The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
After the Supreme Court invalidated the use of race in college admissions in SFFA v. Harvard, NYT columnist Jamelle Bouie wrote a column questioning the legacy of Justice John Marshall Harlan. The Supreme Court majority's reliance upon language from Harlan's opinion, Bouie suggested, might not be as anomalous as some of the Court's critics would like to think. Though credited with the claim that "the Constitution is colorblind," Harlan was no anti-racist.
The language of colorblindness that Roberts and Thomas use to make their argument comes directly from Justice John Marshall Harlan's lonely dissent in Plessy v. Ferguson, the decision that upheld Jim Crow segregation. "There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens," wrote Harlan, who would have struck down a Louisiana law establishing "equal but separate" accommodations on passenger railways.
But there's more to Harlan's dissent than his most frequently cited words would lead you to believe. When read in its entirety, the dissent gives a picture of Harlan not as a defender of equality, but as someone who thinks the Constitution can secure hierarchy and inequality without the assistance of state law. It's not that segregation was wrong but that, in Harlan's view, it was unnecessary. . . .
Harlan's brief for the colorblind Constitution rested, within the text, on a belief in the inherent superiority of white Americans and the basic inferiority of their Black counterparts. "Blacks and whites could be 'equals before the law,'" notes Hutchison, "but that did not mean they were equals in any other respect — in the social realm, racial inequality would rule 'for all time' if the nation remained blind to race 'in view of the Constitution.' "
This column prompted an extensive reply from Peter Canellos, author of The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero in Politico. His reply begins:
There is no high court for historical injustices, no tribunal to which a historical figure can appeal when their reputation is maligned. Yet simple fairness and the need for a balanced view of the past require some attempt at reputational justice. Even in death, people should reap what they sow. It's a question that would have interested the Supreme Court Justice John Marshall Harlan, who served from 1877 to 1911. With his religious values, unusual sense of how judicial opinions shape American destiny and his many dissents that appealed to future generations, Harlan believed in the long judgment of time.
But he might have shuddered at the thought of his own reputation in the dock.
Harlan's fame rests as the sole dissenter in case after case that took away the rights that Black people were granted in the post-Civil War amendments to the Constitution. Those dissents not only inspired African American leaders in his time but provided an early roadmap for the victories that Black lawyers won in the 20th century. The fact that even one — though only one — white judge had seen the law in terms of its effect on Black people kept hope alive in the Black community. From church pulpits, he was hailed as a prophet in his time.
Canellos rejects Bouie's interpretation of Harlan, suggesting it results from wrenching Harlan's views out of context and transposing them into contemporary debates.
Bouie suggests that the notion of a purely color-blind Constitution can be used to cement white privileges in the law. Fair enough. He also goes on to suggest that this was what Harlan intended to do.
A closer look at Harlan's Plessy dissent, and the wider arc of his career, does not support that contention. . . .
Harlan was, indeed, far-sighted, but it's not credible to suggest his main concern was preserving racism at home while shielding it from critics abroad. His concern for the plight of Black people was straightforward and sincere, a feeling that Black people had been denied their legal rights as Americans. They had gotten a rotten deal. And concerns over white America's treatment of Black people were reflected in almost every aspect of his life during his years on the bench.
After a fairly thorough survey of Harlan's record (covering far more column inches than Bouie had at his disposal in the NYT) Canellos concludes:
It is commonly said that all such figures were "of their times." Certainly, their words and actions should be judged in the context of their times, including the prejudices that attached to that period. But that doesn't mean that every person is fated to share those biases, or that anyone whose work responds to the peculiar challenges of their era must be held in suspicion.
In Harlan's case, his willingness to acknowledge the wrongs done to Black people helped sustain faith in the legal system at one of its worst hours. His actions convinced Marshall, Motley and others that it was possible to persuade white judges to enforce the rights of Black people; imagine the disgrace to the system if every white judge had refused to uphold the Civil Rights Act of 1875, or if every white judge had rallied around the separate-but-equal doctrine.
It seems to me that the injury to public discourse in failing to recognize those who broke the mold or stood apart — or in seeming too eager to discredit them — is precisely that it forecloses the possibility of exemplary behavior. If John Marshall Harlan was a prisoner of his times, so are we prisoners of ours. And that serves to extinguish hope for a better world.