John Marshall Harlan was a man of many contradictions. He was an opponent of chattel slavery, and against Lincoln's Emancipation Proclamation. Raised in household where slave labor was the norm; he was personally against "the peculiar institution". At the same time, he opposed the abolition movement. He is often called "The Great Dissenter" due to his many dissenting opinions in cases that restricted civil liberties, notably in Plessy v. Ferguson and Giles v. Harris. As the great dissenter he would join with two other noted dissenters: justice William Brandeis (1916 to 1934), and justice Oliver Wendell Holmes (1902 to 1932). Yes, dissenting court opinions that would eventually become the Court's majority court rulings. And, as with them, he would coin a phrase that would become famous. With Harlan it was "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens".
John Marshall Harlan is the subject of this fascinating and very readable biography, entitled "The Great Dissenter" by Peter S. Canal
Harlan was born in 1877, into a prominent, slave-holding family, in the border state of Kentucky. When the American Civil War broke out, unlike fellow Southerners, Harlan sided with the North. Despite his opposition to Lincoln's Emancipation Proclamation, he strongly supported the Union, and recruited the 10th Kentucky Infantry, which he led as a colonel. Harlan served in the Union Army until 1863, when he was elected attorney general of Kentucky. Harlan lost his bid for reelection in 1867, and joined the Republican Party. Seeking to appoint a Southerner to the Supreme Court, after the disputed 1876 presidential election, President Rutherford B. Hayes would choose John Harlan of Kentucky.
From the start, Harland established good relations with his brothers on the bench. Though Harlan often disagreed with other justices, he was able to separate deferences over legal issues from personal relationships. His financial debt was a constant concern for Harlan, (what with putting his sons through college), and in the early 1880s, he considered resigning from the Court and returning to his private law practice. Ultimately, he decided to remain on the Court, but supplement his income by teaching Constitutional Law at the Columbian Law School (now George Washington University Law School).
As an associate justice, Harlan was the lone dissenting voice for more than 34 years. From 1877 until his death in 1911, John Marshall Harlan was the only justice on the U.S. Supreme Court, who spoke out against Laissez-Faire business economics, the denial of civil rights for African Americans, and child labor in American factories. At the same time, his was the only voice on the High Court that advocated for the rights of working women, free speech, collective bargaining, and government enacted of social reform programs.
Three Supreme Court majority rulings during his long tenure are usually ranked among the very worst in court history--decisions that, after a century or more, are measured both by their flawed reasoning, and staggering numbers of people who suffered with their consequences. These rulings are: The Civil Rights Cases (1883), Plessy v. Ferguson (1896), and Lochner v.New York (1905). Before Harlan, dissenting opinions were rare.
Ironically, Harlan's dissenting opinions would live on to become the Court's majority opinion, beginning in the 1930s, and taking flight during the Warren Court Years.
Harlan's judicial opinions were influenced by his life-long belief in a strong central government, his sympathy for the economically disadvantaged, and his view that the Reconstruction Amendments had fundamentally transformed the relationship between the federal government and the state government. Though Harlan believed the Court had the power to review state and federal actions on a broad of array of issues, he tended to oppose judicial activism in favor of deference to legislatures.
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