Remembering the Great Dissenter

In his excellent forthcoming book, The Credentialed Court: Inside the Cloistered, Elite World of American Justice, my colleague Ben Barton engages in a sweeping data-crunching analysis across the biographies of every Supreme Court justice in order to conclude that Supreme Court justices used to be more interesting than they are today, and that made them much better at their jobs than are today’s credentialed judicial thoroughbreds.

In a different way, Peter S. Canellos’ The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero makes the same argument, though via an in-depth dive into one justice’s life. As Canellos’ biography illustrates, Harlan (the first justice by that name, not to be confused with his grandson John Marshall Harlan, who also served on the Court) was both a very interesting man and a great justice with a connection between the two. Compared to his colleagues, Canellos writes, Harlan was different: He saw things they did not, and he acted on impulses they didn’t share. He was different because his life was different. “Among jurists, he alone expressed the view that when rights are denied to one group, it endangers the protections of all. He alone believed that sowing ‘the seeds of race hate’ in the law would cripple the nation for generations to come.”

And as Canellos also notes, a candidate like Harlan would never make it through today’s justice-vetting process.  Today’s candidates start planning their Court nominations while still in law school, and are careful not to leave a damaging paper trail. Harlan ran for office and issued multiple political endorsements, while making public statements that were controversial in their time and that sometimes (as with his support for Democrat Gen. George McClellan for President in 1864) played badly with his own party. To be fair, the American bar probably doesn’t produce any candidates like Harlan today anyway. This lack is a loss both for the Court and for the bar, and no doubt for America as well.

Harlan was born into a family of Kentucky aristocrats, his father James a successful lawyer. One of a numerous brood, he was not at first glance the most likely to succeed. But under his father’s strict discipline, he studied, learned, and soon aimed for a career in the law.

But there was something about his household that was different from most. Raised alongside the other Harlan boys was John’s brother Robert, a half-black mulatto generally believed (though never publicly acknowledged) to be the product of a relationship between James and a female slave. Throughout John’s life, Robertwhose career was in some ways more remarkable than John’s—stood as a reminder that the many slurs cast at the abilities of black Americans were unfounded. Indeed, Robert Harlan’s colorful career, involving many businesses—after successfully prospecting for gold in 1849, he became the wealthiest Harlan—a horse-racing venture in London, several elective offices, and the command of a regiment of colored militia in Ohio, almost steals the spotlight from John throughout the book.

John Marshall Harlan’s life was remarkable enough. He was a politician, standing for office in the rough-and-tumble world of antebellum Kentucky politics, where issues of race and class loomed large (and sometimes at cross-purposes) and where dueling sometimes still settled disputes. He commanded a Union regiment during the Civil War, was at Shiloh, and after some of his men were killed by Confederate sympathizers, he took hostages whom he threatened to execute if it happened again (It didn’t). His family owned slaves, but he was burned nearly to death trying to save one from a fire. He strongly supported the Union but spent years trying to promote compromise between the North and South. He represented rich and powerful clients in his law practice but retained an eye for the problems of the less fortunate, perhaps because of his exposure to other perspectives in his youth.

Of course, Harlan is remembered for none of those things today, really. Canellos’ survey of his pre-Supreme Court career is thorough and interesting, not only for what it reveals about Harlan’s life, but for the many portrayals it offers of life in a vanished era. Kentucky in the first half of the 19th century was still something of a frontier state, but with a well-established local aristocracy, along with traditions in horse-racing, distilling, and of course, slavery. And it is for Harlan’s views on slavery, and the Jim Crow era that followed its abolition, that he is largely remembered today.

Harlan reached the Court at an early age. His first few years were not especially memorable. As Canellos writes, “Five years after his confirmation it still wasn’t clear which John Harlan had arrived on the bench: the renowned backer of compromises or the man who had thoroughly committed himself to equal protection and due process of the law.” 

But though Harlan was affable, and always sought good relations with both political friends and adversaries, there was something different about him, according to Canellos,

Officers from Massachusetts or New York had headed off to war in plumed uniforms to the sound of marching bands and a rainbow of confetti; young John Harlan had faced the unforgiving enmity of his former friends while taking up arms against his neighbors. In Frankfort, Kentucky he ordered the shelling of his own neighborhood to root out insurgents.

The Civil War, and the awful years before it when opinion divided in Kentucky and across the nation, gave Harlan a horror of division. But the price paid in that war steeled him against giving ground where the rights of individuals were concerned—particularly those of the blacks whom the war was supposed to have liberated.

Unfortunately, most of the country had taken a different lesson. By the time Harlan reached the bench, the South was already doing its best to return things as closely as possible to the status quo antebellum. In the North, meanwhile, there was limited love for the recently freed slaves, and a sense that there had already been enough sacrifice. Healing the war’s divisions—which in practice meant giving the former Confederate states a great deal of autonomy—was the top priority.

Read Canellos’s book and appreciate the great man it describes. Then wonder why today’s America does not create such men (or women) anymore.

It was in this setting that the Supreme Court shamefully neutered the Civil Rights Act of 1875. Harlan’s dissent in the Civil Rights Cases was actually written with the pen used by Chief Justice Taney to write the infamous Dred Scott opinion and called out his colleagues for abandoning the spirit and letter of the Fourteenth Amendment. “The supreme law of the land,” he wrote, “has decreed that no authority shall be exercised upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude.” 

Still more famous, of course, is his dissent in the 1896 “separate but equal” case of Plessy v. Ferguson. Homer Plessy, a man of part-African descent, sat in the “Whites Only” car created by a new Louisiana statute mandating segregated rail facilities. After being removed pursuant to the law, he sued, charging among other things a violation of his Equal Protection rights under the Fourteenth Amendment. The majority famously found no violation of equal protection so long as the facilities, separated by race, were (allegedly) equal.

Harlan’s blistering dissent in  Plessy was widely read in the pulpits of black churches around the nation and its focus on racial equality and the color-blind nature of the Fourteenth Amendment became the foundation for the winning argument in Brown v. Board of Education, which undid Plessy over a half-century later.

Harlan wrote: “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case” (He was right about that).  He added,  

In view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

This ringing statement of racial and social equality was radical at the time, when it was taken for granted by many, if not most, that the races were too different to live together, and must have their relations closely managed by the hand of government.

If Harlan’s position was radical then, it went on to become conventional wisdom decades later. But it is increasingly radical now, at a time when, once again, many in positions of leadership in our universities, our corporations, and even in our governments seem to believe that the differences between the races are insoluble and can only be managed by the overweening hand of authority. To the extent that “woke” politics and Critical Race Theory lead us to the same view of racial relations as was held by 19th-century Jim Crow theorists, I, like Harlan, must register my dissent.

How we got to this point is beyond the scope of Cannelos’ book but may puzzle future historians. At any rate, I found The Great Dissenter to be fascinating reading, and actually something of a page-turner. Although the book is rather long, it is packed with narratives and vignettes and historical documents, as befits a book trying to explain a long, and unorthodox, career in the law. Read it and appreciate the great man it describes. Then wonder why today’s America does not create such men (or women) anymore.