A Gilded Age Supreme Court justice and his Black half-brother.
“Don’t ask, don’t tell” had a different meaning when Supreme Court Justice John Marshall Harlan sat on the high court from 1877 to 1911. The Great Dissenter, Peter Canellos C’84’s new biography of this Gilded Age justice, gets its title from his thundering—and solitary—dissents favoring Black Americans and workers. But Harlan had an open secret that might astonish contemporary readers.
That this former slave owner from Kentucky would stand up for civil rights during his 37 years on the Court is not the revelation. One eye-opener follows another because Canellos, an editor at Politico, intertwines John Harlan’s life story with that of another remarkable man: his relative Robert Harlan, who was Black.
Seventeen years John’s senior, the blue-eyed Robert, a man with a “golden smile,” according to a contemporary, made a fortune during the California Gold Rush and became one of Ohio’s most prominent politicians. A confidante of presidents, he lobbied for John’s appointment to the court. The two men often corresponded and were lifelong friends.
Born a slave, he was likely John’s half-brother. Family patriarch James Harlan, a prominent politician, raised Robert in his home. Yet despite Canellos’ digging, it remains unclear whether James fathered both men or even if the “brothers” knew if they had the same father.
The two lived parallel lives, each carving noble paths. “As John fought to preserve the gains of the Reconstruction era in the Supreme Court, Robert and his family provided a real-life illustration of how … changes in the law choked off hope and ambition,” writes Canellos, who dubs John Harlan “the perfect embodiment of the American idea.”
His father, in a prophetic act, named the future jurist after Supreme Court Chief Justice John Marshall (no relation), the man who boldly established the Court’s role as the Constitution’s preeminent arbiter from 1801 until his death in 1835. True to his namesake, Harlan showed his own judicial mettle by standing up for individual rights in the face of political headwinds.
His first dissent came in the Civil Rights Cases of 1883, a group of five cases that were consolidated for a single judgment. The other eight justices ruled that the federal government lacked the authority to interfere with private actors who discriminated against customers, saying that state, not federal, law controlled such matters.
Harlan tried for days to write but could not make words flow from his pen. Then his wife Malvina put something on his desk that she knew would stoke his courage—the inkwell Chief Justice Roger Taney had used when composing the 1857 Dred Scott decision that denied Black Americans citizenship. Harlan had bought this relic years earlier, but Malvina had hidden it, fearing he would return it to the Taney family.
Now his words came like “magic,” she remembered, and Harlan denounced such mistreatment “a badge of servitude” that Congress could forbid. He also noted that, in cases that were similar but lacked a racial dimension, it had in fact exercised such federal authority.
When critics chastised this former slave owner for his astonishing new position, he replied, “Let it be said that I am right rather than consistent.” Canellos calls it a “great irony” that Harlan’s colleagues, all of whom were northerners, “had impeccable civil rights credentials, but they had no personal exposure to Black people.”
John gained wisdom through his relationship with Robert, according to Canellos. “If you’ve seen an enslaved person in your own home go on to become wealthy, powerful, wise and politically important, you can’t succumb to the belief his colleagues had that newly free slaves were to be kept in a childlike state and weren’t prepared to take on the burdens of citizenship,” the author reflected in an interview with the Gazette.
Harlan’s shining moment came in the 1896 case Plessy v. Ferguson. The court ruled 7–1 that states had the right to segregate cars on passenger trains by race, a holding that cemented the rule of Jim Crow in the post-Reconstruction South and slammed the coffin lid on African-American civil rights for decades.
Standing alone, Harlan wrote: “In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”
For his courage, Frederick Douglass hailed Harlan as a “moral hero” and proclaimed that “one man with God is a majority.” In the early 1950s future Supreme Court Justice Thurgood Marshall, the NAACP’s lead attorney in Brown v. Board of Education, called Harlan’s dissent “a bible.” An NAACP colleague recalled that “No [judicial] opinion buoyed Marshall more in his pre-Brown days.”
Robert was equally outspoken. After returning from England, where he owned a stable of thoroughbred racehorses, he spoke at an 1870 parade that celebrated the ratification of the Fifteenth Amendment, which prohibited states from denying citizens the right to vote on account of race. “Knowledge is power; and those who know the most, and not those who have the most, will govern this country,” he said. “Let us combine and associate and organize for this end. In the pulpit, in the press, in the street, and everywhere let our theme be education, education; until there cannot be found anywhere a child of us that is not at the school.”
Canellos began his career—a “calling,” he terms it—as editor of the Daily Pennsylvanian. Before becoming Politico’s managing editor for enterprise in charge of its investigative and magazine coverage, he served as the Boston Globe’s DC bureau chief, metro editor, and editorial page editor.
He spent decades thinking about writing the biography, which Publishers Weekly hailed as one of 2021’s best books, after becoming aware of Harlan at Columbia Law School in the 1980s. “I had a very authentic reaction,” says Canellos. “Here was a person who was this extreme outlier in his time. The Harlan story feels astonishingly contemporary in terms of the fact that we’re wrestling with racial justice and income inequality today just as 125 years ago when Harlan was doing it.”
Work pressures kept the project at bay. In 2017 when his schedule eased, he “turned on the jets.” A boost came thanks to a chance meeting at an annual Daily Pennsylvanian “boot camp” where alumni mentor students. Canellos, a regular attendee, met Alec Ward C’17, the incoming chair of the DP’s editorial board, who invited him to coffee.
“I was astounded that Alec started quoting Harlan cases and dissents,” Canellos says. “It turned out he had taken a class with Rogers Smith”—the Christopher H. Browne Distinguished Professor of Political Science [“Who Is America?” Nov|Dec 2018]. Canellos hired the history major as a research assistant, and in the book’s acknowledgments he credits Ward, who is now a trial attorney in the Civil Rights division of the Department of Justice, as being “a daily thought partner and editor in the development of the book.”
Love of the law ran strong among the Harlans for decades. In 1957, Robert’s great-grandson Robert Jackson Harlan, an attorney, stood in the chambers of the Supreme Court before John’s grandson Justice John Marshall Harlan II to take the oath that admitted him to the bar of the Supreme Court, which entitled him to practice before the Court.
Today a portrait of the first Justice Harlan hangs in the room where Supreme Court justices deliberate. “This ‘eccentric exception,’ as [fellow Supreme Court Justice] Felix Frankfurter called him—this lone dissenter—would comfortably have fit into the mainstream of American law today. It’s an amazing kind of thing,” says Canellos. “Here’s the one among many who has been proven right over time, and everyone else was proven wrong.”