John Marshall Harlan

See also Harlan's grandson John Marshall Harlan II, who was also an American Supreme Court associate justice.

John Marshall Harlan

John Marshall Harlan (June 1, 1833 – October 14, 1911) was an American Supreme Court associate justice. He is most notable as the lone dissenter in the 1896 case of Plessy v. Ferguson, which upheld Southern segregation practices. He was also the first Supreme Court justice to have earned a modern law degree.

Harlan was born into a prominent Kentucky slaveholding family, his father a well-known Kentucky politician and former Congressman. Harlan graduated from Centre College and began his career when he joined his father's law practice in 1852. He was a Whigh like his father, but when the party dissolved he began switching between several parties, such as the Know Nothings. Harlan was elected county judge of Franklin County, Kentucky in 1858. He enlisted in the Union Army in 1861 when the Civil War broke out, rising to the rank of colonel.

Harlan firmly supported slavery but fought to preserve the Union. He said he would resign if President Lincoln signed the Emancipation Proclamation. He did not resign when Lincoln did sign it, but did leave the army a few months later to care for his family following the death of his father.

He resumed his career and was elected Kentucky Attorney General in 1863. Harlan joined the Republican party in 1868 and remained a Republican for the rest of his life, and, befitting his new party, he turned strongly against slavery, calling it "the most perfect despotism that ever existed on this earth." He ran for governor in 1871 and 1875, losing both times. He was appointed to the Supreme Court in 1877 by President Rutherford B. Hayes, whom he had helped win the 1876 Republican party presidential nomination.

On the Court, Harlan became known as "the great dissenter." As the Court moved away from interpreting the Reconstruction Amendments to protect African Americans, Harlan wrote several eloquent dissents in support of equal rights for African Americans and racial equality. In the Civil Rights Cases (1883), the Supreme Court struck down the Civil Rights Act of 1875, holding that the act exceeded Congressional powers. Harlan alone dissented vigorously, charging that the majority had subverted the Reconstruction Amendments: "The substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism."

In 1896, the Supreme Court handed down one of the most reviled decisions in its history, Plessy v. Ferguson (1896), which established the doctrine of "separate but equal" as it legitimized Southern segregation practices. The Court, speaking through Justice Henry B. Brown, held that separation of the races was not inherently unequal, and any inferiority felt by blacks at having to use separate facilities was an illusion: "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of any-thing found in the act, but solely because the colored race chooses to put that construction upon it." (While the Court held that separate facilities had to be equal, in practice the facilities designated for blacks were inevitably subpar.) Harlan was once again alone in dissenting. In stirring language that would inspire Civil Rights activists for generations more, Harlan declared: "But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved." Harlan argued that the Louisiana law at issue in the case, which forced separation of white and black passengers on railway cars, was a "badge of servitude" that degraded African-Americans, and correctly predicted that the Court's ruling would become as infamous as its ruling in the Dred Scott case.

Harlan's liberal views on race did not extend to the Chinese. He wrote this biased statement in his dissent: "There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race."

Harlan was the first justice to argue that the Fourteenth Amendment incorporated the Bill of Rights against the states, in Hurtado v. California (1884). His argument would later be adopted by Hugo Black, and today it is widely accepted that the Fourteenth Amendment incorporates nearly all of the Bill of Rights.

Harlan also dissented in Lochner v. New York, though he agreed with the majority "that there is a liberty of contract which cannot be violated even under the sanction of direct legislative enactment."

Harlan died on October 14, 1911 after 34 years with the Supreme Court, one of the longest tenures in history. Many regard Harlan as one of the most important, controversial, and visionary Supreme Court Justices in U.S. History.