He was the "conservative’s conservative." Or at least, that’s how the history books usually frame him. If you look at the Warren Court of the 1950s and 60s, John Marshall Harlan II often looks like the guy standing on the tracks trying to stop a speeding train. He was the intellectual counterweight to Earl Warren’s brand of judicial activism.
But here’s the thing.
Calling Harlan a simple conservative is kinda lazy. It misses the point of who he actually was. He wasn’t some reactionary trying to drag America back to the 1800s. Honestly, he was obsessed with the process of law. He cared more about how a decision was reached than whether the outcome felt good or fit a specific political agenda. This is the man who sat on the Supreme Court during the most radical era of American legal history, yet he spent his time worrying about things like "federalism" and "judicial restraint." To many, he was a killjoy. To others, he was the only thing keeping the Constitution from being treated like a rough draft.
The Weight of the Name
Imagine growing up with the name John Marshall Harlan. Your grandfather—the first Justice Harlan—was the "Great Dissenter." He was the only man on the Supreme Court in 1896 who had the guts to say that "our Constitution is color-blind" during Plessy v. Ferguson. That’s a massive shadow to live in.
John Marshall Harlan II didn't start his career in a courtroom. He was a Rhodes Scholar. He was a high-flying corporate lawyer at Root, Ballantine, Harlan, Bushby & Palmer in New York. During World War II, he didn't just sit in an office; he headed the Operations Analysis Section of the Eighth Air Force. He was a man of logic, data, and hard facts. When Eisenhower nominated him to the Supreme Court in 1954, he brought that "Wall Street Lawyer" mentality with him.
He arrived at the court just as the ink was drying on Brown v. Board of Education. The country was changing. The Court was beginning to see itself as a tool for social progress. Harlan? He wasn't so sure about that. He believed the Court's power was strictly limited. He thought that if a problem was political, it should be solved by politicians, not by nine people in black robes.
Why John Marshall Harlan II Stayed Relevant
You’ve probably heard of "Originalism" or "Textualism." Modern conservatives like Scalia or Thomas are famous for it. But Harlan was different. He practiced what we call "Judicial Restraint."
It’s a subtle distinction but a huge one.
Harlan didn't necessarily care what the Founding Fathers thought about iPhones or modern policing. What he cared about was the stability of the legal system. He hated when the Court would suddenly "discover" new rights that weren't clearly in the Constitution. To him, that was a dangerous game. He felt that if the Court started acting like a legislature, it would lose its legitimacy.
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Take the case of Griswold v. Connecticut in 1965. This was the case about birth control and the right to privacy. The majority of the Court argued that there were "penumbras" and "emanations" in the Bill of Rights that created a right to privacy.
Harlan agreed with the result—he thought the law was ridiculous—but he hated the reasoning. He wrote a famous concurrence. He argued that the "Due Process Clause" of the 14th Amendment was enough. He didn't need to invent "emanations." He just believed in ordered liberty. He thought the state had no business in a married couple’s bedroom because it violated deeply rooted American traditions.
He was a man of tradition, sure. But he was also a man of deep, rigorous integrity.
The Battle with the Warren Court
The 1960s were a wild time for the Supreme Court. They were churning out landmark decisions: Miranda v. Arizona, Gideon v. Wainwright, Reynolds v. Sims.
Harlan dissented in a lot of them.
Not because he hated the poor or wanted the police to beat people up. He just thought the Court was moving too fast. In Reynolds v. Sims, the Court ruled that state legislative districts had to be roughly equal in population—the "one man, one vote" principle. Most people today see that as a no-brainer. Harlan saw it as a disaster.
Why? Because he believed the Constitution explicitly left the structure of state governments to the states. He warned that the Court was entering a "political thicket." He basically told his colleagues, "Look, just because something is unfair doesn't mean it's unconstitutional."
That’s a hard pill to swallow. It makes you sound like a villain. But for Harlan, it was about protecting the institution. He believed that if the Court tried to fix every social ill, it would eventually be ignored.
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A Surprising Legacy on Free Speech
If you think Harlan was just a "No" man, look at his record on the First Amendment. This is where the "conservative" label starts to peel off.
Harlan wrote the opinion in Cohen v. California. This is the 1971 case where a guy wore a jacket into a courthouse that said "F*** the Draft."
The state wanted to throw him in jail for disturbing the peace. Harlan said no. He wrote one of the most famous lines in legal history: "One man's vulgarity is another's lyric."
Think about that. This buttoned-up, Ivy League, Wall Street aristocrat was defending the right of a protester to use profanity in a courthouse. He understood that in a free society, we have to put up with things that offend us. He realized that the government shouldn't be the one deciding which words are "nice" enough to be spoken.
It was a brilliant, nuanced defense of free expression. It showed that he wasn't a partisan; he was a philosopher.
The Quiet Craftsmanship of the Law
Harlan was often called a "judge's judge."
He worked incredibly hard. Even as his eyesight failed him toward the end of his life, he was notorious for his detailed, complex opinions. He would spend hours debating the smallest nuances with his law clerks. He didn't want to just win an argument; he wanted to be right.
He had a deep respect for precedent (stare decisis). Even if he disagreed with a previous ruling, he was very hesitant to overturn it. He believed the law needed to be predictable. If the law changes every time a new President appoints a new Justice, then it isn't really law—it’s just politics.
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His relationship with the liberal Justices was also fascinating. He was best friends with Hugo Black. Black was a literalist who believed the Constitution should be read exactly as written. Harlan was a "Due Process" guy who believed in evolving traditions. They fought like cats and dogs on the bench, but they had immense respect for each other.
What We Can Learn from Harlan Today
Today, the Supreme Court is more polarized than ever. Everything is viewed through a red vs. blue lens.
John Marshall Harlan II offers a different path.
He reminds us that you can disagree with a policy while still supporting the legal framework that allows it to exist. He reminds us that the process matters. In a world of "hot takes" and instant outrage, Harlan’s slow, methodical, and often boring approach to the law is actually pretty refreshing.
He was a man who understood his limits. He didn't think he was a king. He didn't think he was a social worker. He was a judge.
When he retired in 1971, just months before his death, he left behind a body of work that continues to influence how lawyers think about the 14th Amendment and the role of the federal government. He wasn't the "Great Dissenter" like his grandfather, but he was perhaps the "Great Intellectual" of the mid-century Court.
Practical Takeaways for Understanding the Judiciary
If you want to understand how the Supreme Court actually functions (or how it’s supposed to), start by reading Harlan.
- Focus on the "Standard of Review." Harlan always asked: "What is the specific legal authority for this action?" Before getting mad at a court ruling, look for the procedural reason behind it. Often, a "bad" result is the result of a "good" adherence to the law's limits.
- Value Federalism. Harlan believed that having 50 different "laboratories of democracy" was better than one-size-fits-all rules from D.C. This perspective is vital for understanding current debates on everything from healthcare to education.
- Protect Unpopular Speech. Follow Harlan’s lead in Cohen v. California. Realize that protecting the speech you hate is the only way to ensure the speech you love stays protected.
- Distinguish Policy from Law. Just because a law is "dumb" (as Harlan often said about the Connecticut birth control ban) doesn't mean it’s unconstitutional. The remedy for a dumb law is the voting booth, not the courtroom.
John Marshall Harlan II was a man of a different era, but his commitment to judicial integrity is more relevant now than it was when he was on the bench. He was a master of the craft, a defender of the institution, and a reminder that true conservatism isn't about stopping progress—it's about ensuring progress happens through the right channels.
Next Steps for Deepening Your Knowledge:
- Read the full opinion of Cohen v. California (1971). It is surprisingly readable and provides the best insight into Harlan’s view of the First Amendment.
- Compare his dissents in the "Incorporation" cases. Look at how he argued against applying the entire Bill of Rights to the states all at once, favoring a more gradual, "selective" approach.
- Study the "Great Dissenter." Research his grandfather, the first John Marshall Harlan, to see how the family legacy shaped (and differed from) the grandson’s judicial philosophy.