How opinions of ‘the great dissenter’ John Harlan influence the Supreme Court

Judy Woodruff:

The closing day of the Supreme Court term highlighted the power of the new six-justice conservative majority, as we have just been discussing, but the ideological divide can also reveal the power of a blistering dissent.

Yesterday, that dissent came from Justice Elena Kagan, who said the majority undermined the Voting Rights Act by upholding two restrictive laws in Arizona.

She wrote — and I quote — "What is tragic here is that the court has yet again rewritten in order to weaken a statute that stands as a monument to America's greatness, and protects against its basest impulses."

John Yang takes a look at another justice who delivered historic dissents while on the court during the Jim Crow era.

John Yang:

Judy, the name of a Supreme Court Justice John Marshall Harlan may not be widely known these days beyond law students and constitutional scholars.

During his tenure from 1877 to 1911, the High Court enshrined racial segregation in American life.

In the biggest of those cases, Harlan's vote was the lone dissent. He alone staked out positions that decades later would become the law of the land. Those visionary opinions led him to be known as the Great Dissenter, which is also the title of a new biography of Harlan by Peter Canellos, the managing editor of Politico.

Peter, thanks for being with us.

What drew you to write about John Harlan?

Peter Canellos, Author, "The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero": Well, it started back when I was in law school 30 years ago.

And, as you know, it's often a dry affair reading legal books, but Harlan's opinions immediately sort of leapt off the page. Here was somebody who was bringing sort of a higher pitch of justice to his consideration of the law.

It also is striking, not only in the race cases, but also in some of these economic cases during the Gilded Age, that his opinion is the law of the land now, and not that of the court majority of his era.

I wanted to know why somebody would be so different from their colleagues at that time, and yet be proven right in history.

John Yang:

He started out as a slave owner. He was born in a slave state, Kentucky. He disagreed with President Lincoln on emancipation and actually opposed his reelection.

So, how does he go from that to becoming this champion of equal rights for freed slaves?

Peter Canellos:

In the context of Kentucky politics, those stances were less resistant and conservative than you would think.

There were essentially no Republicans in Kentucky. He was striving to keep the state neutral. And so, yes, he cut deals and rallied very hard to get his fellow Kentuckians to stay in the Union. And part of that promise was, they would be able to make their own decision slavery. But that's why he was opposing some of the Emancipation Proclamation and the 13th Amendment.

Nonetheless, after the war, he came to believe that slavery was, in his own words, the greatest despotism of all time. Also, his personal association with African Americans, especially the one who was long rumored and believed to be his half-brother, Robert Harlan, who became a very prominent civil rights figure in Ohio, just across the river from Kentucky, and with whom he had a long-term and very respectful friendship and collaboration.

John Yang:

You write about Robert. You say, "If there is a mystery to Harlan's story, the solution lies in the person of Robert Harlan."

Peter Canellos:

Robert Harlan is an amazing man.

He was a person of mixed race. He was believed to be the son of Harlan's father and an enslaved woman. Some DNA tests later on suggested that may not be the case, but, nonetheless, he was believed to be a member of the Harlan family and had a special relationship with John's father.

He was in a position to help John Marshall Harlan when Harlan wanted to get on the Supreme Court. Northern liberals were very skeptical of this Kentuckian who came from a slave owning family, though, behind the scenes, Robert Harlan was able to reassure people of John Harlan's good intentions regarding African Americans, at a time when most people doubted him.

And then he went on to become the greatest defender of African American rights of his time and perhaps of American history.

John Yang:

You talk about the — sort of the Gilded Age and a lot of these issues, not just the race cases that — but economic cases where the Supreme Court sided with the moneyed interests over workers on things like work hours and that sort of thing.

As you looked at those cases, were — did you feel any parallels or were there echoes of the court's direction today?

Peter Canellos:

One recent vintage that sort of has a little of that air to it is the Citizens United case.

I think the basic situation during the Gilded Age was you had a Supreme Court that was much more conservative than the rest of the country and very much out of touch with what average people were experiencing. That was the result of having a long, unbroken string of essentially pro-business presidents.

Harlan was much more in touch with the country, coming from Kentucky. He was not rich. He understood what was going on, and he was every bit as aggressive a dissenter in those cases as he was in the race cases.

What's amazing to me is, today, in all of those cases, the race cases, civil rights, voting rights, education, and endorsed the separate but equal act, and then, in these economic cases, Harlan's views prevailed. In his time, he was just one person standing against the crowd.

John Yang:

His dissent in the — in Plessy vs. Ferguson, which established the doctrine of separate but equal, was sort of the road map for Thurgood Marshall in Brown vs. Board of education.

And, today, Harlan is a hero to both sides, to conservative legal scholars and justices on the Supreme Court and also liberal scholars. How — talk a little bit about that?

Peter Canellos:

Conservatives see Harlan as a positive figure, as a person who believed in the original intent and plain meaning of the Constitution.

When he stood up for equality in Plessy v. Ferguson, he was saying equal protection means equal protection. He was also saying the people who passed that amendment intended to create a state of equality for African Americans.

Liberals, on the other hand, will look at him and say, here's a man who had a real sense of how the Supreme Court's decisions can affect people on the ground.

John Yang:

You also say that Harlan was unique, in that his dissents eventually became the law of the land, that there was no — there hasn't been as forceful a dissenter.

But do you see any parallel or any analog on the court today?

Peter Canellos:

Well, certainly, the court — court liberals — and a lot of people associated this with the late Ruth Bader Ginsburg — shifted to a position of dissent in the last four or five years.

I think that Ruth Bader Ginsburg, in her later years, really looked to Harlan as an example of which he wanted her own legacy to be.

John Yang:

The book is "The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero," the author, Peter Canellos.

Peter, thank you very much.

Peter Canellos:

Thank you.