I've just finished reading a wonderful biography of Supreme Court Justice John Marshall Harlan. For those of you who aren't History Nerds, Harlan was a Justice from 1877 to 1911. During that time, the former slave owner from Kentucky became the staunchest defender of civil rights on the Court and known for his blistering dissents - many of which are now the understood law of the land. Harlan had a remarkable sense of being on the Right Side Of History. A few of his dissents:
- Plessy v Ferguson. His most famous dissent today, it was largely ignored at the time. He alone on the court argued that the XIVth Amendment actually did what it said it was going to do. He argued that the Constitution and the rights enshrined therein were "color blind" in the sense that "separate but equal" was blatantly contrary to the XIVth. His dissent was the backbone of the argument in Brown v Board of Education.
- The Civil Rights Cases. Prior to Plessy, Harlan was also the sole dissenter in a basket of cases where the majority allowed private entities to discriminate on the basis of race. Again, Harlan's interpretation of the XIVth in this case is the standard used by all civil right's law today.
- Pollack v Farmer's Loan and Trust. Pollack was a case over the constitutionality of an income tax. Harlan was one of four justices who adhered to almost a century of precedent on taxation that allowed the federal government to levy an income tax. Pollack was almost universally reviled within a few decades, but it led to the XVIth Amendment explicitly authorizing an income tax.
- United States v E.C. Knight & Co. Here, again, the Court effectively overruled Congress' authority as established in the Sherman Antitrust Act. Harlan was the lone dissenter who argued that Congress had the power to regulate monopolies.
- The Insular Cases. After the Spanish War and the acquisition of an overseas empire, the question became whether or not the peoples of Hawaii, Puerto Rico and the Philippines had constitutional rights. Harlan was in the minority - often alone again - arguing that the "constitution followed the flag."
- Giles v Harris. Harlan was one of three judges to dissent from a ruling that allowed grandfather clauses and other mechanisms to restrict Black suffrage.
- Lochner v New York. Harlan was one of four judges in the minority who felt that New York could established maximum hours for bakers. Lochner was a stain on the judiciary for decades though the logic behind Lochner and Knight has been adopted by the Roberts Court in overturning Chevron deference.
Two things that stand out. The first is that the Fuller Court on which Harlan served most of his term was the worst Court in history - even worse than the current Court which seems to take many of its cues from the majority of the Fuller Court. The second is that even in a time of profound racism and exploitation of workers of all races, there were still actually White men - Southern White men no less - willing to stand up for justice and fairness. Harlan has to be one of the top 3-4 Justices in the history of the Court because he alone for his time stood consistently on the side of the angels.
In my judgment, Harlan was the most important White figure from Lincoln until Lyndon Johnson when it came for civil rights. His arguments - lonely as the were - formed the basis for the "rights revolution" that occurred under the Warren Court. Towards the end of the biography, though, the author noted that Harlan's phrase a "color blind Constitution" has been used to roll back programs like Affirmative Action.
What's more, because Harlan hewed closely to the actual language of the Reconstruction Amendments, people like Antonin Scalia have cited him as "thoroughly originalist." Since "originalism" is a stalking horse for destroying the New Deal and Great Society, that's stretching the idea pretty damned far. One thing Harlan felt strongly about was that the Court should defer to Congress unless the Constitution was clearly being violated.
Of all fucking people, Neil Gorsuch at his confirmation hearing said, "Justice Harlan got the original meaning of the Equal Protection Clause right the first time, and the court recognized that belatedly. It is one of the great stains on the Supreme Court's history that it took so long to get to that conclusion." Once on the bench, Gorsuch has largely ignored Harlan's thinking.
The Lochner case from which Harlan dissented was used to strike down many of the early New Deal programs. This caused Franklin Roosevelt to try and pack the court to replace the hidebound old justices who deferred to Lochner. In the end, the Court bent to the necessities of the moment and FDR was able to appoint enough justices who could see beyond the blinkered plutocracy of the Fuller Court.
If Harris wins, there is a chance that she might be able to either change the composition of the Court or replace some of the older justices like Alito and Thomas - two men wedded to the Fuller Court's ignominious ideas. Whatever happens, Dobbs, the presidential immunity ruling and the overturning of Chevron have destroying the legitimacy of the Court in much the same way Lochner did and eventually Plessy was seen to do.
Hopefully, Sotomayor and Jackson are not modern day Harlan's issuing dissents against a lawless and unjust Court until one day their vision is able to carry the day.
