Harlan's jurisprudence is often characterized as conservative. He held
precedent to be of great importance, adhering to the principle of
stare decisis more closely than many of his Supreme Court colleagues. Harlan believed that most problems should be solved by the
political process, and that the judiciary should play only a limited role. he wrote: 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. He wrote the plurality opinion in
Manual Enterprises, Inc. v. Day, ruling that photographs of nude men are not obscene, one of the first major victories for the
early gay rights movement. Despite Harlan's conservatism, he opposed the
Vietnam War and along with Justices
William O. Douglas,
Potter Stewart and
William J. Brennan Jr. unsuccessfully pushed for the Court to hear challenges to its legality.
Equal Protection Clause The Supreme Court decided several important equal protection cases during the first years of Harlan's career. In these cases, Harlan regularly voted in favor of civil rights—similar to his grandfather, the only dissenting justice in the infamous
Plessy v. Ferguson case. He voted with the majority in
Cooper v. Aaron, compelling defiant officials in
Arkansas to
desegregate public schools. He joined the opinion in
Gomillion v. Lightfoot, which declared that states could not redraw political boundaries in order to reduce the voting power of
African Americans. Moreover, he joined the unanimous decision in
Loving v. Virginia, which struck down state laws that banned interracial marriage.
Due Process Clause Justice Harlan advocated a broad interpretation of the Fourteenth Amendment's Due Process Clause. He subscribed to the doctrine that the clause not only provided procedural guarantees, but also protected a wide range of fundamental rights, including those that were not specifically mentioned in the text of the Constitution. (See
substantive due process.) However, as Justice
Byron White noted in his
dissenting opinion in
Moore v. East Cleveland, "no one was more sensitive than Mr. Justice Harlan to any suggestion that his approach to the Due Process Clause would lead to judges 'roaming at large in the constitutional field'." Under Harlan's approach, judges would be limited in the Due Process area by "respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of
federalism and
separation of powers have played in establishing and preserving American freedoms". Harlan set forth his interpretation in an often cited dissenting opinion to
Poe v. Ullman, which involved a challenge to a
Connecticut law banning the use of
contraceptives. The Supreme Court dismissed the case on technical grounds, holding that the case was not
ripe for adjudication. Justice Harlan dissented from the dismissal, suggesting that the Court should have considered the merits of the case. Thereafter, he indicated his support for a broad view of the due process clause's reference to "liberty". He wrote, "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." The same law was challenged again in
Griswold v. Connecticut. and
Lawrence v. Texas. Harlan's interpretation of the Due Process Clause attracted the criticism of Justice Black, who rejected the idea that the Clause included a "substantive" component, considering this interpretation unjustifiably broad and historically unsound, one of the few issues in which Black was more conservative than Harlan. The Supreme Court has agreed with Harlan, and has continued to apply the doctrine of substantive due process in a wide variety of cases.
Incorporation Justice Harlan was strongly opposed to the theory that the Fourteenth Amendment "incorporated" the Bill of Rights—that is, made the provisions of the Bill of Rights applicable to the states. When it was originally ratified, the Bill of Rights was binding only upon the federal government, as the Supreme Court ruled in the 1833 case
Barron v. Baltimore. Some jurists argued that the Fourteenth Amendment made the entirety of the Bill of Rights binding upon the states as well. Harlan, however, rejected this doctrine, which he called "historically unfounded" in his
Griswold concurrence.
First Amendment Justice Harlan supported many of the Warren Court's landmark decisions relating to the
separation of church and state. For instance, he voted in favor of the Court's ruling that the states could not use religious tests as qualifications for public office in
Torcaso v. Watkins. He joined in
Engel v. Vitale, which declared that it was unconstitutional for states to require the recitation of official
prayers in public schools. In
Epperson v. Arkansas, he similarly voted to strike down an Arkansas law banning the teaching of
evolution. In many cases, Harlan took a fairly broad view of First Amendment rights such as the freedom of speech and of the press, although he thought that the First Amendment applied directly only to the federal government. According to Harlan the freedom of speech was among the "fundamental principles of liberty and justice" and therefore applicable also to states, but less stringently than to the national government. Moreover, Justice Harlan believed that federal laws censoring "obscene" publications violated the free speech clause. in which the Supreme Court upheld the validity of a federal obscenity law. At the same time, Harlan did not believe that the Constitution prevented the states from censoring obscenity. He explained in his
Roth dissent: The danger is perhaps not great if the people of one State, through their legislature, decide that ''
Lady Chatterley's Lover goes so far beyond the acceptable standards of candor that it will be deemed offensive and non-sellable, for the State next door is still free to make its own choice. At least we do not have one uniform standard. But the dangers to free thought and expression are truly great if the Federal Government imposes a blanket ban over the Nation on such a book. ... The fact that the people of one State cannot read some of the works of D. H. Lawrence seems to me, if not wise or desirable, at least acceptable. But that no person in the United States should be allowed to do so seems to me to be intolerable, and violative of both the letter and spirit of the First Amendment. which required public officials suing newspapers for libel to prove that the publisher had acted with "actual malice." This stringent standard made it much more difficult for public officials to win libel cases. He did not, however, go as far as Justices Hugo Black and William O. Douglas, who suggested that all libel laws were unconstitutional. In Street v. New York'', Harlan wrote the opinion of the court, ruling that the government could not punish an individual for insulting the
American flag. In 1969 he noted that the Supreme Court had consistently "rejected all manner of prior restraint on publication." When Harlan was a Circuit Judge in 1955, he authorized the decision upholding the conviction of leaders of the
Communist Party USA (including
Elizabeth Gurley Flynn) under the
Smith Act. The ruling was based on the previous Supreme Court's decisions, by which the Court of Appeals was bound. Later, when he was a Supreme Court justice, Harlan, however, wrote an opinion overturning the conviction of Communist Party activists as unconstitutional in the case of
Yates v. United States. Another such case was
Watkins v. United States. Harlan penned the
majority opinion in
Cohen v. California, holding that wearing a jacket emblazoned with the words "Fuck the
Draft" was speech protected by the First Amendment. His opinion was later described by constitutional law expert Professor
Yale Kamisar as one of the greatest ever written on freedom of expression. Justice Harlan is credited for establishing that the First Amendment protects the freedom of association. Justice Harlan delivered the opinion of the court, invalidating an Alabama law that required the
NAACP to disclose membership lists. which controversially upheld a trespassing conviction for protesters who demonstrated on government property. He dissented from
Brown v. Louisiana, in which the Court held that protesters were entitled to engage in a sit-in at a public library. Likewise, he disagreed with
Tinker v. Des Moines, in which the Supreme Court ruled that students had the right to wear armbands (as a form of protest) in public schools.
Criminal procedure During the 1960s the Warren Court made a series of rulings expanding the rights of criminal
defendants. In some instances, Justice Harlan concurred in the result, while in many other cases he found himself in dissent. Harlan was usually joined by the other moderate members of the Court: Justices
Potter Stewart,
Tom Clark, and
Byron White. Most notably, Harlan dissented from Supreme Court rulings restricting
interrogation techniques used by law enforcement officers. For example, he dissented from the Court's holding in
Escobedo v. Illinois, that the police could not refuse to honor a suspect's request to consult with his lawyer during an interrogation. Harlan called the rule "ill-conceived" and suggested that it "unjustifiably fetters perfectly legitimate methods of criminal law enforcement." He disagreed with
Miranda v. Arizona, which required law enforcement officials to warn a suspect of his rights before questioning him (see
Miranda warning). He closed his dissenting opinion with a quotation from his predecessor, Justice Robert H. 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." Harlan wrote the majority opinion in
Leary v. United States—a case that declared the
Marijuana Tax Act unconstitutional based on the
Fifth Amendment protection against
self-incrimination. Justice Harlan's concurrence in
Katz v. United States set forth the test for determining whether government conduct constituted a
search. In this case the Supreme Court held that
eavesdropping on the
petitioner's telephone conversation constituted a search in the meaning of the Fourth Amendment and thus required a
warrant. In this regard, he shared the views of Justice Felix Frankfurter, who in
Colegrove v. Green admonished the courts to stay out of the "political thicket" of
reapportionment. The Supreme Court, however, disagreed with Harlan in a series of rulings during the 1960s. The first case in this line of rulings was
Baker v. Carr. The Court ruled that the courts had
jurisdiction over
malapportionment issues and therefore were entitled to review the validity of district boundaries. Harlan, however, dissented, on the grounds that the plaintiffs failed to demonstrate that malapportionment violated their individual rights. the Supreme Court, relying on the Constitution's requirement that the
United States House of Representatives be elected "by the People of the several States," ruled that
congressional districts in any particular state must be approximately equal in population. Harlan vigorously dissented, writing, "I had not expected to witness the day when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives. It is not an exaggeration to say that such is the effect of today's decision." in which the Court held that voter qualifications were subject to scrutiny under the equal protection clause. He claimed in his dissent, "the Court totally ignores, as it did in last Term's reapportionment cases ... all the history of the Fourteenth Amendment and the course of judicial decisions which together plainly show that the Equal Protection Clause was not intended to touch state electoral matters." invalidating the use of the
poll tax as a qualification to vote. ==Retirement and death==