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How dissenting opinions win out in the end

The three liberal justices on today’s Supreme Court may be in for an epic run of dissents. More than 100 years ago, one justice showed how to do it well.

A painting in Dubuque, Iowa, of the late Supreme Court Justice Ruth Bader Ginsburg, who noted that dissents sometimes transform into the opinion of the court "in the next generations."
A painting in Dubuque, Iowa, of the late Supreme Court Justice Ruth Bader Ginsburg, who noted that dissents sometimes transform into the opinion of the court "in the next generations."Mario Tama/Getty

When the end-of-term decisions begin to flow this month from the newly remade Supreme Court — the court that Donald Trump built — there will be ghosts in the chamber.

One will be that of Ruth Bader Ginsburg, the beloved liberal whose untimely death afforded Trump the last of his three high-court appointments. In her final years, she came to realize that, like other justices who were outnumbered in their times, she would leave her most robust legacy in dissent.

The other ghost is that of a man Ginsburg cited as her role model, John Marshall Harlan, the justice from Kentucky known during his long tenure from 1877-1911 as “The Great Dissenter.” He will be there to remind the dissenters on this court that it is possible to triumph in posterity, when their views finally become the law of the land.

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Most famously, Harlan was the sole dissenter in cases that took away the rights of African Americans — the most disgraceful run of decisions in the court’s history. Only Harlan stood up for the spirit, intent, and plain meaning of the Constitution.

Less noticed today is the fact that he was the lead dissenter on a range of almost equally offensive cases in which wealthy Supreme Court justices blocked efforts to curb the economic injustices and inequalities of the Gilded Age.

Unlike the race cases of Harlan’s era, which were, sadly, accepted by the majority of Americans, these economic decisions were not. They illustrate what happens when the majority of the Supreme Court is more conservative than the majority of the people, as is the case now, and when the court settles into a pattern of obstructionism.

This has played out several times in the nation’s history. It happened in Harlan’s era. And it happened again during the 1930s, when the court invoked some of the precedents that Harlan had fought against to invalidate large portions of President Franklin D. Roosevelt’s New Deal.

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There is no guarantee that the court will be obstructionist now, even as the Trump-appointed justices rule on Joe Biden’s agenda. History is replete with examples of justices who were chosen with a particular set of expectations and proceeded to defy them completely. Harlan himself, who grew up in a slave-owning family and was picked as something of a token Southerner, surprised everyone by becoming the court’s lone defender of Black rights.

Still, current-day fears of Supreme Court obstructionism are understandable, given the politics that surrounded Trump’s court appointments. And the cases argued this term — including the fate of Obamacare, the Voting Rights Act, and religious exemptions from anti-discrimination laws — present a tension between politics and fundamental rights that would be familiar to the justices of Harlan’s era.

Supreme Court Justice John Marshall Harlan.
Supreme Court Justice John Marshall Harlan.Brady-Handy Photograph Collection/Library of Congress/Wikimedia Commons

Thus, there is a real chance that many people will once again be monitoring the court’s dissenting opinions as diligently as the majority rulings.

“I think it’s good when we look back to see that there were people who thought the court’s judgment was wrong and wrote the judgment that was right,” Ginsburg is quoted as saying in “Conversations With RBG,” by Jeffrey Rosen. “It starts out as a dissent and then, in the next generations, becomes the opinion of the court.”

As Ginsburg herself noted, multiple justices have seen their dissents vindicated by history. Massachusetts native Benjamin Curtis wrote a powerful dissent in the notorious Dred Scott case of 1857 and promptly quit the court in protest. Justices Oliver Wendell Holmes Jr. and Louis Brandeis saw their views on the First Amendment, originally expressed in dissent, become foundations of free-speech doctrine. But only Harlan built an almost entirely parallel set of interpretations to the court rulings of his era and found himself proven right over time.

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The race cases — in which he voted to uphold civil rights, voting rights, access to interracial education, and an end to the notorious separate-but-equal doctrine — were prime examples, cited by Ginsburg.

But the economic decisions rendered by the ideologically rigid court of the Gilded Age illustrate how long it can take to overturn even the most troubling precedents.

The best hope for people frustrated by today’s court decisions would be for some of the same justices who joined in the original rulings to change their minds. That is what transpired in the court’s consideration of the Sherman Antitrust Act, the bold legislation that gave the Justice Department the power to break up monopolies that serve to restrain trade.

This was an epic challenge of the Gilded Age, when entire industries joined with railroads to control the production and distribution of goods. That enabled them to set higher prices for consumers and lower wages for workers. When the Cleveland administration went after the notorious Sugar Trust, which controlled 98 percent of production, it sent tremors throughout the business elites. They had allies on the Supreme Court, where most of the justices had gotten rich in private law, including by representing railroads against government regulators. In a twisted opinion in a case called U.S. v. E.C. Knight Co., Chief Justice Melville Fuller claimed that while the government had shown that the trust controlled the manufacture of almost all the nation’s sugar, it hadn’t proved any restraint of trade. That was a puzzler, since anyone who has complete control over production should also be able to dictate pricing.

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Harlan, alone, thundered about the court’s capitulation to the trusts that were strangling the economy. “Did anyone expect to find in the written agreements which resulted in the formation of this combination a distinct expression of purpose to restrain interstate trade or commerce?” he wrote, incredulous.

Surprisingly, his colleagues started to see things more nearly through his eyes and within a few years began to pull back from the E.C. Knight ruling. By the time of Harlan’s death, 16 years later, antitrust actions were more frequent and more often accepted by the court.

When some of the same wealthy justices overturned a century of precedent to declare the income tax unconstitutional, Harlan’s fiery dissent was widely circulated among the public and read into the congressional record by Cordell Hull, a young congressman who used it to stoke opposition to the court’s position. Eighteen years after the initial ruling, Hull succeeded in getting 42 of the 48 states to approve the 16th Amendment to the Constitution, undoing the court’s mistake and making an income tax a permissible option for funding the government.

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Lochner v. New York, an infamous 1905 ruling in which the court imposed an amorphous “right to contract” that thwarted government labor regulations, was even harder to defeat. Harlan’s dissent urged justices to show greater deference to state legislatures and Congress in determining which health, safety, and labor protections were necessary. Most Americans agreed, but the court didn’t budge. In the 1930s, the justices used the Lochner precedent to void state minimum-wage laws, along with many of FDR’s New Deal initiatives.

In the face of Roosevelt’s threat to expand the court, two swing justices suddenly backed off. Never again would a New Deal program be struck down, and Lochner became a dead letter.

Today, both liberals and conservatives decry the “Lochner era” as synonymous with judicial overreach. The late Chief Justice Charles Evans Hughes called the court’s rejection of the income tax a “self-inflicted wound.” The E.C. Knight case, too, is met today with shaking heads and frowns, as unseeing justices allowed the manifest inequities of the Gilded Age to exist far beyond the period when political will dictated otherwise.

As for Harlan, his prescience was rewarded with the placement of his portrait in the judicial conference room where today’s justices meet to decide cases, his brow furrowed as he looks confidently into the future. The future was good to him. His posthumous reputation far exceeds those of his colleagues from the late 19th century. He got it right when they often got it wrong.

The justices assembled beneath his discerning gaze would do well to take notice.

Peter S. Canellos is managing editor of Politico and former editorial page editor of The Boston Globe. He is the author of “The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero,” which will be available Tuesday.