John Marshall Harlan (1833-1911)

John Marshall Harlan was born in Kentucky on June 1, 1833. Harlan was raised in comfortable circumstances, and his family was a slaveholding family. As a young man, Harlan himself briefly owned slaves, although he later turned against the institution of slavery. Harlan's father was a lawyer and active in Kentucky Whig politics. In 1850, Harlan graduated from Centre College. He then spent two years studying law at Transylvania University. He returned to his father's law office to complete his law studies and became a member of the Kentucky bar in 1853. Shortly before the Civil War began, Harlan served as a county judge, winning election on a Know Nothing ticket. The Know Nothings were a nativist (anti-immigrant) party that enjoyed a brief spell of popularity between the collapse of the Whig party and the rise of the Republican party. When the War began, Kentucky remained in the Union, although it was a slave state. Harlan joined the United States Army as a lieutenant colonel. Harlan remained in the Army until his father's death in 1863. Harlan became Kentucky Attorney General in 1864, and campaigned for George McClellan against Abraham Lincoln in the presidential election of that year. As a post-War Republican, twice lost election as Governor of Kentucky (1871 and 1875). In 1876, Harlan's law partner Benjamin Bristow ran for the Republican presidential nomination, and Harlan led the Kentucky delegation at the convention. Kentucky's switch to Rutherford B. Hayes cemented Hayes's nomination. The election of 1876 was, like the election of 2000, hotly contested. The result in 1876 was the creation of an electoral commission (see the biography of Joseph Bradley for details). After Hayes was declared the winner, he appointed a commission to determine which of two Louisiana governments was the lawful government, one of whose members was Harlan. The acquiescence of Democrats to Hayes's inauguration included an implicit promise to end Reconstruction. The Louisiana Commission aided that promise by declaring that the Democrats were the lawful government in Louisiana. The problem with this conclusion was that the same board that certified an electoral victory for Hayes in the presidential contest also declared the Republicans the winners of the state contest in Louisiana.

During the tussle involving the electoral commission, Justice David Davis resigned to become a Senator from Illinois (remember, Senators were appointed by state legislatures at this time. Direct election of Senators would not occur until after ratification of the 17th Amendment in 1913). Hayes wanted to appoint a southerner, and Harlan fit the bill. He was 44 when appointed to the Court.

Harlan's legacy is in his dissents. He dissented in The Civil Rights Cases (1883), which, as suggested by his wife Malvina, was written by the same pen as Roger Brooke Taney used to write Dred Scott, and in Plessy v. Ferguson (1896), the latter of which included prescient assessments about history's judgment of the case. He also dissented in Lochner v. New York (1905), declaring the law concerning maximum hours a reasonable law, and in the Income Tax Cases, later overruled by the ratification of the 16th Amendment.. But he was not a precursor of the 20th century liberal. Harlan left a very mixed legacy on substantive due process, writing the Court's opinion in another reviled case, Adair v. United States (1908)(holding unconstitutional a "yellow dog" contractual provision, which barred interstate railroads from conditioning employment on agreement by the worker not to join a union).

Harlan was a very religious man, and it has been persuasively argued that Harlan's Presbyterian faith explains well his jurisprudence.

Harlan served on the Court for slightly less than 34 years, one of the longest tenures in the history of the Court. Harlan's namesake grandson John Marshall Harlan was also a member of the Court.

Harlan was married to Malvina Shanklin in 1856, whose memoirs (Some Memories of a Long Life, 1854-1911) regarding her family, husband and life in Kentucky and Washington have recently been published, thanks to Justice Ruth Bader Ginsburg. They were the parents of six children. He died on October 14, 1911.

Further reading: Linda Przybyszewski, The Republic According to John Marshall Harlan (1999).