John Marshall Harlan II - Supreme Court Career

Supreme Court Career

On January 13, 1954, United States President Dwight D. Eisenhower nominated Harlan to the United States Court of Appeals for the Second Circuit, to fill a vacancy created by the death of Judge Augustus Noble Hand. He was confirmed by the United States Senate on February 9, and took office on February 10. Harlan knew this court well, as he had often appeared before it and was friendly with many of the judges. However, his stay on the court only lasted for a year. On January 10, 1955, President Eisenhower nominated Harlan to the United States Supreme Court following the death of Justice Robert H. Jackson. On being nominated, the reticent Harlan called reporters into his chambers in New York, and stated, in full, "I am very deeply honored." Despite the brevity of his stay on the Second Circuit, Harlan would serve as the Circuit Justice responsible for the Second Circuit throughout his Supreme Court capacity, and, in that capacity, would enjoyably attend the Circuit's annual conference, bringing his wife and catching up on the latest gossip.

Harlan's nomination came shortly after the Supreme Court handed down its landmark decision in Brown v. Board of Education, declaring segregation in public schools unconstitutional. Chairman of the United States Senate Committee on the Judiciary, James Eastland, and several southern senators delayed his confirmation, because they (correctly) believed that he would support desegregation of the schools and civil rights. Unlike almost all previous Supreme Court nominees, Harlan appeared before the Senate Judiciary Committee to answer questions relating to his judicial views. Every Supreme Court nominee since Harlan has been questioned by the Judiciary Committee before confirmation. The Senate finally confirmed him on March 17, 1955 by a vote of 71–11. He took seat on March 28, 1955. Of the eleven senators who voted against his appointment, nine were from the South. He was replaced on the Second Circuit by Joseph Edward Lumbard.

On the Supreme Court, Harlan often voted alongside Justice Felix Frankfurter, who was his principal mentor on the court. Some legal scholars even viewed him as "Frankfurter without mustard", though others recognize his own important contributions to the evolution of the legal thought. Harlan was an ideological adversary—but close personal friend—of Justice Hugo Black, with whom he disagreed on a variety of issues, including the applicability of the Bill of Rights to the states, the Due Process Clause, and the Equal Protection Clause.

Justice Harlan was very close to the law clerks whom he hired, and continued to take an interest in them after they left his chambers to continue their legal careers. The justice would advise them on their careers, hold annual reunions, and place pictures of their children on his chambers' walls. He would say to them of the Warren Court, "We must consider this only temporary," that the Court had gone astray, but would soon right itself.

Justice Harlan is remembered by people, who worked with him, for his tolerance and civility. He treated his fellow Justices, clerks and attorneys representing parties with respect and consideration. While Justice Harlan often strongly objected to certain conclusions and arguments, he never criticized other justices or anybody else personally, and never said any disparaging words about someone's motivations and capacity. Harlan was reluctant to show emotion, and was never heard to complain about anything. Harlan was one of the intellectual leaders of the Warren Court. Harvard Constitutional law expert Paul Freund said of him:

His thinking threw light in a very introspective way on the entire process of the judicial function. His decisions, beyond just the vote they represented, were sufficiently philosophical to be of enduring interest. He decided the case before him with that respect for its particulars, its special features, that marks alike the honest artist and the just judge.