Reviews | The Supreme Court has a trademark problem. Here is one way to fix it.

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Harlan is a hero to many, if not most, constitutional scholars. Justice Thurgood Marshall, the first black judge on the Supreme Court, is said to have “Admired Harlan’s courage more than any judge who has ever served on the Supreme Court.” In his lowest moments as senior attorney for the NAACP Legal Defense Fund, Marshall renewed his courage by reading Harlan’s dissent in 1896 in Plessy v. Ferguson, the SCOTUS decision allowing segregation in the United States. Marshall believed that the opinion of Chief Justice Earl Warren in 1954 in Brown v. Education Council – the case that overturned Plessy in declaring segregation illegal and which Marshall himself supported – was secondary at best. As Marshall saw it, according to a colleague, “Earl Warren was writing for a unanimous Supreme Court. Harlan was a lonely, lonely figure who wrote for posterity.

Why name the building, you will ask? After all, the White House and the Capitol weren’t named after historical figures either. Instead of tying the seats of our branches of government to one person’s legacy, the United States has chosen to keep them anonymous, instead communicating their meaning and purpose through the example of successive generations.

But, at least as far as the Supreme Court is concerned, it does not work. The American people are losing any shared sense they always had of what the Supreme Court stands for and what it should stand for. Today, Supreme Court approval is at an all-time low. The symbolic anonymity of the building – like the dresses judges wear – is no longer the source of strength it once was.

Our country is revisiting our history. We struggle over how we should tell this story and who we should honor. We are struggling today to know how to speak of Thomas Jefferson, who wrote that “all men are created equally” while holding men in chains. Or if we should celebrate Alexander Hamilton, who fought for the ratification of a Constitution that counted slaves as three-fifths of a person. Or how to think of the Supreme Court as an institution supposed to ensure justice and yet once considered that none of the rights or privileges of American citizenship could be granted even to free blacks.

Harlan embodies this struggle. As described in the recent biography of Peter Canellos, The great dissident, Harlan was born into a slave family in Kentucky, the son of James Harlan. (Canellos is editor-in-chief at Politico.) Before John was born, an 8-year-old boy and his mother introduced themselves to James Harlan’s. There are rumors that the boy was the son of James, but all we know for sure is that James welcomed the mixed-race boy – who was called Robert Harlan and would go on to become one of the black Americans. most prominent of his time – sold the boy’s mother to the south and ensured that Robert received an education alongside John and his other children.

From then on, the stories of Robert and John became inextricably linked, and they are as painful as they are redemptive.

In the years leading up to the Civil War, as an aspiring politician with all the privileges of growing up in a prominent family, John Marshall Harlan believed that preserving the union was paramount – and that the abolition of the slavery was not. He campaigned for the Know-Nothing Party despite its virulent anti-immigrant and anti-Catholic platform, mainly because they were neither abolitionists nor secessionists. He was instrumental in preventing Kentucky from joining Confederacy and fought in the Union Army, but criticized President Abraham Lincoln’s wartime measure emancipating all slaves in rebel states.

In the aftermath of the war, Robert Harlan prospered as a rich, cosmopolitan, and self-taught black man in Ohio. A friend of President Ulysses S. Grant and politically influential within the Republican Party, he worked alongside Frederick Douglass and PBS Pinchback to create opportunities for black communities. But as the federal occupation of the South became politically untenable and the Ku Klux Klan, mob lynchings and legally mandated full-scale segregation took hold, the future Robert Harlan envisioned for black America began to take hold. remove. Meanwhile, the man he grew up with – John Harlan – was being considered for a Supreme Court seat. When suspicious Republicans questioned John’s commitments to the postwar civil rights amendments, it was Robert who used his political connections in the Rutherford B. Hayes administration to vouch for John. Just six days after Robert assured John he would get the green light, Hayes submitted John’s nomination to the Senate Judiciary Committee.

After arriving on the field, Judge Harlan and his wife became Washington’s ultimate insiders. She was a confidante of First Lady Lucy Hayes and regularly hosted cocktail parties attended by hundreds of Washington’s elite. He was a favorite guest speaker of what would become George Washington University and the DC Bar Association, known for his good looks, athletic ability, bouncy humor, and colorful stories.

But when it came to his job on the Supreme Court, John Marshall Harlan was on his own. On a case-by-case basis, Harlan has expressed his dissent. Despite his vacillating political positions before joining the court, Harlan made it clear time and again that the persistence of racial injustice and inequality was an existential threat to the Constitution. When the court struck down the Civil Rights Act of 1875 that guaranteed black Americans access to railroads, inns and theaters, he dissented. When the court undermined the government’s ability to break illegal monopolies, it dissented. And when the court ruled that the supposedly separate but equal wagons were constitutional, no other justice joined him when he wrote “in the eyes of the Constitution, in the eyes of the law, there is in this country no upper ruling class, dominant and citizens … all citizens are equal before the law.

One of his dissent sparked a letter from Douglass in 1883 in which Douglass reminded Harlan that “a man with God is a majority.”

As a new mother, I think of Harlan differently now. I admired his courage and clarity of intention. It was as if he was speaking through the decades to those of us sitting in our law classrooms. But now I’m thinking about how to raise a child to be both in and out of his time while being able to see so clearly what everyone around him can’t. He defends the idea that anyone can find the truth no matter what the circumstances of their upbringing, that it is never too late to change their mind and that the voice of one person can bring us closer to ‘all the more so for the fulfillment of the promise of the American experience.

At first, Harlan pleaded to preserve the union at all costs. Then he fought in a war to keep it going. And after the war, when he saw that the poison of racism and apartheid was once again about to destroy his beloved country – knowing that he could not persuade his contemporaries of what he knew to be true – he wrote to us instead. He wasn’t perfect. You can find in his writings a number of things that you can object to. I do not defend them.

But isn’t it also appropriate to recognize – to set an example for our children – those who have changed for the better? When we think about our history, we are right to honor those whose very lives were synonymous with justice, mercy, and unfailing wisdom. But what about those who struggled to find the right answer and grew up? And those who, while they were alone in their convictions, refused to join the crowd?

At this time when we finally have the political will to demolish the monuments to Confederate traitors, can’t we also build them for complicated union heroes who remind us that the history of our Supreme Court can be filled with disappointments and disappointments. failures, but that there are those who stand alone to bend their moral bow to justice?


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