STEVE INSKEEP, HOST:
An old saying holds that history is written by the winners. Today we have a story of a man who made history with what he wrote, even though he lost. John Marshall Harlan was a U.S. Supreme Court justice on the court in 1896 when it endorsed racial segregation, and Harlan was the only justice who voted no, the only one who wrote a dissent. Peter Canellos wrote a new biography of Harlan.
PETER CANELLOS: His dissent was largely invisible in the white community. But it was, like, read aloud in Black churches. It was published in Black newspapers. This was the one link of hope that white people might support them and see the law through their eyes.
INSKEEP: It took generations, but eventually the dissenter won - the court ruled differently. Peter Canellos is an observer of modern-day politics as an editor at Politico. He's also studying a much earlier time, when the court upheld a Louisiana law forcing Black and white people onto separate railway cars. John Marshall Harlan, the guy who dissented, was a white man from Kentucky, from the South. He grew up before the Civil War in a family that enslaved people.
CANELLOS: One of the great mysteries of Harlan's career is that he grew up in such a family and yet became the leading defender of Black rights of his generation.
INSKEEP: After the war, constitutional amendments ended slavery, and Harlan embraced that change. Part of the reason might have been a Black man who grew up with them, rumored to be his half-brother. In 1877, John Marshall Harlan - named for John Marshall, a great chief justice - was appointed to the court himself.
CANELLOS: He was a forceful dissenter, and his entire career is a testament to the power of dissent. It's also, in some ways, a testament to the way that the legal academy neglects dissent. You know, law is taught case by case through the majority opinion. Most of those casebooks don't even have dissents in them. But when you study law and you read it and you see Harlan's dissents, if you can get a hold of them - and the one in Plessy v. Ferguson, generally, is widely distributed, so that one stands out - he's speaking in a different language. He brings in powerful notions of justice. He's addressing the big issues facing the country.
This was true not only in the race cases but in cases during the Gilded Age about economic protections, economic freedoms. On the race cases, it started in 1883 on this very, very high-profile case. Unlike Plessy v. Ferguson, the Civil Rights Cases of 1883 was something that was a major topic of public conversation. It was - they were interrupting theater productions in Atlanta to report on the court's deliberations. The entire white establishment essentially decided that sacrificing Black rights was the cost of unity with the South. Harlan took a totally opposite approach. He said, yes, we can enforce these post-Civil War amendments that guarantee equality. And he broke with his colleagues in a very fundamental way in that case.
INSKEEP: I want to sketch for people what is happening in the country at that time. Harlan was born in the time of slavery. Then came the Civil War. Then came Reconstruction, a period where African Americans in the South had a lot of political rights, and some were even elected to office, and a great many voted. And then came the era of Jim Crow, when white Southerners reestablished total control. This is the 1880s, the 1890s. Is this the period where Harlan begins to write his great dissents?
CANELLOS: Absolutely. And that's what's striking about it. I think the court of that period has gotten way too little attention in history because it was responsible, essentially, for segregation and clearing the way for segregation. That court, the Fuller court, ruled against civil rights. It ruled against voting rights for African Americans. In Plessy v. Ferguson, it approved the legal architecture of segregation. As Harlan predicted in his dissent in Plessy v. Ferguson, it consigned the nation to hundreds of years of racial strife. I mean, he says in that dissent, you know, what can more surely sow the seeds of racial discord than a system under the law that creates two separate systems of rights - one for Blacks, one for whites?
INSKEEP: How was it that the court majority reached back into the Constitution and the law and found that separate but equal policies for different races were totally fine, and then how did John Marshall Harlan go into the same Constitution and the same law and find a completely different conclusion?
CANELLOS: Well, I think it's not too mysterious. I hate to say it, but I think notions of white supremacy, prejudice and, frankly, expediency are very visible in the majority opinion in Plessy v. Ferguson. You know, you go back in these cases and you try to say, well, could this be an issue on which reasonable jurists might disagree? And the answer essentially is no in Plessy v. Ferguson. I mean, the majority opinion is an abomination. The key line in the majority opinion says this is a law that was specifically enacted to put Black people in a separate carriage. And he said, well, if there's any stigma here, it's because Black people themselves are putting that construction on it. I mean, Harlan's dissent, which was forceful, essentially called their bluff on everything. He noted the plain language of the Constitution, which said equal protection under law in the 14th Amendment is the law of the land.
And Harlan didn't just call them out on the law; he issued kind of a manifesto that went to the real heart and soul of what the law is and what the Constitution means in this country. And I think his dissent in Plessy v. Ferguson is one of the great documents in American history. And, you know, everybody on this program should read it.
INSKEEP: What's it been like for you the last few years, I assume, to be going through these court cases from another century at a time when judges and justices and the Supreme Court itself have been so much in the news?
CANELLOS: Well, I think it suggests the parallels between that era and this era. We may well be entering a period when the Supreme Court is far more conservative than the country. That's what happened in the 1880s and 1890s. There was a long string of pro-business presidents of both parties that appointed Northern railroad attorneys, essentially, to the Supreme Court, and then you have this economic crisis and this racial crisis, and they're not equipped to deal with it. We had the wrong people on the Supreme Court, and they set the country back decades. I hope that doesn't happen.
And there's certainly a lot of history in the Supreme Court to suggest that justices who are appointed with one set of expectations end up completely defying them. So that may well happen this time. But we may also be entering a period where, as Ruth Bader Ginsburg suggested, dissent is every bit as important as the majority opinion, where today's justices who dissent on cases will be the Harlans of the next generation.
INSKEEP: Peter S. Canellos is the author of "The Great Dissenter: The Story Of John Marshall Harlan, America's Judicial Hero." Thank you so much.
CANELLOS: Thank you, Steve.
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