The late Ruth Bader Ginsburg’s dissent collar is a small part of a larger history. Unlike some other high courts, the US supreme court accepts strong dissent. Ginsburg stood in the tradition of John Marshall Harlan – the only justice with the courage, foresight, humanity and constitutional vision to object to the odious 1896 Plessy v Ferguson decision that approved racial segregation.
The road to that dissent was long. Harlan was named for a former chief justice and his father instilled a love for the union and constitution, even as the Kentucky family owned enslaved people. After the civil war, Harlan embraced the Reconstruction amendments guaranteeing civil rights and equal protection.
Peter Canellos’s superb biography expands on a little-remembered fact: Harlan had a Black likely half-brother, Robert. Born in slavery but raised “as a member of the family”, Robert gained freedom and achieved prominence as a businessman, opening a store during California’s gold rush and purchasing properties in Cincinnati. An “excellent judge” and owner of racehorses, he was a leader of the Black community in Cincinnati and nationally.
Robert remained close to the family and some well-timed interventions, not least at the Republican convention in 1876, furthered John’s career. Canellos illustrates not only two remarkable lives but also the law as a force for good – or evil.
Appointed by Rutherford Hayes in 1877, Harlan began his dissenting career in the Civil Rights Cases in 1883, a test of whether places of public accommodation were required to serve all customers. The majority held the 14th amendment applied only to the states, thus permitting businesses to discriminate.
Using the inkwell Chief Justice Roger Taney used to write the 1857 Dred Scott decision that denied Black Americans could be citizens, Harlan penned a strong dissent. He simply wanted Congress to have the powers for civil rights it once exercised “for the protection of slavery and the masters of fugitive slaves”.
The dissents kept coming: EC Knight, which approved the sugar trust; Pollock, which rejected Congress’s attempt to impose an income tax on the wealthy; the Insular Cases, where Harlan argued the full constitution applied in the multiracial territories acquired after the Spanish-American War in 1898 (a dissent relevant in recent cases about Guantánamo Bay); Lochner v New York, which overturned a law limiting bakers’ working hours; Berea v Kentucky, upholding segregation in education.
A rare discordant note involved Wong Kim Ark, where Harlan dissented on whether a Chinese subject born in the US had birthright citizenship. He argued the parents had to seek American nationality – but told students he would have ruled the same way about a white European. He also upheld a case (Chae Chan Ping) involving the Chinese Exclusion Act, noting Congress’s power to abrogate a treaty, but joined the majority in overturning a California law discriminating against Chinese-owned businesses and supported the rights of a Japanese Hawaiian in Hawaii v Mankichi.
In the 1890s, conditions for Black Americans worsened. At the apex stands Harlan’s magisterial dissent in Plessy, a decision upholding Louisiana’s mandate for separate railroad cars that he predicted would become as odious as Dred Scott. His language rings clearly:
Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law … the equality before the law of all citizens of the United States, without regard to race … 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 its citizens.
As Canellos writes, Harlan’s dissents “rested on precepts that were deeply embedded in his life story”. In his youth, Harlan risked his life to put out a fire engulfing an enslaved woman. His daughter Edith taught school for poor Black children. “Images of Robert” and his success rebutted claims of racial inferiority.
His dissent was an inspiration to Thurgood Marshall and Constance Baker Motley in long years of work that led to vindication in Brown v Board of Education in 1954. And it included language on interstate commerce – if Congress has power to charter railroads, why can it not insist on equal treatment on them? – that underlay the court’s approval of the Civil Rights Act of 1964.
Canellos also recounts the tragic story of Ed Johnson, falsely convicted of rape. Harlan made an emergency intervention to stop his execution, at the request of two Black lawyers, upon which the sheriff left the jail unguarded and a mob lynched Johnson, chanting “Harlan! Harlan!” Harlan persuaded his colleagues to indict local officials for contempt of court – the only time the supreme court has functioned as a trial court. It was “the first time that Black people saw the supreme court acting on their behalf”.
To Canellos, Harlan could “look over the horizon and envision the stresses on the superstructure of American life a hundred years in the future” because he equally looked back to a nation divided by war for not living up to its ideals. Frederick Douglass was right to call him “a moral hero”. By the mid-20th century, the court realized Harlan was, on the whole, right. His portrait hangs in the chambers in which the justices deliberate.
Canellos writes with fluency, sensitivity and clarity about complex legal arguments. He reminds us how people can change and societies with them, through the rule of law. The racism Robert endured persists but at least no longer enjoys constitutional backing – due in large measure to his half-brother the justice.
June is the traditional month for major supreme court decisions. One hopes for the moral courage, clarity of thought and practical vision of John Marshall Harlan.
The Great Dissenter is published in the US by Simon & Schuster