The New York Times reviewed the new biography of Supreme Court Justice John Marshall Harlan last week. Harlan was “The Great Dissenter of the 19th Century, breaking with the majority over the issue of racial discrimination. He was the lone dissenter in the Plessy v. Ferguson case legalizing “Separate But Equal” segregation. This was all the more unusual because Harlan came from a slave-owning family. The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero by Peter S. Canellos is praised in the review by Jennifer Szalai who writes:
Born in 1833 to a prominent slaveholding family in Kentucky, Harlan freed the people he himself held in bondage only after the ratification of the Thirteenth Amendment, which he had opposed. When he was appointed to the Supreme Court in 1877, it was considered a sop to the South. Republicans, who belonged to what was the antislavery party at the time, generally mistrusted him, with one of them calling him “the sycophantic friend and supplicant tool” of anti-Reconstruction forces.
But Harlan turned out to be a stalwart proponent of civil rights. He was often the lone dissenting voice on a Supreme Court whose decisions — which included the notorious “separate but equal” ruling in Plessy v. Ferguson — essentially abandoned Black Southerners to Jim Crow. Frederick Douglass praised Harlan as a “moral hero,” and Thurgood Marshall would later cite him as an inspiration. In a new biography of Harlan, “The Great Dissenter,” Peter S. Canellos — an editor at Politico and the author of a biography of Ted Kennedy — says that Americans don’t yet fully appreciate this personal and political transformation, if they even recognize Harlan’s name at all.
Despite what Canellos describes as Harlan’s startling “prescience” — crafting dissents that refuted the widespread prejudices of his own time and resonated with later generations — Harlan doesn’t occupy much of a place in the public imagination. The literature of his life has consisted mainly of academic biographies. This new book is a worthy addition: Solidly accessible and thoroughly researched, it makes a persuasive case for Harlan’s significance and sometimes reads like a mystery. We live at a moment when it can be difficult for people to escape the words and deeds of their previous selves. What to make of a man who, in the approving words of one supporter of his appointment to the Supreme Court, had “sloughed off his old pro-slavery skin”?
Given his unlikely political trajectory, Harlan faced a predictable charge of opportunism — that he had merely sensed which way the political winds were blowing after the Civil War and calibrated his pragmatic self accordingly. But Canellos discerns an unbroken thread running through Harlan’s life. The judge harbored a lifelong abhorrence of national divisions — it’s just that his understanding of who was responsible for the most fractious of those divisions would change according to his experiences. His conversion to the civil rights cause was hard-won.
Like his father, Harlan was so averse to conflict that he criticized both the abolitionists and the cruelest of enslavers, while insisting that the question of slavery should be left up to the states. But in the lead up to the Civil War, he started to recognize how compromise, in practice, often meant capitulation to the voracious ambitions of the Slave Power. Kentucky, a border state, had declared neutrality before the Confederacy invaded. Harlan announced his decision to fight for the Union by appealing to “the cause of human liberty” — a reference that, Canellos concedes, “may have jarred those who just two years earlier had heard John talk of protecting the rights of slave owners.”
I recommend you read the full review.
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Interesting individual. I’ve never heard of him before.
I think he is mostly known to lawyers and law students since we all read his dissent in Plessy. Similar to Frank Murphy for his dissent in the Korematsu Japanese Internment Case.