Profiles in Character #15: Justice John Marshall Harlan Dissents

On June 7, 1892, Homer Plessy boarded a “Whites Only” car of the East Louisiana Railroad in New Orleans.  He was told to move to the “blacks-only” car, refused and was arrested for violating the state’s Separate Car Act. His conviction in district court was upheld by the Louisiana Supreme Court and, on May 18, 1896, by a 7-1 decision of the U.S. Supreme Court.  That decision sanctioned and encouraged racial segregation for nearly six decades. Not until 1954’s Brown v. Board of Education decision would the Court begin overturning the “separate but equal” facilities doctrine that anchored the Plessy decision. 

The court’s unanimous decision in Brown rested on the argument of the lone dissenter in 1896, Justice John Marshall Harlan. Thurgood Marshall, who argued the Brown case and would later become the Court’s first African American justice, often turned to words in Harlan’s dissent for inspiration:

“ 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.”

Harlan would become known as the “Great Dissenter.”  In nearly 34 years on the Supreme Court, he wrote 316 dissents, including when the Court struck down the Civil Rights Act of 1875, which had banned discrimination in public accommodations.  After that dissent, he earned the admiration of the great abolitionist, Frederick Douglass, who wrote him saying “if I had means, I would cause it to be published in every newspaper and magazine in the land.”

In another notable case, Harlan in 1908 was again the lone dissenter in the Court’s decision upholding Kentucky’s Day Law, which banned integrated education in private schools:

“Have we become so inoculated with prejudice of race that an American Government, professedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of their voluntary meeting for innocent purposes simply because of their respective races?”

Harlan’s dissents, for which he earned the disdain of many contemporaries, seem especially noteworthy given that he was raised in Kentucky and was a slaveholder before the 13th Amendment forced him to free his slaves. He criticized that amendment as a “flagrant invasion of the right of self-government which deprived the states of the right to make their own policies.” He had previously criticized Lincoln’s Emancipation Proclamation as “unconstitutional and null and void.” Though Harlan enlisted in the Union Army, he said it was to save the Union and the war “was not for the purpose of giving freedom to the Negro.”

Understanding Harlan’s character thus has been a challenge for his biographers, but there are clues.  Harlan’s father, James, owned slaves but abhorred physical beatings, once publicly branding a whip-wielding man “a damned scoundrel.”  James also raised an enslaved boy, to whom he gave the name Robert Harlan (modern DNA evidence indicates the child was not his).  James had tried to send Robert to school with his eight children and was incensed when the boy was not allowed to attend.  Robert grew to become prominent and later worked with John in party politics. 

It’s quite likely, also, that John Marshall Harlan’s “conversion” was in part politically motivated.  He had once been a Whig, admiring the antislavery Henry Clay, but changed allegiances often after the Whig party faded into obscurity.  In 1859, a Lexington newspaper even commented that Harlan “accomplished as many somersaults in his brief career as any man in the country.”

After the Civil War, Harlan changed again and became a Republican, at least in part because that party held out the only real opportunities for advancement.  He was appalled by the rise of the Ku Klux Klan, and so the Republican U.S. Attorney, Benjamin Bristow, who prosecuted white terrorists became a close friend.  Indeed, when President Rutherford B. Hayes was unable to nominate Bristow for a Supreme Court vacancy in 1877 because of the latter’s aggressiveness, he turned to Harlan, who had campaigned for Hayes in the election of 1876.

Harlan’s dissents were also anchored in his Constitutional philosophy.  Once the Reconstruction Amendments were ratified, abolishing slavery and declaring all those born or naturalized as citizens whose “privileges and immunities” must be protected, Harlan felt bound by judicial oath to uphold them.

We prefer uniformly admirable historical heroes, but human character is rarely unblemished.   Jefferson owned slaves but wrote “all men are created equal.”  Lincoln freed the slaves but continued to believe in their inferiority.  Lyndon Johnson showed little interest in civil rights as a senator but as president led enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  John Marshall Harlan offers another example of what philosopher Immanuel Kant called the “crooked timber of humanity.” Of his “conversion” on the rights of African Americans, Harlan simply explained: “Let it be said that I am right rather than consistent.”

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