue that the Fourteenth Amendment incorporated the Bill of Rights (making rights guarantees applicable to the states), in Hurtado v. California (1884). His argument would later be adopted by Hugo Black. Today, virtually all of the protections of the Bill of Rights and Civil War amendments are now incorporated, though not by the theory advanced by Harlan.

Harlan also dissented in Lochner v. New York, though he agreed with the majority "that there is a liberty of contract which cannot be violated even under the sanction of direct legislative enactment."

[edit] Plessy v. Ferguson (1896)

John Marshall Harlan

John Marshall Harlan

In 1896, the Supreme Court handed down one of the most reviled decisions in its history, Plessy v. Ferguson (1896), which established the doctrine of "separate but equal" as it legitimized Southern segregation practices. The Court, speaking through Justice Henry B. Brown, held that separation of the races was not inherently unequal, and any inferiority felt by blacks at having to use separate facilities was an illusion: "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of any-thing found in the act, but solely because the colored race chooses to put that construction upon it."[1] (While the Court held that separate facilities had to be equal, in practice the facilities designated for blacks were invariably inferior.)

Harlan was once again alone in dissenting. In stirring language that would inspire Civil Rights activists for generations more, Harlan declared: "But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved." Harlan argued that the Louisiana law at issue in the case, which forced separation of white and black passengers on railway cars, was a "badge of servitude"[1] that degraded African-Americans, and correctly predicted that the Court's ruling would become as infamous as its ruling in the Dred Scott case.

While Harlan is still admired by many civil rights leaders, a comment of his in the dissent concerning the Chinese in America has become dated. Harlan attacked the nonsensicalness of the law by pointing out that the "Chinese race," which was considered foreign[2] and that "we do not permit those belonging to it to become citizens of the United States"[1] (which was true at the time, with rare exceptions), were in fact allowed to ride with white citizens while Negroes who "perhaps, risked their lives for the preservation of the Union" were not.

[edit] Death and legacy

Harlan died on October 14, 1911 after 33 years with the Supreme Court, one of the longest tenures in history. Many regard Harlan as one of the most important, controversial, and visionary Supreme Court Justices in U.S. History.

It is also said that Harlan's attitudes towards civil rights were influenced by the social principles of the Presbyterian Church. During his tenure as a Justice, he taught a Sunday school class at a Presbyterian church in Washington, DC.

His son, James S. Harlan, became the chairman of the Interstate Commerce Commission; his grandson, John Marshall Harlan II, was also an associate Supreme Court justice.

There are collections of Harlan's papers at the University of Louisville in Louisville, Kentucky and at the Manuscript Division of the Library of Congress in Washington, D.C.. Both are open for research.

He is buried in Rock Creek Cemetery, Washington, DC.

[edit] Sources

   * Linda Przybyszewski: The Republic According to John Marshall Harlan. University of North Carolina Press, Chapel Hill 1999, ISBN 0-8078-4789-5

* Loren P. Beth: John Marshall Harlan: The Last Whig Justice. University Press of Kentucky, Lexington 1992, ISBN 0-8131-1778-X
[edit] References

  1. ^ a b c Plessy v. Ferguson at Findlaw"

2. ^ Two years later, he described them as members of a "distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usage of their own country, unfamiliar with our institutions and religion, and apparently incapable of assimilating with our people.[1]"
[edit] External links

   * U.S. Supreme Court Multimedia - John M. Harlan

* University of Louisville, Louis D. Brandeis School of Law Library - Harlan Collection
Harlan, John Marshall '20 (1899-1971), was the eighth Princeton graduate to serve as Justice of the United States Supreme Court.

Public service was a hallmark of his family. His Quaker forebear, George Harlan, came to America from Durham, England, in 1687 and eight years later became governor of Delaware. His great-grandfather James Harlan was attorney general of Kentucky and a United States congressman from that state in the 1830s. His grandfather, for whom he was named, served from 1877 to 1911 as a Justice of the Supreme Court. He is best remembered as the sole dissenter from the Court's 1896 declaration of the so-called separate but equal doctrine in defense of racial segregation, which he denounced because, he said, our Constitution is color-blind and neither knows nor tolerates classes among citizens. An uncle, Richard D. Harlan 1881, the first Princetonian in the family, was president of Lake Forest College, and another uncle, James S. Harlan 1883, was attorney general of Puerto Rico. His father, John Maynard Harlan 1884, practiced law and served as a city alderman in Chicago.

John Harlan '20 was outstanding in the student life of his generation, serving as chairman of The Daily Princetonian, chairman of the Senior Council, and president of his class in junior and senior years. After graduating with honors in 1920, he spent three years as a Rhodes Scholar at Oxford, taking an A.B. with a first in jurisprudence in 1923.

On his return from England, he began work with one of the nation's leading law firms while studying at the New York Law School. He earned his LL.B. in 1924, was admitted to the New York bar in 1925, and became a partner in his firm in 1931. In the late 1920s, as special assistant attorney general of New York state, he investigated the Queens County sewer scandals and helped convict a former Queens borough president of conspiracy. In 1940 he and a partner represented the New York Board of Higher Education in its unsuccessful attempt to retain Bertrand Russell on the faculty of the City College of New York.

During World War II he served as a colonel in the United States Army Air Force, in charge of the Operations Analysis Section of the Eighth Bomber Command in England. He was awarded the American Legion of Merit and the Belgian and French Croix de Guerre.

In the early 1950s, as chief counsel for the newly created New York State Crime Commission, Harlan helped investigate waterfront rackets in New York City and illegal gambling activities in several other communities. Later, he was one of four attorneys who successfully defended several members of the duPont family in a federal antitrust suit.

On nomination of President Eisenhower, he became a judge of the United States Court of Appeals for the Second Circuit in March 1954 and associate justice of the Supreme Court a year later.

Harlan was called a lawyer's judge as well as a judge's judge. His opinions were so closely reasoned and so clearly written that lawyers often turned to him first for a succinct, fair statement of the issues. In reviewing his career, newspapers spoke of him as the court's conservative conscience.

He was a strong believer in states' rights and an ardent defender of the rights of the individual. When the Court laid down its one-man, one-vote rule for state legislatures in 1964 he dissented, because he believed the vitality of the American political system was weakened by reliance on the judiciary for political reform; the Constitution, he said, is not a panacea for every blot upon the public welfare. But he frequently sided with the liberals and sometimes wrote the majority opinion for them. In 1955 he joined in the unanimous opinion directing the district courts to take such action as was necessary to bring about, with all deliberate speed, the end of racial segregation in the public schools, which the Court had declared unconstitutional the previous year. In 1971 he wrote the majority opinion that found that wearing, in a courthouse corridor, a jacket bearing an obscene protest against the draft was constitutionally protected free speech.

Harlan was admired by his associates for his integrity, his modesty, his gentle humor and, in his last years (when he wrote some of his most notable opinions), for the courage with which he met the challenge of seriously failing eyesight. Among the many tributes paid him after his death, at the age of seventy-two, was one by one of his first law clerks, Harvard Law School Professor Paul M. Bator (Princeton class of 1951), who said in part:

The private virtues -- love of truth; kindness; respect for others; the kind of decency and straightforwardness which only a firm self-respect can produce; an utter honesty and simplicity of spirit, combined with what the Psalmist cried out for, a heart of flesh rather than a heart of stone -- these were the qualities that transfigured Justice Harlan's public acts.

Nothing is more fashionable in our society than to serve the cause of democracy by keeping a jealous scrutiny lest others exceed their power. Nothing is less common than one who is equally scrupulous about his own. Justice Harlan was one of these rare public men. For him fidelity to law was fidelity to the whole law, every day and not every other day, fidelity not only to those rules which define other people's power but also those which limited his own. . . . Maybe his most enduring legacy will be this, that when the dark night of cynicism and hopelessness is on us, we can say, yes, fidelity to law is possible, is worthwhile, is real.