ASK THE AUTHOR

There is no man in this country to whom the colored race is more indebted.

— Washington Bee (Oct. 21, 1911) (an African American newspaper)

History has vindicated John Marshall Harlan, who dissented in some of the Supreme Court’s worst decisions concerning race and limiting the scope of federal power. He was prescient in recognizing the need for a strong national government to deal with urgent issues, such as civil rights. And he was surely correct in understanding that the equal protection clause must mean that one race never can be superior or subordinate to another.

— Erwin Chemerinsky (June 25, 2021)

More than a century before Justice Ruth Bader Ginsburg became legendary for her biting dissents, Justice John Marshall Harlan I was the original notorious dissenter. During his time as an associate justice from 1877 to 1911, he broke with his colleagues in some of the most consequential – and infamous – rulings that the court has ever issued. Harlan’s moral vision is memorialized in his lone dissent in Plessy v. Ferguson and his series of dissents in the Insular Cases, among many others. Yet his record is not unblemished: He distrusted immigrants from China and even voted to deny citizenship to their U.S.-born children.

Last year, Peter S. Canellos published a new biography of Harlan, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero. Canellos is the managing editor for enterprise at Politico, overseeing the site’s magazine, investigative journalism, and major projects. He is also a graduate of Columbia Law School.

I corresponded with Canellos about his book. Here is our conversation, which has been lightly edited for length and clarity.

The back story

RONALD COLLINS: Welcome, Peter. Before The Great Dissenter, your previous book was Last Lion: The Fall and Rise of Ted Kennedy. It’s a long conceptual stretch from a book about Sen. Kennedy to one about Justice John Marshall Harlan. What explains that?   

PETER CANELLOS: In each case I was drawn to the overall arc of the story. In the case of Sen. Kennedy, it was how someone who was so easily dismissed – and whose own early actions and misdeeds compounded that impression – could remake himself into the greatest legislator of his era. In Harlan’s case, the story arc that first attracted me was the notion of posthumous vindication – how a man who went so far out on a limb in his time could land so comfortably in the mainstream of legal thought. In the end, though, a large part of the story turned on the question of just what it was that enabled Harlan to see the law so differently from his peers. There are many answers to that question, but the role of Robert Harlan, who was believed in his lifetime to be the justice’s half-brother, was a particularly intriguing part of the puzzle.

One point of connection between the Kennedy book and the Harlan book is that each revealed how historians’ fixation on the presidency often obscures the importance of other branches of government. I think the story of the Gilded Age – Harlan’s time on the court – is better understood through the actions of the Supreme Court, which voided antitrust laws, declared the income tax unconstitutional, blocked labor reforms, knocked out civil rights protections, refused to enforce voting rights, and approved the legal architecture of segregation. Harlan dissented in all those cases. I also think that Kennedy’s role in drafting and promoting legislation in the Senate, such as the Immigration Act of 1965, along with civil rights and health legislation, amounts to a legacy greater than that of some of the presidents of his era.

John Harlan had eight siblings, grew up in a slave state, and was raised in a slave-holding family. His father, James Harlan, was quite a persona in his own right. Tell us a little about him and his influence on John.

James Harlan served in Congress and as Kentucky’s attorney general, and was a devoted follower of Henry Clay, to the point that Clay’s politics and James’ were almost interchangeable. Those politics were shaped almost entirely by the threat of civil war, which hung over all their adult lives. They perceived that Kentucky would be a battleground of that war, and that the state’s peculiar politics – half in sympathy with the South and half with the North – would shred its civic life for generations. James Harlan strongly rejected the states’ rights arguments than animated the South. He particularly admired Chief Justice John Marshall, whose beliefs in the supremacy of the federal Constitution and the rule of law over politics seemed to point a way out of the slavery crisis. Hence, John Marshall Harlan’s name.

In the Acknowledgements, you credit Adam P. Willis, “who spent three years chronicling the soul-inspiring story of Robert Harlan.” Against that backdrop you note: “If there is any mystery to Harlan’s story, its solution lies in the person of Robert Harlan.” Why is that so?

I am indeed indebted to Adam Willis, who was my research assistant and took the lead in plumbing newly digitized niche newspapers — African American newspapers, horseracing journals, and the European English-language press, among others – for what they told us about Robert Harlan’s life and John Marshall Harlan’s reputation. There were two main revelations in Adam’s work. First, it showed the extent to which Robert Harlan was viewed as a leader and celebrity in the African American community, the horseracing world, and in Europe. This was a man who was born enslaved, became a renowned horseracing pioneer, made a fortune in the Gold Rush, brought American thoroughbreds to compete in England, and then emerged as the leading African American politician in the most politically important state, Ohio. Second, Adam’s research showed the extent to which John Marshall Harlan’s dissents in race-related cases, which were largely ignored in the mainstream press, were a constant subject of attention in the Black press. The nation’s African American leaders, from Frederick Douglass on down, were intensely focused on Harlan’s arguments, and he helped to inspire future generations of African American lawyers.

There’s also something inspiring in the fact that Robert Harlan maintained a relationship with John, and that the two collaborated politically at various junctures. These included the 1876 Republican National Convention, which was in Robert’s home base of Cincinnati and at which John was the floor leader for the presidential candidacy of Benjamin Bristow. Later, Robert sent John a series of letters offering political advice and sharing his efforts to promote John for a Supreme Court appointment. It’s difficult to tell how much of an impact Robert’s efforts had in helping John secure the nomination, but I think we can assume they helped to assuage the main concern about him – ironically, that he was insufficiently supportive of civil rights.

Later, when John became the court’s only defender of African Americans’ civil rights, many people were surprised. But the other justices – most of them Northerners – had little personal exposure to Black people and seemed to accept notions of racial inferiority. Robert Harlan, however, had risen from slavery to wealth and power. He was the living refutation of the assumptions that were implicit in Plessy v. Ferguson and other cases.

The “Chinese race” question

In her otherwise laudatory New York Times review of your book, Jennifer Szalai wrote: “Canellos is protective of his biographical subject, straining to put a charitable gloss on some of Harlan’s more troubling comments from the bench, especially regarding what Harlan called ‘the Chinese race.’” What is your response to that?

The book explores what I consider a deep and, when taken to extremes, troubling vein of thinking in Harlan’s politics and legal views. He was a strong believer in the uniqueness of American democracy, and how it emerged as a rejection of the monarchies that controlled most of the world. He had a strong sense of American exceptionalism. He felt that people who came to America needed to commit themselves to the hard work of self-government. At times, though, those feelings led him to be overly skeptical of people whom he felt lacked that commitment. Before the Civil War, he questioned whether some Catholics, committed to the doctrine of papal infallibility, could be true supporters of American democracy. He questioned whether the children of British subjects, born while their parents visited the United States with no intention of becoming Americans, should receive birthright citizenship. This skepticism extended to Chinese workers who came to the United States under a treaty that did not allow them to become citizens; they remained subjects of the Chinese emperor. Thus, he joined a dissent by Chief Justice Melville Fuller in United States v. Wong Kim Ark that rejected the idea that children born to Chinese workers who were not themselves on a path to becoming American citizens should be granted birthright citizenship. I think he was on the wrong side of that case.

Harlan also joined a unanimous court in 1889 in rejecting a challenge to the Chinese Exclusion Act. The plaintiffs argued that Congress could not unilaterally pull out of a treaty; the justices said they could, and that case remains the law today, even though it sustained an objectionable piece of legislation. At the same time, though, it should be noted that Harlan sharply dissented when the Supreme Court refused to grant civil rights protections to Chinese victims of white vigilantes in California. He was also the court’s strongest supporter of granting full constitutional rights to Filipinos and Hawaiians. So I conclude that his feelings about birthright citizenship in Wong Kim Ark, like his views on Catholics and British subjects, stemmed from his skepticism of people who remained subject to foreign rulers, and not from any reflexive racial prejudice against Asians.

Some Harlan critics also point to the line in his Plessy dissent stating that there is “a race so different from our own that we do not permit those belonging to it to become citizens” as endorsing discrimination against Chinese people. In fact, he was making the legally important point that people of all races except Black people were permitted to sit alongside white railroad passengers. Only Black passengers were put in a separate car. He was challenging the idea that Louisiana’s Separate Car Act was truly “separate but equal.” He was demonstrating that the purpose of Louisiana’s law was to separate Black people, not to treat every race equally. It’s an insensitive line to today’s ears, to be sure, but not intended to endorse discrimination.

My overall conclusion is that Harlan wasn’t the hero to the Chinese that he was to African Americans and other racial minorities, but nor was he biased against them. I think Jennifer Szalai correctly sensed that I felt obliged to explain why I didn’t believe he was an anti-Chinese racist. It’s an important issue to address, not only because it’s a serious charge, but because many people cite it today as a reason to dismiss Harlan’s unique place as a defender of equal protection under the law.

Holmes v. Harlan

Second perhaps only to Chief Justice John Marshall, Justice Oliver Wendell Holmes is often cast as the greatest Supreme Court jurist. In many ways, your biography can be read as contesting that claim and elevating Harlan to a seat higher than that of Holmes. Was Harlan truly a greater jurist than Holmes?

I do believe that Harlan should have a place in the legal pantheon above Holmes, but I readily acknowledge that there’s something a little reductive in the idea of ranking jurists. Much of Holmes’ reputation rests on his role in First Amendment law, for instance, an area where Harlan’s legacy is negligible. Having read some of the leading opinions of each, though, I think they’re fascinating contrasts. In the broadest sense, Holmes was a legal theorist who approached cases as challenges to his intellect. Harlan was concerned with the plain meaning of the Constitution, and how cases affect people on the ground and alter the trajectory of the nation. For instance, he warns in his Pollock v. Farmers’ Loan & Trust Co. dissent of how voiding the income tax would hamstring the federal government in event of war, when tariff revenue dried up. Having lived through Dred Scott, he was deeply conscious of how mistakes by the court could lead to terrible outcomes. Comparing court decisions with which he disagreed to Dred Scott was almost a reflexive tactic of his.

Holmes’ opinions often attest to his greatness as a legal thinker but lack the innate sense of fairness and justice that Harlan brought to his work. Holmes’ “three generations of imbeciles” opinion in Buck v. Bell is often cited among the worst in court history. I was also surprised that Holmes found a way to concur with the majority in Berea College v. Kentucky, which upheld a state law banning interracial education even in private schools where everyone chose to learn together. That case occasioned Harlan’s last passionate dissent on race. All in all, Holmes authored many more opinions that offend today’s sense of justice than Harlan did.

While there was, as you write, “a baseline of respect” between Holmes and Harlan, the two had real differences with often opposing views of the law. Even so, in a March 3, 1903, letter, Holmes said this of his colleague: “He is a simple nature, but a forceful intellect and a personality that would be hard to replace – under superficial shortcomings a great engine – and a noble courage.” Is that a fair assessment of Harlan? 

I think it’s more than fair. But Holmes also had less flattering things to say about Harlan; in an April 5, 1919 letter he compared Harlan’s mind to “a powerful vise the jaws of which couldn’t be gotten nearer than two inches of each other.” That line really shows Holmes’ talent with words and images! He also called Harlan “the last of the tobacco-spittin’ judges.” Some have viewed this as a sign of Beacon Hill condescension toward Danville, Kentucky, but I think it may have been simply a reference to Harlan’s love of chewing tobacco. Holmes, like Jefferson perhaps, was brilliant but all over the map in his thinking. This was a man who managed in his long and illustrious life to make disparaging comments about both Abraham Lincoln and Franklin Roosevelt.  

Before we leave Holmes, his latest biographer (Stephen Budiansky) referred to his majority opinion in Giles v. Harris (1903) as “one of his most poorly reasoned opinions,” adding that his “argument bordered on sophistry.” Despite a record of racial bias, Holmes’ majority opinion allowed Alabama’s requirements for voter registration and qualifications to stand based on the claim that the court lacked jurisdiction. Harlan dissented. Though his opinion on the jurisdictional matter is a read best suited for students of federal courts, you maintain it is, nonetheless, one of great importance. Why? What was at stake in Giles?   

I think it’s generous to say that Holmes allowed Alabama’s abject violation of voting rights to stand based on jurisdictional concerns. There was a threshold issue in the case – whether the case was justiciable under a law requiring that any dispute to reach the high court must be greater than $2,000 – but Holmes rejected it. He then went on to craft his own argument that the case amounted to a political question. He based that finding on expediency. He openly acknowledged that Alabama’s state constitution, which grandfathered in the voting rights of ex-Confederates and their progeny while allowing others to be excluded based on standards as amorphous as a voting clerk’s decision that a person lacked good character, was intended to deny voting rights to African Americans. But he then argued that the plaintiffs’ chosen remedy – being granted the right to vote – made no sense if the entire voting regime was unconstitutional. How, he wrote, “can we make the court a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists?” Holmes was overthinking things, to say the least. In his Giles dissent, Harlan allowed that he would have granted the initial $2,000 challenge (which at least would have given the plaintiffs a chance to retool the case), but added that, based on his reading of the law, “the plaintiff is entitled to his relief in respect of his right to be registered as a voter.”

Why is this important? If the court had ordered that Jackson Giles and his 5,000 co-plaintiffs be registered as voters, it’s likely that, as Holmes feared, many Alabama officials would have defied the ruling. But I suspect there would have been some pockets of the state where the opinion of the Supreme Court would count for something. And it would have given African Americans the assurance that the Supreme Court was on their side. Over time, the pressure to follow the court’s edict would have grown. That doesn’t mean that racial injustice would have been wiped out, but merely that the battle for voting rights would have begun earlier and perhaps advanced more quickly. That’s the way I feel about most of Harlan’s opinions in race-related cases. If the other justices had followed Harlan’s lead and decided the cases the way he recommended – the opposite of how they actually decided them – many Southern officials would have remained intransigent and the court would have been left without reliable mechanisms of enforcement. But the long, torturous process of acceptance and reconciliation that began in 1954 with Brown v. Board of Education might have begun in, say, 1883 instead.

Justice John Marshall Harlan I. (Library of Congress)

“Desperate struggle”

 “Harlan was more than just a legal theorist,” you write. What was the measure of the man that prompted you to say that? What is the psychological arc of someone who once defended slavery and opposed the 13th Amendment but thereafter became one of the nation’s greatest champions of racial justice? To pursue the matter a little more: In a chapter titled “John vs John,” you state: “John was prepared to see the end of slavery. But he felt that Kentucky’s loyalty to the Union entitled the state to make its own choice whether to abolish slavery.” That is, how is it that the same man who opposed Lincoln’s Emancipation Proclamation in defense of states’ rights could also be such a resolute defender of racial justice?

At the time you’re referring to, the last years of the Civil War and its immediate aftermath, Harlan was deeply influenced by his own desperate struggle in 1861 to persuade his fellow Kentuckians not to join the Confederacy. He assured them that the Lincoln administration would respect their (initial) neutrality and allow them to chart their own path in the post-war world. Instead, Lincoln put Kentucky under martial law. Harlan was the state’s attorney general at the time, obliged to represent the state government in challenging the federal assumption of power. He opposed the ratification of the 13th Amendment because he wanted Kentucky, presumably by plebiscite, to make its own decision on slavery. Perhaps he felt emancipation would have more credibility if it were not imposed from outside. Perhaps he felt a stubborn need to defend his own promises of five years earlier. Over the next two years, however, his views dramatically changed.

Critics insisted Harlan’s motive was pure expedience, that perhaps he had started to envision a future for himself in the national Republican Party. (There was no personal gain in state politics in tethering himself to the unpopular Republicans.) There is a lot of evidence, however, that he was shocked and alarmed by the rise of Ku Klux Klan-like vigilantes. Out of the muddle of his early views emerged a sharp sense of clarity. He felt that inequality was the moral and political sin that violated the great principles upon which the United States was founded. And whether it was through segregation or the types of cobbled-together systems governing the U.S.-controlled Philippines, Puerto Rico, or Hawaii, he always believed that treating one group of people differently from others was a recurrence of the old cancer.

Though some, like Justice Felix Frankfurter writing separately in Adamson v. California, viewed Harlan as an “eccentric” visionary, there was a perceptive strain of realism in his lone dissents in cases such United States v. Knight Co. and the Civil Rights Cases. Tell us a little about that realist streak in Harlan.

His dissents often included direct references to how the majority opinion would, in practical ways, impact the lives of people on the ground and the future of the country. He really wrestled with the facts. In Plessy v. Ferguson, he called out the majority for willfully ignoring the true intent of the Louisiana Separate Car Act. In the Civil Rights Cases, he attacked the idea that Black people had been special favorites of the law. In Knight, he scoffed at the distinction between manufacturing monopolies and commercial monopolies, and the majority’s obtuseness in suggesting there was no intention to restrain trade expressed in the papers creating the Sugar Trust: “Was it necessary,” he asked, “that formal proof be made that the persons engaged in this combination admitted in words that they intended to restrain trade or commerce?”

A “most emphatic” moment

You devote considerable attention to Pollock v. Farmers’ Loan & Trust Co., a 5-4 decision that struck down the federal income tax of 1894 as violative of Article I, Section 9 of the Constitution. As you describe it, conservatives saw the tax as “Socialism in action. Assault on American values. Destruction of property through taxation. The poor storming the castles of the rich.” Harlan’s dissent proved influential in changing the constitutional law of the nation. Can you say a few words about that dissent and how it influenced what happened in 1913?

Harlan was not alone in dissenting in Pollock, but he was the most emphatic, and took some heat for appearing intemperate. But his dissent helped to inspire Cordell Hull, who, as a young congressman, launched a crusade to overturn the ruling. Hull read Harlan’s dissent and the others into the Congressional Record and stressed that the strength of their arguments suggested that a new line-up of justices would view the income tax differently. His goal was to get Congress to pass an income tax to test the justices’ willingness to overrule Pollock. Instead, he got the powerful Senate leader Nelson Aldrich, father-in-law to John D. Rockefeller Jr., to agree to allow Congress to consider a constitutional amendment. Aldrich thought it would never happen. However, it quickly gained steam, and the 16th Amendment was ratified in 1913.

Plessy revisited

Given that there have been some 10 books on Plessy v. Ferguson, and countless scholarly articles on the case and Harlan’s famous dissent in it, what is there new to say about the case? In light of that, how did you set out to approach your discussion of Plessy? 

I took as a starting point the idea that most people who were interested in Harlan knew about his role in Plessy. So I relied on other accounts along with the primary documents for most of the facts of the case. The new material in my book related to Plessy is focused on how Harlan’s dissent helped to sustain the faith of African Americans in the legal system and inspire the civil rights lawyers of the 20th century, especially Constance Baker Motley and Thurgood Marshall.

Time has turned around many of yesterday’s truths as the words of the past take on new meaning in the present. This is certainly true when it comes to Harlan’s famous maxim in Plessy that “our Constitution is color-blind.” You point out that both William Bradford Reynolds, assistant attorney general for civil rights in the Reagan administration, and Justice Antonin Scalia, writing separately in City of Richmond v. J.A. Crossen Co., invoked that maxim to oppose affirmative action programs. So did Justice Clarence Thomas in his separate opinion in Grutter v. Bollinger. What do you make of such invocations?

I think it’s fair of those lawyers and jurists to make the argument that a color-blind Constitution would look skeptically on affirmative action. I don’t venture an opinion on how Harlan would have seen it. But I take note of the comments made by Thurgood Marshall in 1987 defending Harlan’s words as an ideal that has yet to be realized. “Affirmative action is an issue today because our Constitution was not color blind in the sixty years which intervened between Plessy and Brown.”

Too far … or too tough?

Like other mortals, John Marshall Harlan’s feet touched the earth: What were his shortcomings, his mistakes in life or law or both? For example, might his opinion for the Court in Cumming v. Board of Education of Richmond County (1899) sanctioning de jure segregation of races in schools be seen as “grievous pettifoggery” as Richard Kluger put it in Simple Justice? That opinion, after all, was overruled in Brown v. Board of Education.

I think Harlan’s skepticism about whether foreigners, accustomed to living under monarchies, could acclimate themselves to American self-government went too far. His views became much more moderate over time, and he took pains to repudiate his involvement in the anti-immigrant Know-Nothing party. But this vein of thinking never quite left him. It probably accounts for his joining Fuller’s dissent in Wong Kim Ark, which is a blemish on both their reputations. As for Cumming, I think Kluger, who is an extraordinary writer and role model for serious journalists everywhere, was nonetheless too tough on Harlan’s opinion. C. Ellen Connally, the first African American woman elected judge in Ohio, has written a persuasive article suggesting that Harlan joined the majority in Cumming precisely to write a narrow opinion that could never be used to undermine equal-protection doctrine. If Harlan had chosen to dissent, Fuller might well have chosen Justice Henry Billings Brown to write the majority opinion and repeat his Plessy arguments.

Interestingly, a lot of questioners ask me about whether it was truly honorable for Harlan to dissent rather than work with his colleagues to lessen the impact of their decisions. I reply that Harlan’s differences with his colleagues in most of his major dissents were too fundamental to bridge. The Cumming case, however, is an example of him choosing to join with his colleagues in order to render a majority opinion that did not offend his principles of color blindness and equal protection under the law.

In the chapter titled “In Trusts We Trust,” you make an interesting point about how 19th-century economic forces, beholden to the giant trusts of the day, forever changed the practice of law. Please elaborate.

I trace a lot of the Fuller court’s conservative economic views to the fact that so many of the justices were corporate attorneys with backgrounds representing railroads and industrial trusts against states’ attempts to regulate them. These attorneys were of the first generation of truly wealthy lawyers. When they were born, in the early decades of the 19th century, being a lawyer meant putting out a shingle and representing your neighbors. The rise of the railroads transformed the practice of law as much as the rest of the economy. Suddenly, lawyers like Rufus Peckham, Henry Billings Brown, Melville Fuller, Samuel Blatchford, and more became very wealthy men, the peers of the industrial giants whom they represented. After Lincoln, there was a nearly four-decade string of pro-business presidents (all Republicans and the “bourbon” Democrat Grover Cleveland) who appointed these men and their ilk to the Supreme Court. Harlan, who was the product of the unusual circumstances of Hayes’ election and his vow to put a southerner on the court, was the notable exception.