“Another’s Lyric”: John Marshall Harlan II, Judicial Conservatism, and Free Speech

  • Douglas E. Edlin


Justice John Marshall Harlan II was the grandson and namesake of a famous Supreme Court justice. His grandfather, the first Justice Harlan, is best remembered for dissenting alone from two of the Court’s most morally retrograde and socially reactionary decisions.1 The second Justice Harlan is often remembered for dissenting from decisions of the Warren Court, which is widely perceived as the most socially progressive Court in US history. Since he dissented from decisions of a liberal Court, and since he was nominated by President Dwight Eisenhower, a Republican, many conclude that the second Justice Harlan was a political and judicial conservative. Those conclusions are not contested in this chapter. But political conservatism and judicial conservatism are not the same thing. A study of the second Justice Harlan’s decisions concerning the right to freedom of speech and expression, when placed in the context of his broader approach to judging, can help us to appreciate the difference between judicial conservatism and political conservatism.


Political Ideology Free Speech Supreme Court Decision Free Expression Political Conservatism 
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  1. 6.
    See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Random House, 2007), 21Google Scholar
  2. 9.
    See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–348 (1936) (Brandeis, J., joined by Stone, Roberts, and Cardozo, JJ., concurring). The motivating idea here is that judges should make “an effort to minimize the judicial presence in American public life.” Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, MA: Harvard University Press, 1999), 39.Google Scholar
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    And Justice Harlan’s dissenting opinions did influence the development of the law. See, for example, Planned Parenthood v. Casey, 505 U.S. 833, 848–849 (1992); Teague v. Lane, 489 U.S. 288, 303–310 (1989); Griffith v. Kentucky, 479 U.S. 314, 322–323 (1987); Moore v. City of East Cleveland, 431 U.S. 494, 500–506 (1977). See also Martha A. Field, “Justice Harlan’s Legal Process”, New York Law School Law Review 36 (1991): 162.Google Scholar

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© Helen J. Knowles and Steven B. Lichtman 2015

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  • Douglas E. Edlin

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