The US Supreme Court’s ‘Great Dissenter’ repudiated ‘separate but equal’

Ruth Bader Ginsburg’s muscular dissents on the U.S. Supreme Court made her a liberal icon whose face graces mugs, magnets, and a million memes.

If the power of one’s dissents is the measure of a justice’s greatness, then John Marshall Harlan, who served on the court between 1877 and 1911, deserves a much bigger tribute. That’s the takeaway from a sympathetic and well-written new biography, “The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero,” by Peter S. Canellos, an editor at Politico and a former Boston Globe editor.

“In the history of the Supreme Court, there is no parallel to Harlan’s career,” Canellos writes. “There have been other passionate dissenters and other famous dissents. But no one stood so consistently against his brethren, only to be vindicated in later times.”

Canellos portrays Harlan as a man of principle often standing alone against some of the worst-ever Supreme Court decisions. At the height of the Gilded Age, Harlan came down on the side of breaking up corporate monopolies, instituting an income tax, and protecting children and other exploited workers. He sought to apply U.S. law equally to newly acquired colonies in Hawaii, the Philippines, and Puerto Rico.

Harlan most notably decried the fiction of “separate but equal” treatment for Black citizens in his 1896 dissent in Plessy v. Ferguson. What makes his civil rights opinions all the more noteworthy is that Harlan was born into a slave-owning family in the border state of Kentucky.

Law was the family business for the Harlans: his father served as Kentucky’s attorney general and named Harlan after his hero, the nation’s fourth chief justice, John Marshall. Harlan’s namesake grandson, John Marshall Harlan II, also later served on the U.S. Supreme Court.

Harlan helped convince Kentucky to stay in the Union but was infuriated when President Abraham Lincoln emancipated slaves without giving his state any say in the matter. He was even more horrified by the mob violence directed at the newly freed men and women.

Harlan, like his father, served as Kentucky attorney general and helped Rutherford Hayes secure his party’s presidential nomination at the 1876 Republican convention. Once elected, Hayes turned to Harlan when he sought to appoint a southern justice as Reconstruction ended.

This was an era when justices rarely dissented, but that didn’t stop Harlan from first objecting vigorously in a set of five civil rights cases in 1883. Harlan rejected the majority’s interpretation that new protections afforded by the Fourteenth Amendment limited only state rather than private action, leaving innkeepers, railroad officials, and theater owners free to discriminate.

In explaining Harlan’s willingness to stand alone on race, Canellos credits his religious faith, reverence for the Constitution, and close ties to an enslaved man named Robert, whom Canellos says the Harlans treated like a member of the family. Robert may have been a blood relative, resulting from a relationship between Harlan’s father and an enslaved woman.

Robert Harlan is undeniably a fascinating character who made a fortune in the California gold rush, lost a fortune racing horses in England, and served as a state legislator in Ohio. Canellos asserts that Robert’s many accomplishments shaped the Harlan family’s “perceptions of what blacks could achieve in freedom.” What remains unknown, despite Canellos’ best efforts, is how much Robert directly influenced or interacted with Harlan, particularly once he joined the court.

Some of the ink devoted to Robert might have been better spent further exploring the Harlans’ complex and often paternalistic attitude towards the family’s other enslaved workers. Canellos leaves out unflattering details noted by earlier biographers that implicate Harlan more directly as a slaveholder.

Prominent Black Americans didn’t hold Harlan’s history with slaveholding against him during his lifetime. Black statesman Frederick Douglass called him a “moral hero” and the author notes Harlan’s death was mourned in the Black press as “an epic passage.” The Washington Bee observed, “we cannot help but tremble, and fear that no one after him may dissent against decisions against our race.”

Canellos acknowledges criticism directed at Harlan by modern legal scholars for joining the majority in rulings, including ones detrimental to Black public education and problematic for Chinese immigrants. But he puts the best possible gloss on court opinions readers today might think Harlan got wrong. This biography focuses more on making the case for Harlan’s greatness than harping on the occasional inconsistency or shortcoming.

Harlan was undeniably on the right side of the history more often than not. His Plessy dissent, along with many others, would ultimately become the basis for future Supreme Court majority opinions, including Brown v. Board of Education, the unanimous 1954 decision ruling segregated schools were unconstitutional.

Seth Stern is a Bloomberg Law editor and co-author of Justice Brennan: Liberal Champion.