Named after the nation’s first chief justice, John Marshall Harlan was born “on the very hinge of a society splitting in half,” writes Peter S. Canellos in his sweeping new biography of Harlan, “The Great Dissenter.” In 1833 when Harlan was born, his native Kentucky was part of the south but also the frontier, still a slave state but one increasingly divided on the subject, and home to a small but growing population of free Black people.
For the family in which he grew up, Canellos writes, “American history would be as much a religion as the family’s Presbyterian faith.” From James Harlan, his lawyer father, he inherited a prominent and privileged name, a reverence for the US Constitution, and a possible half-brother, an enslaved man named Robert Harlan. Canellos hedges on the matter, citing some reports that James Harlan merely took a special interest in Robert, but concludes that it seems likely Robert, born to an enslaved woman when James was 16, was his son.
Canellos, an editor at Politico who formerly worked for the Globe, charts Robert’s life story alongside John’s, both Harlans forging their own paths through a changing America. Smart and hard-working, Robert was barred from the legal study the white Harlan men pursued, but he made his own way in the more freewheeling side of Kentucky life, including horseracing and gambling. Growing up, Canellos writes, the younger Harlan could have seen Robert as “an adventuresome uncle, cousin, or family retainer from a very different mold.” But having a Black, enslaved relative, though not unusual among scions of the white South, seems to have made a difference in how John Harlan later thought, wrote, and judged cases about race.
By the time of the Civil War, John Harlan had ridden the waves of several political parties that formed and dissolved over the topic of slavery. Harlan was not an abolitionist, but he was a Unionist, and he fought for the North. Robert Harlan, then a successful businessman in Cincinnati, moved his family to England for the duration. The sections about Robert’s attempt to triumph over the English horseracing establishment are more vivid than those about John’s political infighting and even his actual fighting. Still, service in the war added another dimension to a man who was beginning to grow into the jurist he would become.
After the war, John Harlan returned to the law and politics, serving as Kentucky’s attorney general and twice running unsuccessfully for governor, as a Republican, a conversion his enemies decried but which he defended as an evolution of belief. As Canellos writes, “he declared, echoing his hero Henry Clay: ‘Let it be said that I am right rather than consistent.’”
The presidential election of 1876 effectively traded a Republican in the White House for the end of Reconstruction, and soon thereafter John Harlan was seated on the Supreme Court as “a kind of human olive branch” to white southerners, who might be able to see him as one of their own. A “proud, portly, good-humored gentleman” by this time, he was, Canellos notes, “no rebellious outsider.” Yet in time Harlan’s role on a Court dominated by “colorless, dutiful justices” would stand out for its boldness, and his dissents would light a way for future generations to pursue a jurisprudence of equality.
Harlan dissented notably in the Civil Rights Cases of 1883, arguing that the 14th Amendment authorized federal action and that the 13th didn’t merely overturn slavery but demanded actual freedom for Black Americans. His dissent in 1896′s Plessy v. Ferguson was blistering, calling the “separate but equal” accommodations it allowed as wrong as the Court’s ruling, in the case of Dred Scott, that Black Americans were not citizens. Harlan’s arguments in these and other cases led to widespread memorializing among the Black press after he died in 1911.
Frederick Douglass, writing after Harlan’s dissent in the Civil Rights Cases of 1883, noted the power of a single voice against injustice. During the early days of his own abolition work, he said, “I was wont to console myself with what seemed to many a transcendental idea, that one man with God is a majority. … The colored people and their friends may well enough avail themselves of this sublime consolation in their present situation, and in view of the righteous and heroic stand taken in defense of liberty and justice by Justice John M. Harlan.” Thurgood Marshall, later to be a frequent dissenter himself, referred to Harlan’s dissent in Plessy as his “Bible.”
Although John Harlan is the book’s titular protagonist, Robert Harlan is its most intriguing character — on his own terms, not merely as a vehicle for understanding John’s conscience on race. The author’s affection for both men emerges in his writing, which at times edges close to excusing John’s less enlightened views (including his participation in unanimous opinions excluding Chinese Americans from equal standing). Still, overall this is a sensitive and smart excavation of two men’s entwined lives.
“There are silences in American history,” Canellos writes in the book’s introduction. Hidden by one such silence is the truth about what happened to Black Americans in the years after Reconstruction, and how the United States Supreme Court’s decisions contributed to their disenfranchisement and excommunication from legal equality. With “The Great Dissenter,” and the story of the Harlan men, he has gone some distance in ending that silence.
THE GREAT DISSENTER: The Story of John Marshall Harlan, America’s Judicial Hero
By Peter S. Canellos
Simon & Schuster, 609 pp., $32.50
Kate Tuttle, a freelance writer and critic, can be reached at email@example.com.