The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero

After the Civil War, the Supreme Court made multiple rulings related to race and civil rights as well as other issues that were later judged to be among the worst-ever Supreme Court decisions that set the nation back significantly and were later overturned. At a time when it was typical for Supreme Court decisions to be unanimous, one justice consistently became the lone voice of dissent. Peter S. Canellos believes that this justice, John Mashall Harlan, who served on the court between 1877 and 1911, deserves to be studied and lauded. He was on the court during some of the worst Supreme Court decisions ever, so many of which were later overturned. This was the time called the Gilded Age when America was becoming the land of giant corporations, also called robber barons. Harlan was the lone voice against monopolies and supported protections for children and workers' rights. But he particularly stood up for the rights of all citizens for equal treatment at a time when the Court repeatedly made decisions that had the effect of denying those rights to Black citizens. He also argued for applying US law equally to the newly acquired colonies in Hawaii, the Philippines, and Puerto Rico. And yet, on the surface, you could hardly find a less likely candidate for the dissents that he wrote. Of all the justices, he was the only one from the South. Harlan was born into a slave-owning family in Kentucky and owned slaves himself before the war. He had also been anti-abolition (preferring gradual emancipation), opposed the Emancipation Proclamation, and opposed the Thirteenth Amendment ending slavery (saying that abolition should not be imposed on Kentucky from the outside). In the presidential election of 1864, he did not support Lincoln but instead General George McClellan. Yet, he had been strongly opposed to breaking up the Union and was key to keeping Kentucky in it. So why was he the contrary voice? After the war, most of the country was tired of conflict and afraid that any “offense” against the southern states could instigate another rebellion. He looked at things differently. According to Canellos, “Among jurists, he alone expressed the view that when rights are denied to one group, it endangers the protections of all. He alone believed that sowing ‘the seeds of race hate’ in the law would cripple the nation for generations to come.” Canellos also notes how he saw the harm in his own state caused by the struggle between the two sides but especially the violence against those who had been enslaved that ensued. And he also notes that after one of the victories that Harlan had been involved in, as he was walking through the battlefield, he found the body of Confederate General Felix Zollicoffer (interestingly, one of my ancestors). They had been members of the same political party and had both been Southerners dedicated to preserving the Union and yet the war and regional loyalties had made them prepared to kill each other. Canellos notes other major influences were his religious faith (a devout Presbyterian) and his love of the Constitution as well as Robert Harlan. Robert had been an enslaved man whom his father had given special treatment, educating him, and later giving him his freedom. Canellos says that Robert had been treated more like a member of the family and it was suspected that they may have been half-brothers (though DNA testing of their descendants has been inconclusive). Robert was more successful than any of the other Harlans, making a fortune in the California gold rush and in horse racing and even becoming an Ohio legislator. He even helped John receive the Supreme Court nomination and remove obstacles to getting it approved in the Senate. A very impressive book, it’s not exactly a biography and also not a history. It’s better. It helps one understand the life of a complicated man who had the courage to stand even when it meant going against his own past and even when it meant standing alone.