October 14, 1911 – Death of SCOTUS Justice John Marshall Harlan & Review of “The Great Dissenter: The Story of John Marshall Harlan America’s Judicial Hero” by Peter S. Canellos

Author and journalist Peter Canellos has chosen an excellent moment for a biography of the Supreme Court jurist John Marshall Harlan, whose intellectual evolution and eventual dedication to civil rights is not only inspirational, but more relevant than ever.

The author’s aim is to describe how Harlan went from being a slave-owner in Kentucky to one of the greatest advocates of minority rights of all time during his service on the U.S. Supreme Court. As the author writes:

Among powerful white officials, one person’s voice rang out. He reminded the nation that the post-Civil War amendments to the Constitution promised equal protection under the law. He advocated eloquently for Black rights, along with the health and safety of immigrant industrial workers and the rights of people in places such as Puerto Rico, Hawaii, and the Philippines, which were ruled by the United States in a time of imperialism.”

One relatively unknown aspect of Harlan’s background is the fact that a Black man and former slave, Robert Harlan, was brought up in Harlan’s house and treated like a brother. There is speculation that Robert was in fact a half-brother of John Marshall Harlan. Robert’s story is also covered by this book, with the author weaving back and forth between the lives of the two men.

Harlan served on the Supreme Court for thirty-four years, from 1877 to 1911. He was appointed to the court by President Rutherford B. Hayes “as a kind of human olive branch to the South,” since the rest of the court was made up of privileged Northerners. Harlan was the only one of the court to have graduated from law school. He was also, as mentioned above, a former slave owner, notwithstanding the unusual status afforded to Robert Harlan.

Thus it is most interesting to see how Harlan come to occupy his position as a liberal bastion among his peers. Notable were his dissents on three infamous civil liberties cases that came before the Court: Plessy v. Ferguson (1896), Lochner v. New York (1905), and The Civil Rights Cases (1883).

The author writes: “In case after case, he laid out a framework for what would become the twentieth-century civil rights movement.”

Canellos evinces a fine understanding of the legal issues at stake, which he explains clearly for lay readers. But Harlan’s own words, quoted liberally within the book, are also clear as well as inspirational:

For example, in “The Civil Rights Cases of 1883,” Harlan wrote:

I cannot resist the conclusion that the substance and spirit of the recent amendments to the Constitution [the 13th, 14th, and 15th] have been sacrificed by a subtle and ingenious verbal criticism. It is not the words of the law but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law are the soul.”

Thus, he argued that the majority of the Court was ignoring the plain meaning and intent of the newest amendments, and that their position revealed racial double standards.

As the Court later found in United States v. Carolene Products Co., 304 U.S. 144 (1938), stated in the famous Footnote Four:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

The country however, in Harlan’s time, as the author observes, looked to the Court’s majority who gave them security in and protection for their right to discriminate.

Frederick Douglass later wrote of Harlan:

…I was wont to console myself with what seemed to many a transcendental idea, that one man with God is a majority; that if such a man does not represent what is, he does represent what ought to be, and what ultimately will be.”

This is an excellent description of the importance of John Marshall Harlan, his moral integrity, and of his continuing relevance today.

This double biography – of John and Robert Harlan – will introduce to most readers two unique characters whose stories are fascinating, and representative of the state of the union at the time. It is a book well worth reading!

Rating: 5/5

Published by Simon & Schuster, 2021