The Great Dissenter review: a superb life of John Marshall Harlan, champion of equality | Books

The dissent collar of the late Ruth Bader Ginsburg is a small part of a larger story. Unlike some other high courts, the US Supreme Court accepts strong disagreements. Ginsburg stood in the tradition of John Marshall Harlan – the only judge with the courage, foresight, humanity, and constitutional vision to defend himself against the heinous Plessy v Ferguson decision of 1896 that approved racial segregation.

The road to this dissent was long. Harlan was named after a former chief judge, and his father sparked a love of the union and the constitution despite the Kentucky family having enslaved people. After the Civil War, Harlan welcomed the reconstruction additions that guaranteed civil rights and equal protection.

Peter Canellos’ great biography adds to a little-remembered fact: Harlan had a likely black half-brother, Robert. Born into slavery but raised “a member of the family,” Robert gained freedom and became known as a businessman by opening a business and buying property in Cincinnati during the California Gold Rush. An “excellent judge” and owner of racehorses, he was a leader of the black community in Cincinnati and nationally.

Robert stayed close to the family, and some timely interventions, not least at the 1876 Republican Convention, boosted John’s career. Canellos not only illustrates two remarkable lives, but also the law as a force for good – or evil.

Appointed by Rutherford Hayes in 1877, Harlan began his aberrant career in civil rights cases in 1883, a test of whether public housing is required for all clients. The majority believed that the 14th amendment only applies to the states and thus allows companies to be discriminated against.

Harlan used the inkwell that Chief Justice Roger Taney used to write the 1857 Dred Scott decision denying citizenship to black Americans and drafted a strong contradiction. He simply wanted Congress to have the civil rights powers it once exercised “to protect slavery and the masters of fugitive slaves.”

The disagreements kept coming: EC Knight, who approved the Sugar Trust; Pollock, who opposed the attempt by Congress to impose an income tax on the rich; the Insular Cases in which Harlan asserted the full constitution of the multiracial territories acquired after the Spanish-American War in 1898 (a dissent relevant in recent cases over Guantánamo Bay); Lochner v New York, which repealed a law limiting bakers’ hours; Berea v Kentucky, Maintaining Segregation in Education.

One rare contradicting comment related to Wong Kim Ark, in which Harlan agreed on whether a US-born Chinese citizen had the birthright. He argued that parents should seek American citizenship – but told the students that he would have judged a white European the same way. He also upheld a case (Chae Chan Ping) of China’s Exclusion Law, establishing the power of Congress to repeal a contract, but joined the majority in repealing a California law discriminating against Chinese companies and supporting the rights of one Japanese Hawaiians in Hawaii Mankichi.

In the 1890s, conditions for black Americans deteriorated. At the forefront is Harlan’s judicial dissent in Plessy, a decision that upholds Louisiana’s separate rail car mandate that he prophesied would be as hideous as Dred Scott. His language sounds clear:

Sixty million whites are in no danger with eight million blacks here. The destinies of the two races in this country are inextricably linked, and the interests of both require that the common government of all not allow the seeds of racial hatred to be planted under the sanction of the law … the equality of all before the law citizens of the United States , regardless of race … in the eye of the law there is no superior, dominant, ruling class of citizens in this country. There is no caste here. Our constitution is color-blind and knows no classes among its citizens and does not tolerate them.

As Canellos writes, Harlan’s dissenting opinions were based “on rules deeply embedded in his life story.” In his youth, Harlan risked his life to put out a fire that sank an enslaved woman. His daughter Edith taught the school for poor black children. Images of Robert and its success disproved claims of racial inferiority.

His dissent was an inspiration for Thurgood Marshall and Constance Baker Motley in longstanding work that led to justification in Brown against Board of Education to insist on equal treatment in 1954? – The basis for the approval of the Civil Rights Act 1964 by the court.

The Supreme Court in 1894, Plessy v Ferguson. Photo: Library of Congress / Corbis / VCG / Getty Images

Canellos also tells the tragic story of Ed Johnson, falsely convicted of rape. At the request of two black lawyers, Harlan took emergency action to stop his execution, whereupon the sheriff left the prison unguarded and a mob lynched Johnson and “Harlan! Harlan! “Harlan persuaded his colleagues to indict local officials for disregard of the court – the only time the Supreme Court acted as a trial court. It was” the first time blacks have seen the Supreme Court act on their behalf. “

For Canellos, Harlan could “look beyond the horizon and imagine the stresses and strains of the superstructure of American life a hundred years from now” because he was looking back on a war-ridden nation because it failed to live up to its ideals. Frederick Douglass rightly called him “a moral hero”. In the middle of the 20th century, the court realized that, by and large, Harlan was right. His portrait hangs in the chambers where the judges deliberate.

Canellos writes fluently, sensitively and clearly about complex legal arguments. He reminds us of how people and societies can change with them through the rule of law. The racism that Robert endured persists, but at least no longer enjoys constitutional support – mainly because of his half-brother in the judiciary.

June is traditionally the month for important supreme court decisions. One hopes for the moral courage, the clarity of thought and the practical vision of John Marshall Harlan.