Book review: “The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero” by Peter S. Canellos

I am back from taking a reading break for the past couple months. I chased one of my MMORPG phases until I got absolutely bored and I’m glad I’m recovered. Now I can obsessively read instead, which is much more healthy ha. After picking carefully through the non-fiction selection of my local library (passing titles such as The Real Anthony Fauci and Pandemia: How Coronavirus Hysteria Took Over Our Government) I settled on the biography of a character I had never heard of: Supreme Court Justice John Marshall Harlan. The blurb of The Great Dissenter described him as An American who stood against all the forces of the Guilded Age America to fight for civil rights and economic freedom.

The Great Dissenter follows the life of John Marshall Harlan from a boy in the border state Kentucky in the tempestuous years leading up to the Civil War, through his change of heart from merely maintaining the peace between North and South to adamantly advocating for the civil rights of African Americans and minorities as a lone voice on the Supreme Court.

The book revisits many of the Supreme Court cases I had learned in my U.S. history courses in high school, for example, Plessy v. Ferguson. The Plessy case established the doctrine of “separate but equal” that put a rubber stamp on segregation that defined the Jim Crow era and ended the hopes of black Americans during Reconstruction. That doctrine would be the law of the land for another sixty years until Brown v Topeka Board of Education ruled that “Separate education facilities are inherently unequal.” What happened during that time in between? What happened to the ideals that inspired the 13th, 14th and 15th Amendments? How could you read those any other way than giving equal rights to all Americans? This book calls out the “fig leaves” that Americans as well as the Supreme Court used to hide the racism that blotted the history of the United States. It didn’t go unaddressed on that court, as Justice Harlan gave ringing dissents that became the legal basis for a next generation of activists and justices.

I found several inspiring themes throughout the book:

A moderate stance in politics isn’t always a moral one. I understand calls for moderation myself, as I have made that plea as well. But I think there are times in history when right is wholly on one side and moderation is in itself immoral. What is a moderate position between slavery and abolition? You don’t hindsight to make a judgment. It was calls for moderation that led many like Harlan to embrace slavery as a necessary evil:

In the past, when confronted with a deeply polarizing conflict, he gravitated to the center, seeking to bridge divisions by offering a half loaf to each side. Now, in the wake of war, those disputes were no longer understandable or tolerable to him. No longer was the Constitution ambiguous. Law and wisdom and enlightenment were all on one side.

The Republican party quickly sacrificed their high-minded ideals after the war in a pragmatic bid of making peace with the South as well as favoring business interests that disliked government intervention in business interests. The Supreme Court had the task of interpreting the new post-war Amendments of the Constitution that ended slavery and extended equal treatment under the law to blacks. But they quickly dissolved any progress in a mire of legal technicalities. In Harlan’s first 8-1 dissent in The Civil Rights Cases of 1883, Harlan wrote of his co-justices: I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and verbal criticism.

In Plessy v. Ferguson, his dissent again called out his fellow justices and Americans: The white race deems itself to be the dominant race in this country, but in the 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. Harlan stated in his dissents what should be true and what was written in law, but the rest of white Americans chose to ignore.

You recoil reading some of the opinions of his fellow justices. While they often tried to couch their justifications for racism in technical terms, the prejudice isn’t far from the surface. In The Civil Rights Cases of 1883, the majority opinion says that black eventually need to give up the crutch of government support. This being in the midst of the dismantling of the rights of black Americans and the institutionalization of Jim Crow:

When a man has emerged from slavery, and by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorites of the laws.

In Plessy v. Ferguson, the majority assert that blacks choose to feel inferior when they are separated from whites. Talk about victim-blaming:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it.

Also in Plessy, the majority assert that racism is only natural and can’t be addressed by law:

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.

While Justice Harlan didn’t live to see these opinions overturned, his dissent were eventually acknowledged as correct.

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