Today in Supreme Court History: December 29, 1971

12/29/1971: Justice John Marshall Harlan II dies.

Justice John Marshall Harlan II

 

Comments

[Commenter_XY]

Wow, I never knew that much about Justice Harlan II.
https://en.wikipedia.org/wiki/John_Marshall_Harlan_II

That time period, 1955-71, had some blockbuster cases. It was neat to read a little more about him.

[Dan Schiavetta]

I remember him, and reading the long obituary in the New York Times.

He was called the "conservative conscience" of the Court. Usually on the wrong side of things, but making good points. In Wesberry v. Sanders, 1964, where the Court said House representation must be based on "one person, one vote", he made the reasonable points that 1) one-district states have less people per district than the Georgia districts at issue, and 2) the Court can't tell Congress how to constitute itself. In Orozaco v. Texas, he agreed with a MIranda-related result, feeling bound by Miranda even though he had dissented in that case. Few Justices today would be principled enough to feel compelled to follow precedents they felt were wrongly decided, let alone where they were on the bench at the time.

[Dan Schiavetta]

Sorry for the formatting error

[JoeFromtheBronx]

Justice John Marshall Harlan supported the incorporation of the Bill of Rights, while his grandson, Justice John Marshall Harlan II, did not. The middle John was John Maynard Harlan.

===

Justice Sotomayor vacated an administrative stay (temporary to let the matter be examined) on 12/29/22 in Gigi Jordan v. Amy Lamanna, Superintendent Bedford Hills Correction Facility.

Jean Harris, the Convicted Scarsdale Diet Doctor Killer, was previously imprisoned there.

Gigi Jordan was convicted of manslaughter for killing her autistic child. She claimed it was for his protection [you can research to find more details of the whole convoluted story]. The immediate appeal involved a claim her right to a public trial was violated.

Jordan was out on bail but Sotomayor's decision meant she would likely have to go to prison. She committed suicide instead.

(One article noted: "Jordan was sprung from prison on Dec. 9, 2020, after serving more than 10 years of her sentence. At the time, a federal judge ordered her released to home confinement on a $250,000 bond as her case played out.")

Gigi Jordan was a millionaire pharmaceutical executive adding to the soap opera nature of the whole thing. I wonder if it was made into a Law & Order episode.

[Dan Schiavetta]

Parisi v. Davidson, 396 U.S. 1233 (decided December 29, 1969): Douglas denies stay of Vietnam deployment of man who appealed denial of conscientious objector status; man would not be assigned combat duty or training, and his duties (he was a “psychological counselor”) would be no different there than stateside

[F.D. Wolf]

As probably the most conservative member of the Warren Court, Harlan frequently found himself in dissent. Despite this, he was well liked by his colleagues on the Court. He frequently dined with the cantankerous Justice Hugo Black, who once said, "John Harlan is one of the few people who convince me there is such a thing as a good Republican." Jurisprudentially, Harlan was perhaps most closely aligned with Justice Felix Frankfurter, but lacked Frankfurter's often acerbic nature, leading to his being known around the Court as "Frankfurter without the mustard."

[The Margrave of Azilia]

"the most conservative member of the Warren Court"

Talk about the tallest midget! See below for my preferred word in describing Harlan.

[JoeFromtheBronx]

Christopher Plummer, not singing this time, played John Marshall Harlan II in Muhammed Ali's Greatest Fight.

https://www.imdb.com/title/tt2061756/

[The Margrave of Azilia]

Sprung on a technicality - God Bless America! No joke.

[F.D. Wolf]

I saw the movie. Frankly, I thought it was pretty bad, despite good performances by Frank Langella as Chief Justice Burger and Plummer as Justice Harlan.

It tells the story of Clay v. United States, 403 U.S. 698 (1971). After boxing great Muhammad Ali (aka Cassius Clay) was drafted, he applied for conscientious objector status but was denied. He was charged and convicted for refusing induction into the armed forces, receiving the maximum sentence of 5 years and a $10,000 fine, despite having no prior criminal record. The Fifth Circuit affirmed, and the case was appealed to the Supreme Court.

At conference, the initial vote was 5-3 to affirm the conviction. (Justice Marshall had recused himself, having been Solicitor General when the case had begun). Chief Justice Burger assigned the opinion to Harlan. While working on the opinion, Harlan changed his mind, leaving the Court deadlocked 4-4. Justice Potter Stewart proposed a compromise.

To claim conscientious objector status, an applicant had to show that (1) his belief was sincere and genuine; (2) his belief was based on religious training; and (3) he objected to ALL wars, not just a particular war. The government conceded the first two requirements, but argued that Ali, by his own admission, had stated he would fight in a hypothetical war in defense of Muslims.

Stewart's proposed compromise was to dismiss the case on the grounds that the government, in rejecting Ali's application, had not informed Ali exactly WHY his application had been rejected. The Court issued an 8-0 per curiam opinion to that effect. (In the movie, Burger is the last holdout).

The Court might have instead based a reversal on Sicurella v. United States, 348 U.S. 385 (1955). That case involved a Jehovah's Witness claiming conscientious objector status, despite conceding he would go to war if God commanded him to. In a 6-2 opinion, the Court held the objection to all wars need not include hypothetical "theological" wars.

[JoeFromtheBronx]

The film wasn't that good, imho, but it was amusing to see the Supreme Court portrayed behind the scenes.

Justice Harlan concurred in result:

I concur in the result on the following ground. The Department of Justice advice letter was at least susceptible of the reading that petitioner's proof of sincerity was insufficient as a matter of law because his conscientious objector claim had not been timely asserted. This would have been erroneous advice had the Department's letter been so read. Since the Appeals Board might have acted on such an interpretation of the letter, reversal is required under Sicurella v. United States, 348 U.S. 385 (1955).

Justice Douglas also wrote a concurrence citing Sicurella v. United States. Justice Stevens later talked about The Brethren's discussion about it here:

https://www.supremecourt.gov/publicinfo/speeches/JPS_Speech_Arlington_County_Bar_Association_06-10-2016.pdf

[F.D. Wolf]

Thank you for the link. That was an interesting read.

[The Margrave of Azilia]

It sounds unlikely that Douglas would have tolerated insubordination in a clerk. He was not a warm, cuddly guy.

[The Margrave of Azilia]

Harlan II was one of the moderate justices on the Warren Court. Of course, some people wouldn't put it that way because it implies Warren and the liberals *weren't* moderate.

Even though moderates can be wrong, and "extremists" can be right, veneration for moderation is such a significant trait among many Americans that they are loath to surrender the precious m word to anyone who isn't them.

[JoeFromtheBronx]

Many wouldn't put it that way since he was a conservative. Both in word and deed. He was a moderate conservative. Still, especially in comparison, his conservative side stood out.

The Warren Court had Frankfurter, Clark, and Whittaker. He wasn't the only conservative-leaning justice. Byron White repeatedly dissented, particularly on criminal justice issues. Stewart was a moderate. He dissented less often than others.

Brennan on the Warren Court was a moderate liberal. He took a moderate line on obscenity, didn't oppose the death penalty, and supported warrantless blood draws while Warren dissented.

He became more liberal and strident later on. So, people don't think of him as a moderate liberal on the Warren Court.

OTOH, in context, he was.

[The Margrave of Azilia]

Are we talking about the same John Marshall Harlan who affirmed a constitutional right to birth control before the rest of the Court got around to it?

Go ahead and call Harlan "moderate" - it won't hurt. Add "conservative" if you want. Because, of course, any moderate Justice would look conservative next to the Warren Court majority.

Good point about the Warren Court Brennan and the post-Warren-court Brennan.

[Bob from Ohio]

Ike's only good SCOTUS pick. A great justice. RIP

[Commenter_XY]

RIP President James Earl Carter. May your memory be as a blessing.

[not guilty]

Here is a (mostly) laudatory editorial about Jimmy Carter from the New York Times: https://www.nytimes.com/2024/12/29/opinion/editorials/jimmy-carter-death-editorial.html

He is far and away the most decent man to hold the presidency since World War II.