The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Outside the Kennebec County, Maine courthouse is a statue of Chief Justice Melville Fuller. Most people have no idea who Melville Fuller is. The Cleveland nominee served as Chief from 1888-1910. Perhaps his most famous decision is Pollock v. Farmers' Loan & Trust Co., which declared the federal income tax unconstitutional. He also wrote the majority opinion in U.S. v. E.C. Knight, which found that the federal Sherman Antitrust Act could not be applied to the local manufacture of sugar.
The statue of the Mainer was installed in 2013, 125 years after he was appointed Chief Justice. Now, the Maine Supreme Judicial Court has asked the county to consider removing the statue. Why? Fuller was one of seven Justices who joined the majority in Plessy v. Ferguson.
Pop quiz! Do you know who wrote the majority opinion? Everyone knows Chief Justice Roger Taney wrote Dred Scott. Some people know that Justice Story wrote Prigg v. Pennsylvania. But most people do not know that Justice Henry Billings Brown wrote Plessy. He was a fairly insignificant justice. Also in the majority were Justices Stephen Field, Horace Gray, George Shiras, Edward Douglass White, and Rufus Wheeler Peckham. In due time, all of these Justices will be subject to cancellation.
The only dissenter in Plessy was Justice John Marshall Harlan. But he may too be subject to cancellation. Consider his slander of Chinese people:
There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But
Also, Harlan's discussion of a "color-blind" Constitution is anti-anti-racist.
But 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.
There was one recusal in Plessy. Fortunately, Justice David Brewer did not participate. He had to suddenly leave for his home in Kansas after his daughter unexpectedly died. He may be safe for now. But he wrote the majority opinion in Muller v. Oregon, which was also unanimous.