The Volokh Conspiracy

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On the 125th Anniversary of Plessy v. Ferguson, NY Times Publishes Op-Ed on Justice Harlan

"He did more than anyone since the Continental Army to enshrine dissent as an American tradition and a badge of honor, and showed that history would look positively on those who voice truth in the face of even a seemingly monolithic consensus — something today’s leaders can take to heart."


Peter Canellos has published a new book, titled The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero. I spoke with Peter earlier this year about his project, and was very impressed. Today, on the 125th anniversary of Plessy, Peter wrote an op-ed in the Times about Harlan. Here are a few snippets:

When Harlan died in 1911, Black congregations around the country organized spontaneous memorial services without expecting that a single white person would attend. Three of these all-Black services were in Washington, D.C., culminating in a huge multifaith gathering at the cavernous Metropolitan A.M.E. Church at which Harlan's Plessy dissent was read aloud.

All of this was invisible to the white community. But a few decades later, Thurgood Marshall and his team at the NAACP Legal Defense Fund began scouring the country for plaintiffs willing to challenge segregation laws, knowing that the Ku Klux Klan was on high alert. Harlan's dissent provided the sole beacon of hope that the courage of the Black defendants might someday be rewarded.

"Marshall's legal staff would gather around him at a table in the office to discuss possible new legal theories for attacking segregation," recalled Constance Baker Motley, one of Marshall's top lieutenants. "Marshall would read aloud passages from Harlan's amazing dissent. I do not believe we ever filed a brief in the pre-Brown days in which a portion of that opinion was not quoted." . . .

When Thurgood Marshall died in 1993, Judge Motley wrote movingly of how Marshall himself, as a Supreme Court justice from 1967 to 1991, often was in the minority: "I believe I know what sustained Marshall spiritually during all of those heartbreaking years when the Warren Court decisions were being denuded. Marshall had a 'bible' to which I believe he must have turned during his most depressed episodes. The 'bible' would be known in the legal profession as the first Mr. Justice Harlan's dissent in Plessy v. Ferguson. … Marshall admired the courage of Harlan more than [that of] any justice who has ever sat on the Supreme Court. Even Chief Justice Warren's forthright and moving decision for the Court in Brown I did not affect Marshall in the same way. Earl Warren was writing for a unanimous Supreme Court. Harlan was a solitary and lonely figure writing for posterity."

I have long admired Justice Harlan's fortitude. He was willing to fight back against popular sentiments, and withstand any backlash from those in his own camp. Fortitude is among the most important attribute a jurist can have.