- Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
- Peter S. Canellos, Managing Editor, Politico
- Moderator: Hon. Victor Wolski, Senior Judge, U.S. Court of Federal Claims
This Zoom event is open to public registration at the link above.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Nick Marr: Welcome everyone to this Federalist Society virtual event, as this afternoon, January 11, 2022, we’re having a “Talks with Authors” about a new book about the late, great Justice John Marshall Harlan. Now, the book is called The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero. I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our experts.
We have a great panel today, including the book’s author, to discuss this book, the legacy of this great justice. I’m just going to introduce our moderator, and then he’ll take it from there. Well, we’re very pleased to be joined this afternoon by Judge Victor Wolski. Judge Wolski is a senior judge at the US Court of Federal Claims. He also has -- he’s really good at tying bowties. So with that, Judge Wolski, the floor is yours.
Hon. Victor Wolski: Thank you, Nick. It’s really a great pleasure for me today to be here at this talk with a good friend of mine, Peter Canellos, who I’ve known for, he’s pointed out, over 40 years. We were classmates together at the University of Pennsylvania, where he was a writer for the school newspaper, and I was involved in student government. And despite our conflicts of interest, we got along pretty well, and we’ve stayed good friends over the years. I’m particularly pleased to be here for this event on Peter’s new book, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero.
Now, as I said, Peter’s a graduate of the University of Pennsylvania and also Columbia Law School. But despite going to law school, he chose to make his mark in journalism rather than law and was formerly the Washington Bureau Chief and then the editorial page editor for the Boston Globe, where he oversaw two Pulitzer Prize-winning projects and, somehow along the way, ended up being a character in the Oscar Award-winning movie Spotlight. Peter is currently the managing editor for enterprise at POLITICO magazine.
Also joining us for today’s talk is a person who needs no introduction for The Federalist Society, but I’ll introduce him anyway—our regular guest here, Josh Blackman. As you know, Josh is a professor at South Texas College of Law Houston. He graduated from Penn State University and George Mason University School of Law, clerked for Judge Danny Boggs on the Sixth Circuit, and is the author, among other things, of Unraveled and also of Unprecedented, which are two books about the Affordable Care Act. I guess we got to come up with another un-title for a third one.
Prof. Josh Blackman: The third one will be, “Undefeated.”
Hon. Victor Wolski: “Undefeated?” Or “unfunded,” perhaps. He’s also the co-founder and president of a non-profit that’s named after Justice Harlan. And I understand that the reason it was named after Justice Harlan is because he was one of the few justices that everyone, from whatever end of the spectrum politically or legally a person was, was admired by universally. Is that correct?
Prof. Josh Blackman: Among other reasons, absolutely.
Hon. Victor Wolski: Very good. That’s called the Harlan Institute, which provides constitutional education, civics education, and programming for high school students. So thank you, Josh. Now, as I said, Peter’s book was a delight to read. It’s great to see somebody who has both a legal education but also a journalist’s eye and a journalist’s ability to craft a narrative and to make the history come alive on the pages. And he’s really done a great job. I think he’s found his calling as a biographer.
And the book’s been well received. Don’t just take it from me. Republican Senate Leader Mitch McConnell, who’s biased because he’s also from Kentucky, as is Justice Harlan, said that The Great Dissenter was “a marvelous read, extremely well written. I highly recommend it.” Now, no less a luminary than -- George Will in one of his columns called the book splendid and stirring, and he found it particularly timely as legal and policy debates shift from the concept of equal opportunity towards notions of equity. Virtually, every law student remembers that day—in probably their second semester of law school—when they’re in common law class -- when you learn Plessy v. Ferguson and you read the dissent by John Marshall Harlan, and the dissent just usually rings out to a law student, and you think, “What was wrong with the rest of these guys? This guy got it. The other ones didn't.”
Harlan was known in his time, not just for that dissent, but for taking a principled position on a lot of major issues, particularly known as the one justice who was consistently vigilant and stood up for the rights of black men and women in America. His dissent in Plessy, as you know, has the proclamation “our Constitution is color-blind.” And when you read that in law school, you just can’t help but say, “Where was the rest of these guys?” Now, Peter, why thirty-some years later after law school, why did you turn to Harlan, and why this book? Was it remembering that dissent, or is it something else about Harlan?
Peter Canellos: No, no. Definitely remembering that dissent, but also remembering other dissents that I read in law school and just being struck even so many years ago that here was somebody who, a hundred years after these decisions came through, clearly saw the law in a very different way than his contemporaries and was proven right over time. None of us will have the luxury of knowing how we will be viewed a hundred years from now if we’re lucky enough to be viewed at all a hundred years from now. And Harlan was somebody who stood the test of time.
I also think that he’s a deceptively important figure in a number of different ways beyond the Plessy dissent. I think that his whole range of dissents in the race cases, but also in economic cases, helped to set the stage for many of the changes that occurred in the 20th century and in 20th century law and inspired some of the people who fought for them. So his story also sort of tells us that dissent is really important. This is not just registering an official disagreement with something. This is actually charting a path to a better outcome in the future.
As to Harlan’s significance, I would refer again to the sort of long tunnel of years. It’s been between 100 and 150 years since these decisions took place. And we now know what was important and what wasn’t important of those years on the Waite Court and the Fuller Court. And the two things that stand out are -- that was the year when segregation began, which has had a terrible effect on our civic life and continues to have a terrible effect on our civic life, the legacy of segregation. But it also was a time of tremendous economic inequality. And you have to ask yourself, “Well, how did we get to a position where some people are building castles on the Hudson and other people were living five and six to a room despite having jobs and working?”
And the answer to that traces back to these Supreme Court decisions. And if you look at the sort of full range of Harlan’s dissents, you’ll say -- not only in Plessy, but look at the Civil Rights Cases of 1883, look at the Berea College case, look at Giles v. Harris. Harlan’s forceful dissents on race really contrasted with that of the majority and identified correctly all of the problems that society was destined to face. Also, when the Supreme Court found dubious Figley reasons to declare the Sherman Antitrust Act unconstitutional initially in the E. C. Knight case and to declare the income tax unconstitutional in Pollock and to earn in Lochner and tie the hands of state legislatures for certain kinds of legislation for health and safety, Harlan called them out. And I think those dissents as well have been vindicated over time.
So you can now say, “Well, okay, we know he was right.” And then we say, “Well, what was the key to his difference?” How did he see things so much more clearly when, as Vic was alluding earlier, the Court majority was in a completely different place? The country was in a different place. So he’s an impressive figure.
Hon. Victor Wolski: Now, how much of his outlook was shaped by his nationalist views based on his being from a border state of Kentucky, being a protégé and family friend of Henry Clay, and choosing to fight on the Union side during the Civil War?
Peter Canellos: He was hugely affected by it. This was a man who was named after John Marshall, the great chief justice. He grew up in an extremely patriotic family, a family that really took to heart -- his father was pretty much the leading lawyer in Kentucky -- but a family that really took to heart the notion of what we today would call American exceptionalism. But in his time, he was intensely aware of the idea that democracy was rare, that America was standing out. The rest of the world was ruled by various forms of monarchy and despotism, and America was this great experiment. So he was a strong, strong believer in the principles behind the Declaration of Independence, the principles behind the Constitution.
He also grew up completely under the shadow of this looming civil war. And just like Henry Clay and other Kentuckians—leading Kentuckians—his family believed that Kentucky would be destroyed by this war, both because of geography as a border state, but also because it was half northern and half southern sympathies. So its civic fabric would be destroyed. So they had the sense that they were going to be the victims of everything that was transpiring in both North and South. And that’s obviously why Henry Clay and other Kentuckians were at the forefront of all the compromises that were attempted to try to resolve the sectional dispute over slavery. And so, Harlan grew up in an atmosphere where he believed that politics was sort of going crazy and law would be the only source of compromise, the only source of solution.
And I think that that’s part of the John Marshall legacy; that’s why was he was named for the chief justice who declared the supremacy of law over politics. And then, all of this leads up to the Dred Scott decision where Harlan, I think, came to believe in his bones, even though he articulated some different things—he tried to push the idea that Dred Scott could resolve things initially but then, for all the rest of his life, cited Dred Scott as a terrible example of the Supreme Court going awry. But it gave him this sense of the stakes in these Supreme Court decisions. So when people say, “Where did he get the courage to dissent? Where did he get the courage of his convictions?” It was because he understood that there was a finality to the Supreme Court decisions that was unique in American life and that, after Dred Scott, he felt like all those compromises that he had fought for were now impossible and the nation was on a path to war.
Hon. Victor Wolski: It’s interesting you should mention Dred Scott because I think probably that the dissent by Benjamin Curtis in Dred Scott is the first great dissent that people know of, that before, dissents were very short things, just saying, “I don’t agree,” and giving very little reason. But the evisceration of the majority opinion by Benjamin Curtis showing how, on originalism grounds, there were actually freed black citizens who participated in body politic at the time that the Constitution was ratified. It was a very important decision—a very important opinion, and may well -- I think it served as an exemplar for Harlan when he had the courage to write his dissents, often by himself.
Peter Canellos: I think that’s true. I think the big difference with Curtis was that Curtis resigned in protest while Harlan stayed for 28 years after his first big dissent in the Civil Rights Cases of 1883 and was sort of this constant dissenting presence. But I agree with you that Curtis’s dissent would have been strongly on his mind. And obviously, his family also were very, very skeptical of Justice Taney and saw him as sort of the democrat usurper of Marshall’s throne there. So, yes. He would have identified strongly with Curtis.
Hon. Victor Wolski: Yeah. Other than that dissent, I guess the Chief Justice Marshall’s dissent in Ogden v. Saunders is the only other one that I can think of from earlier that stands out at all. But anyway, in addition to being from Kentucky and a border state, he was also obviously from a slave-holding state and, in fact, from a slave-holding family. And one of the prominent figures in your book -- your book is in part a biography, not just of John Marshall Harlan, but also of Robert Harlan, who grew up essentially as an elder brother—was treated as an elder brother in the family. Could you explain Robert Harlan and his significance on John Marshall Harlan’s career and possibly his thought?
Peter Canellos: Yeah. Robert Harlan was a very powerful and intriguing character in his own right. He journeyed -- he was born in Virginia, enslaved in Virginia, traveled with his mother over 450 miles, by all these later accounts, because he became involved in politics. We know from a lot of profiles that were written in the newspaper that he came 450 miles to find his father, went to Harlan Station, which was essentially a family town in Kentucky. So I think we can assume that they believed his father was a member of the Harlan family. And he ended up, through mysterious circumstances we don’t completely know, being owned by James Harlan, who was the father of John Harlan, before John’s birth, and while his mother remained enslaved and was sent down south -- but apparently still exchanged some letters with James Harlan and remained on solid terms with James Harlan. And apparently, right from the start, Robert, who was of mixed race, was treated very differently from the other enslaved people in the family. James Harlan tried to educate him, but that was impossible for a person who was black and enslaved at the time.
Hon. Victor Wolski: He tried to get him enrolled in school, right? The school wouldn’t allow him.
Peter Canellos: Get him enrolled in school, yeah. He was educated at home. But James Harlan wanted him to go to school, and he wasn’t able to go to school. And paradoxically, the fact that he wasn’t able to go to school liberated him from one aspect of the Harlan family because there were five brothers that John had of his own, all white brothers, who obviously were not enslaved and who were committed to this sort of rigorous study of the law by their father from the time they were very, very young. Robert was able to sort of develop a skill that was to hold him in very good stead later in life by necessity, and that is finding ways to succeed and opportunities even against the most horrific odds, being born enslaved, being denied any form of education, be denied anything.
So he started off as a horse racing pioneer because many of the original horse racing owners in Kentucky were slave owners and their enslaved men were the jockeys and trainers. So it was a very multiracial scene there. And Robert developed this reputation for being able to size up a horse on site, and he was actually what helped organize barnstorming-style races. Then he spotted the Gold Rush as another opportunity, understanding that the old kind of racial prejudices that held people back would not be in place in San Francisco, where you had people coming from all around the world to try to find gold.
He returned from the Gold Rush a very wealthy man and moved to Cincinnati, which at the time was the terminus of the Underground Railroad—this is before the Fugitive Slave Act—and in the early 1850s, began investing in black-owned businesses, seeing real potential in people coming out of slavery. And these ranged from a grocer, something as simple as a grocer, to something as complicated as a group of black photography pioneers, recognizing again that new technology was something that would be less encumbered by racial barriers. And also, he owned the mortgage or held part of the mortgage on something called the Dumas House, which was the leading hostelry for free black men during that time and where a lot of runaway slaves were held -- were sort of hidden and stayed after the Fugitive Slave Act.
So Robert Harlan then spent the Civil War years in England becoming a rather well-known person because he owned horses in Kentucky by then and brought them to England to stage these transatlantic races and became well known in British racing circles, then returned after the war to assume a position as the leading black politician in Ohio and certainly the leading supporter of the Republican party in Ohio. And because Ohio was the swing state in presidential politics and because the black vote was very crucial to the Republican Party, he was a confederate in some ways of all of the great Ohio politicians, many of them on the national stage. Certainly James Garfield, certainly McKinley, Benjamin Harrison, he was a well-known person to them.
And so, after the war when John Harlan is considered for the Supreme Court under this very odd set of circumstances where Hayes has been given the presidency but sort of committed behind the scenes to appointing a southerner, but he needed a southerner who was good on civil rights who could pass a Senate Judiciary Committee that was run by George Edmunds of Vermont, who was a dedicated civil rights supporter. There was a lot of politics going on in the background, and Robert Harlan was playing a role in advocating for John. We don’t know how much of a role that was. We don’t know -- we do know that he’d be sending letters back reporting to John on his chances of getting the nomination.
But I think we can imagine that in that atmosphere, Robert’s support meant a lot for people who were actually doubting Harlan’s commitment to civil rights given that he came from a slave-owning family. But to have someone who was enslaved in the same house who was then the leading black politician in Ohio vouching for him, I think, was very, very important. So they worked together. They maintained a sense of family loyalty and family feeling. So it’s quite an extraordinary part of the Harlan story.
Hon. Victor Wolski: And the experience of Justice Harlan growing up with Robert Harlan and knowing him for probably most of his -- well, his entire adult life and probably half of the life before that, may well have contributed, would it not, to Harlan’s view on the different races and his belief in racial equality, which I think is a good reason for us know to turn to Plessy and the Civil Rights Cases in particular and talk because those are the first big great dissents from Justice Harlan, the things that he’s most known for today. If you could, talk a little bit about those cases and about how Harlan came to his position.
Peter Canellos: Well, Harlan came to his position, I think, because of all of the factors we’ve discussed and many others. I think that having pushed for those compromises in the years leading up to the Civil War but finding that they failed, having watched the Ku Klux Klan take over Kentucky in a lot of ways after the war, having also recognized -- because he was on this Louisiana commission that had looked into a bitter dispute over the gubernatorial election in Louisiana that almost erupted into another war, he came away with a belief that you couldn't keep troops in the South forever but that the law had to step in when the force of the country could not apply, that the law had to do what the troops were doing for many years after the Civil War. And he was --
Hon. Victor Wolski: The Civil Rights Cases of 1883, those dealt with the congressional reaction to the plight of the freed men and women in which Congress had passed a law forbidding segregation in public accommodations and the theater, in public railroads and then things like that. It purport attacked directly against what private businesses might be doing, right?
Peter Canellos: Absolutely. And this was the Civil Rights Act of 1875. But the setting for it, which was sort of important, is -- here you have -- Harlan is the only Southerner. He’s from Kentucky. He’s also the only person, as you’re mentioning, who had real personal relationships with African Americans. You had these northern justices, many of them came from corporate backgrounds but who had very little exposure to African Americans. And the country and I think the justices in the Supreme Court were getting a little bit tired of what was an ongoing sectional dispute and looking for ways to try to resolve it.
So the Civil Rights Act that was passed in the Grant administration in 1875 became this huge political issue within the country. And cases piled up both in the North and South, where individual innkeepers, individual restauranteurs, train orders and conductors, theater operators refused to serve African Americans, and the law was deployed against them. And all these cases were then combined into one requiem. Unlike Plessy, which was not a very well-known case in its time, the Civil Rights Cases of 1883 was a real national requiem. I would say almost all Americans were aware that this was going on, and it was seen as a big --
Hon. Victor Wolski: Front page news.
Peter Canellos: Front page news everywhere. And Harlan, up until that point, had been a fairly undistinguished, cooperative junior member of the Supreme Court. I think that there was a lot of pressure from the Court majority to try to have a majority ruling in this big case that was famous across the country and attracting so much attention. But Harlan decided to break very powerfully from his colleagues. This was not just registering an official kind of disagreement. He felt that he needed to articulate an entirely different way of interpreting the post-war amendments.
The majority opinion by Justice Bradley leaned heavily on the state action argument, saying that the post-war amendments were only intended to restrict state action and that the types of cases across the board that were brought in were discrimination by individuals. Therefore, they were a state matter to be dealt with. This is simplifying it to some degree, but state action was the key here, and none of these cases had the requisite state action. Harlan, who understood this was only 15 years after the ratification of these amendments, he was in personal contact with the framers of these amendments. He knew what was intended by these amendments, and he knew that the Court was deploying an extremely narrow interpretation that, in his view, defeated the purpose of these amendments.
Hon. Victor Wolski: So in his view, for -- under slavery, slavery and the status of people as slaves was the bar that prevented them from being able to go the theater and being able to go to the restaurants, being able to ride on buses and trains or stagecoaches or what have you, and that once slavery was officially eradicated, that these aspects, this exclusion that continued, was sort of a badge of servitude of slavery that he believed was addressed directly by the Thirteenth Amendment, right?
Peter Canellos: Yes. He rested -- he came up with arguments related to the Thirteenth, Fourteenth Amendments and even the Commerce Clause, which ultimately would become the source of a Civil Rights Bill in the 1960s. But, yes, he said that the Thirteenth Amendment was intended obviously to ban badges of servitude and that denying black people access to what he [inaudible 25:36], as kind of rudiments of normal life and commerce was indeed a badge of servitude. He also said in the Fourteenth Amendment that people were guaranteed a certain liberty interest that was being defeated by these attempts to discriminate based on race.
And he said that in the Commerce Clause, at that time, the government was backing bonds for expending railroad networks around the country and things like that. And with the dynamic changes in the economy, it was worth exploring whether Congress would have the power under the Commerce Clause to impose such civil rights restrictions. So his opinion in the Civil Rights Cases was not as pithy, not as soaring as his dissent in Plessy. It had some soaring element. But I think he felt the tremendous burden that here he has to articulate a different set of interpretations of these post-war amendments and the Commerce Clause for that matter, and it’s something that people have a lot of different opinions on. I’ve heard some people say Harlan’s dissent in the civil rights cases was all over the place. But I’ve also heard people say -- lawyers talk about it as absolutely brilliant in terms of anticipating where the law was going to go in the Thirteenth, Fourteenth Amendments as well as the Commerce Clause.
Hon. Victor Wolski: Now, the question of symbolism, was that the one in which he used the inkwell that had belonged to --
Peter Canellos: Yes, he did.
Hon. Victor Wolski: -- Taney?
Peter Canellos: And here he was -- this was a very difficult time in his life. His eldest daughter had died shortly after giving birth to a baby, and she was very much the light of their whole family. And he wrote a letter to his sons saying every day of his life would be spent vindicating her tremendous spirit and her tremendous legacy—spiritual legacy. And one of the things she had done was teach the children of freed men and women in a volunteer program in Washington, D.C. So that may have also been on his mind. And they’re in a house that they would soon leave because they felt the ghosts of this daughter they had lost was so present in their lives.
So he’s actually holed up in his study, and he’s trying to do this piece of work that is going to define his career and separate him from his colleagues once and for all. And he was struggling with it. And his wife brings in the inkwell that Harlan himself had saved from some Court reorganization, or something like that, that had been Justice Taney’s inkwell that he had used to write the Dred Scott opinion. And she said that she very quietly just put it on his desk. And as soon as he started using that ink, the pen started flowing across the page.
Hon. Victor Wolski: Now, Plessy -- you said in Plessy he used much more soaring language, that the notion of the Constitution being color-blind, not admitting of races. But that one clearly involved state action. That was state of Louisiana telling the railroads that they had to have separate cars for white people and black people, right?
Peter Canellos: Absolutely. And I think that it’s very, very rare in any legal opinion to see somebody reach so deep into the sort of foundational principles of American law as Harlan did there. Clearly, he felt not only that the majority opinion was wrong on the law and violating the post-war amendments, but it was violating the whole core principle of equality under which the United States was founded. And the lines from that case, you quoted one of them, “The Constitution is color-blind and neither knows nor tolerates classes among citizens,” that “the humblest is the peer of the most powerful. There is no caste here.” These are strong, forceful statements that sort of resound through the ages and represent the extent to which Harlan felt that these restrictions on average African American rights were so deeply offensive to the entire American system.
He also articulated in that opinion, as he often did, his prediction for the future. And he predicted -- he said, “What can more surely sow the seeds of race hate than an enactment based like this one upon the idea that one group of citizens is so degraded that they cannot travel in the railroad car of another.” He predicted that, far from resolving anything, Plessy v. Ferguson was going to be the source of racial discord for the rest of the time and consigning both white and black Americans to years of pain. It’s an extraordinary document, his dissent in Plessy. And it is the thing that has most resonated in time.
When he died in 1911, there was a memorial service at Metropolitan A.M.E., which is the largest black church. It’s still right here in Washington. And there were a thousand people, all African Americans there, and his dissents were read aloud. And if you put yourself in the mindset of a young person listening to those words, it does several things. It gives you some hope. It makes you believe that there are white people out there who can see things through the eyes of African Americans, but also that perhaps these cases could be changed. And you know, Thurgood Marshall was not -- he was born a couple years later, but he also adopted Harlan as a role model and followed the Plessy dissent. Constance Baker Motley says it was his Bible, and they included it in all of their -- the NAACP defense fund included it in all of their briefs in the cases leading up to Brown, including Brown. So Harlan played a significant role in sort of germinating the legal strategy behind the 20th century civil rights movement.
Hon. Victor Wolski: Now, before we call Josh in here, one other matter I wanted you to touch on -- a case that I found quite astounding and horrifying in some ways but gratifying in others, I suppose, that -- you wrote about a very obscure case involving Sheriff Shipp in Chattanooga, where there was an incident where a poor fellow had been accused -- a poor black man had been accused of a rape that he didn't commit and was railroaded through a very improper procedure. And his lawyers come to D.C. because the circuit -- and come to Harlan’s house because Harlan’s the circuit judge overseeing Kentucky, and delivers an application for writ of habeas corpus to try to get the Supreme Court to take the case. And what ensued from that was almost mind-boggling. Can you explain that case?
Peter Canellos: Yeah. What happens is, first of all, the context for this is up to that point, the Supreme Court had been very, very reluctant to clamp down on improper state procedures that were harming a lot of defendants throughout the South, throughout other states. It just was very hands-off in its approach there. So here, Harlan orders a review of the documentation hearing a couple of days later in this case. And it was seen by official Chattanooga as such an affront, such a desperate affront, that immediately, Harlan and the Supreme Court become the issue more than the rape case at hand.
And the sheriff who has been sort of officially deputized now -- hold a federal prisoner, he manages to leave the jail completely unguarded except for a 73-year-old night watchman—this in a case where mobs have already been gathering repeatedly in front of this jail—and allows, essentially, a mob to take the prisoner and lynch him on the most prominent wood structure in Cincinnati before hundreds of people. And Harlan then rallies the Supreme Court to be willing to hold the local officials accountable and some of the perpetrators for the crime. So Sheriff Shipp and a group of other defendants have to come to Washington to face contempt of court charges.
Hon. Victor Wolski: The contempt of court was being tried in the Supreme Court—by the Supreme Court.
Peter Canellos: This is the first and only time. And this was the problem, obviously, with the Supreme Court – is that they had no enforcement mechanism. There wasn’t a giant FBI. There wasn’t a giant federal court system at the time. So they had to sit as a jury. And there was an initial decision in which Holmes wrote the opinion that the jury requirement was satisfied by the nine justices of the Supreme Court, which I think some people would want to take close look at that one. But afterwards, it was a fairly easy call to convict Sheriff Shipp and another group of men who were co-conspirators for this horrific lynching.
What this did is -- it’s a deceptively important case. It’s kind of been forgotten in all the casebooks because it doesn’t have a lot of legal precedent because it was a weird situation where the Court was sitting as a trial court—the Supreme Court was sitting as a trial court—but it gained a lot of significance in Chattanooga and in Tennessee and around the country in recent years. Because for one thing, it established a record of all that went into a lynching. And while we know there were thousands of lynchings in the United States, this is the best-documented one. At that --
Hon. Victor Wolski: It was Ed Johnson?
Peter Canellos: Ed Johnson, yeah.
Hon. Victor Wolski: Yes.
Peter Canellos: Ed Johnson was the victim. And they recently dedicated, in September—I was there—a memorial right at the bridge where he was lynched—a memorial to Ed Johnson with, obviously, a significant amount of tribute to Harlan as well. And a lot of senior African American jurists were there saying this was the first time that black people really saw the Supreme Court acting on their behalf and obviously saw Harlan as the key figure in this. And it attests again to his willingness to call out injustice in very difficult situations.
Hon. Victor Wolski: Now, we talked about the wide admiration that people have for Justice Harlan and some of the dissents he’s had. Not all of the dissents have been unanimously agreed with, however. I’d like to turn to Josh Blackman now. Josh, if you want to talk a little bit about one of the more controversial dissents in the Lochner case.
Prof. Josh Blackman: Sure. And again, thank you Judge Wolski and Peter for this enlightening conversation. Harlan’s most famous thing is Plessy. People know [inaudible 36:45] the law. But among lawyers, his probably most significant dissent came in a case from 1905 called Lochner v. New York. We all know the facts of the case. New York put restrictions on bakeshops. One of the restrictions is limiting how many hours the bakers can work. The Supreme Court upheld most of the restrictions, for example, those involving sanitation. You had to have a clean floor, you couldn’t have animals. Those were all fine. But the hour law was restricted. The Court was 5-4. Justice Peckham issued an opinion, and he found that the restriction on hours was a violation of liberty of contract.
There were four dissenters. One dissent was written by Justice Harlan, another dissent by Justice Holmes. Now, people always know the Holmes dissent because he had these references to Herbert Spencer's Social Statics and these charges of laissez-faire governance. But Holmes was by himself. No one joined him, right? Holmes basically said, “There is no liberty of contract. The Fourteenth Amendment says nothing at all about this. We defer if it can be said this policy’s reasonable.” The dissent that garnered more votes was Harlan. He was joined by two others. Harlan seemed to expect that the Fourteenth Amendment had what we would now call a substantive component. The phrase “substantive due process” didn't exist in the 1800s. That was a modern phrase.
But Harlan seemed to exist that, yes, there’s some laws that might violate the liberty of contract. This ain’t it. Harlan sort of applied, we might call, a presumption of constitutionality that was rebutted. He says, “Well, when we’re dealing with these unenumerated rights, we should presume that the legislature’s acting rationally. We’ll presume it. If there’s evidence, bring it forward to show us this law’s irrational, but we presume it.” The Harlan dissent provided the basis for due diligence jurisprudence. We talk of it over Lochner -- that never actually happened. But if you read West Coast Hotel v. Parrish and other related cases, the Court was sounding in Harlan.
Now, you need to read Lochner with another case decided in 1905 dated a few months later, which was Jacobson. This is a case that’s been widely misunderstood and misread by judges of all stripes. With an entire hour -- I won’t. But Harlan wrote both the Lochner dissent and the Jacobson majority. And the Jacobson majority upheld a Massachusetts law that opposed a five dollar penalty on those who did not get a smallpox vaccine. And the sort of deference we see in the Lochner case, in the Lochner dissent, I think it’s that same sort of deference we see in the Jacobson case, but at least it recognized the risk to liberty -- if some right. And then also a few rational – it can be reviewed by courts for rationality. So these two opinions, a Lochner dissent and the Jacobson majority decided within months of each other in 1905, are very significant windows into Justice Harlan’s jurisprudence.
Hon. Victor Wolski: Thank you. Peter, anything you want to add about Lochner? I know that you viewed Lochner through the prism of the conflict between the rapidly industrializing America and the people who were concerned about health and safety and sanitary conditions and things of that nature. And I guess in Lochner, not wanting to question the motives of the legislatures, Justice Harlan was deferential and believed that that was a legitimate health and safety issue involved but also recognized the liberty of contract, right?
Peter Canellos: Well, yes, in both cases. And he articulated a position, as Josh Blackman suggested -- that it’s actually very similar to the way that the current Court views the rational basis test. I think that the other thing that’s significant about his views in Lochner is that they showed another side to Harlan. You know, we think of Harlan in terms of Plessy where he’s asserting a right and overturning a legislative action. He actually was quite deferential to legislatures. And this is another facet of his upbringing. He believed that in a democracy—in a democratic government—Congress and the legislatures needed to have the tools to sort of wrestle with big national problems. And that, I think, is also a legacy of that period growing up under the threat of the Civil War coming. So he actually spent a lot of his career defending the notion of judicial restraint and imploring colleagues not to have their own political judgment replace that of the political branches. And that’s very visible in his Lochner dissent.
Hon. Victor Wolski: In the judicial philosophy department there, judicial restraint -- Josh, would you say that Justice Harlan might have been a progenitor of the thought of, say, Felix Frankfurter and that type of approach to judging?
Prof. Josh Blackman: Well, I think the [inaudible 42:05] restraint was actually [inaudible 42:09] Fair, who was one of the leading scholars at the time. And Fair and Holmes line up pretty carefully. The lesson was palpably unconstitutional. The Court should leave it alone. I don’t think Harlan went quite that far. I think he had a broader willingness to assess if laws were unconstitutional. Look no further than Plessy or the Civil Rights Cases. It took acts of congressmen, Constitution -- it took Louisiana segregation laws, invalid. So I think Holmes upheld both. I think Holmes would have said, “Yep. Plessy, go for it,” and, “Yep, Civil Rights” -- I think Holmes would have been okay in both of those. So Harlan has really has intermediate core presumption of constitutionality.
I do want to mention one other thing that, in my own experiences, you may not know about Harlan -- he was a professor. During his tenure in Court, he taught at the George Washington Law School and the Columbia Law School in evenings and weekends to, basically, students to full-time careers. And he would teach con law. Can you imagine having a sitting Supreme Court justice teaching you about the Constitution? And he would talk about his cases before the [inaudible 43:16] and decide to say things like, “Well, I was dissatisfied with [inaudible 43:22].”
Hon. Victor Wolski: So obviously, he was wrong, right? Because the Supreme Court spoke and he was of the --
Prof. Josh Blackman: Of course. And one of his students in 1987 transcribed his notes verbatim. And I actually went to the Library of Congress with a colleague. We actually digitized them. So if you want to—I’ll put the link in the chat—read all of Harlan’s lecture notes -- they were truly remarkable. He would teach the Constitution, not by cases, but by clause—sort of the preamble and work it through each clause. I actually took some pedagogical tips from John Harlan. So I feel forever in debt for him.
Hon. Victor Wolski: So he might be one of the original textualists?
Prof. Josh Blackman: I think he was a proto-originalist.
Peter Canellos: You should also read the law review article that Josh and Brian Frye wrote on those lectures that Harlan gave. It’s very, very illuminating in terms of his judicial philosophy but also his personality, just like -- as Josh was suggesting, with him always joking. He said, “Well, this was my view, but I guess I was wrong.”
Hon. Victor Wolski: Some of his other dissents, I think -- and unfortunately, some of his joining a majority opinions ended up being somewhat controversial. Particularly the Chinese exclusion cases I think have been viewed as problematic by people of our generation, I suppose, obviously not by those at the time.
Peter Canellos: I mean, people frequently ask about that when talking about Harlan. I think it’s worth noting the Chae Chan Ping case, which is the main Chinese exclusion case, is still good law today. I mean, the only legal issue in that case was whether Congress can advocate a treaty once it’s been ratified, and that is still good law today.
Hon. Victor Wolski: So he rested his decisions on treaty power and on the ability of Congress to limit immigration, right? Those were the --.
Peter Canellos: Well, it was the ability of Congress to limit immigration. But the entire Chinese worker system was the product of a treaty that had the Chinese workers in this country remaining subject of the Chinese emperor. I think that people look at this case, and they’ll look at some language in other Harlan opinions and things and sort of say, “Well, did he have a special bias against the Chinese?” I think that, first of all, if you look at the totality of his opinions, he was a person who stood up for the rights of Filipinos -- native Filipinos and Hawaiians in the Insular Cases very strongly.
Hon. Victor Wolski: Those are the cases which involve the territories that we acquired during the Spanish-American War and whether or not the constitutional rights necessarily flowed to the people who lived there once they became part of the United States.
Peter Canellos: Yeah. And he was the leader of the legal constitution; you must follow the flag. And in fact, it’s very powerful because you can tell that he sees the same seeds of discord in those cases that led to the Civil War. And he kept saying, “We cannot have a system in which half of the people living under the American flag, or a large portion of them living under the American flag, have full constitutional rights, where the Constitution is the supreme authority. And then you have this large number, millions of people, living under the power of the United States in which Congress is the supreme authority.” He saw it as another revival of the old answer of inequality.
Many of the majority opinions had very racially problematic views about the capacities of Hawaiians and Filipinos to live in a free society and things like that. And Harlan rejected those notions and said the Constitution should follow the flag, and they should have full constitutional rights. He also defended the right of a Native American to obtain birthright citizenship if they made a decision to leave their tribal government and assert for birthright citizenship. So it’s improbable to say that he had this strong equal rights ideology for all these other groups but not the Chinese. But the difference in the Chinese case was that they were not American citizens. And he noted that in various points. They were subjects of the Chinese emperor, and so the legal --
Hon. Victor Wolski: And that even included the fellow who was born in America to Chinese parents and lived here for 20-some years before he emigrated back, for a time, to China, right? That was the --
Peter Canellos: Well, Harlan joined a dissent in that case by four. This was a case in which the Court granted birthright citizenship to a Chinese person. He joined with Fuller, citing a doctrine dating back to common-law days that you had to make an affirmative choice to become a US citizen. If the parents had wanted their son to be a US citizen, if that was part of the plan, that was Harlan’s view on birthright citizenship as well as Fuller’s view, not that it would just occur sort of automatically. And in fact, in one of the lectures that’s in Josh’s article, Harlan posits the idea of a British couple coming to Hot Springs and then having a child here—because at that time, obviously, you couldn't go back to England at that point—but with no intention of renouncing their loyalty to the Crown. Does that child become an American just because their parents were on a trip to the United States when it was born? He would say no under those [inaudible 48:49]. And that’s a little more of outlying opinion, and he did join Fuller in that.
Nick Marr: Do you want to go to Q&A? We have about 10 minutes left. Maybe we should take some questions.
Hon. Victor Wolski: Yes. Can you see the questions, Josh and Peter?
Prof. Josh Blackman: I can.
Hon. Victor Wolski: Why don’t we handle the first question we have about Harlan’s deferential approach he took to due process in Lochner, whether that’s at odds with his approach to the Equal Protection Clause? Josh, do you have a --
Prof. Josh Blackman: Sure. And I think that’s from Chris, who seems to be here in Houston with me at St. Thomas. I think Harlan’s view of the Due Process Clause was largely based on the fact that it was unenumerated, right? [Inaudible 49:23] One of his final exams -- at his final exam, was “What does liberty mean in the Fourteenth Amendment? I don’t know. Ask Justice Kennedy.” Right? And I think Harlan was very hesitant when he seemed like this unenumerated constitutional liberty to sort of be engaged and to sort of reach beyond the text of the Constitution. But equal protection is clear as day. Right? I mean, he seemed to think that -- he knew what equal protection meant. He lived through the Civil War. He understood what reconstruction was. He knew what it meant, so he wasn’t as hesitant.
The second part says, “Ignorance of Harlan’s arguments to treat the color-blind constitution disfavor -- ah ” So the most famous line of Harlan’s dissent is, “We want a constitution that’s color-blind.” And today, that’s not quite woke enough. Right? Many people who are progressive want a color-conscious approach to a college admissions, for example -- God, color-conscious approach to college admissions. Right? You have Justice Thomas dissenting, saying, “We need to be race-blind.” And Justice Thomas compares those who favor [inaudible 50:35] segregationists [inaudible 50:37]. So I got to tell you, Harlan has been living a rough sledding recently because people don’t like race neutrality. It doesn’t actually work. They want race consciousness. So I think if we go back to Harlan, the OG, we may get some guidance and some clarity.
Hon. Victor Wolski: Peter, what do you --
Peter Canellos: Yeah. I’ll add one thing that -- Thurgood Marshall, while he was in his last years on the Court, was asked about this, how he, as a Harlan admirer, could support affirmative action. And he said because the country didn’t follow Harlan in Plessy in 1896 means that now, in 1987, we have to undo the ills of the intervening period. So he sort of squared it by talking about the remedial nature of affirmative action and saying that, in his view, Harlan would not be offended by affirmative actions.
Hon. Victor Wolski: Now, Justice Harlan served on the Supreme Court with some towering figures in Court history, including in his early part of his career with Stephen J. Field, whose memorial actually towers over John Marshall Harlan’s simple flat gravestone in the Rock Creek Cemetery where they both happen to buried a few miles from here. Another one was the fellow who wrote short, cranky, but pithy things that got a lot of attention—Oliver Wendell Holmes. Now, between Holmes and Harlan, Peter, who do you think was the greater justice?
Peter Canellos: I think that Harlan was the greater justice. I think that you can refer to a Louise Weinberg article on this question of looking at Holmes. It’s not specifically positing Holmes versus Harlan. It’s more in a critical analysis of Holmes, but it does offer the opinion that Harlan was a greater justice and that Holmes has kind of impressed the legal world with his doctrinal brilliance and his glittering aphorisms that he would cite, whereas Harlan had this sort of firmer sense of justice.
You were mentioning earlier in some of the Chinese cases, and he joined that Fuller opinion as well that was seen as problematic or racially problematic. But if those are among the very, very few perceived blemishes on his record, compare it to the cases where today we would say Holmes was completely wrong. Holmes was writing cases that had people who were protesting the war peacefully outside of an induction center being put in jail. He was -- in the eugenics case, he was supporting sterilization. There’s a lot of very bad Holmes opinions. And some of the opinions in which Harlan’s dissents loom large, like the Berea College case, which banned interracial education even in private colleges in separate ways, Holmes was on the wrong side. So I do believe that Harlan surpasses Holmes.
Hon. Victor Wolski: Now, your book focuses primarily on the dissents. I’d be remiss if I didn't mention a few of the majority opinions that Justice Harlan wrote that were particularly significant in the areas of property rights. For instance, he wrote the opinion in Chicago, Burlington and Quincy Railroad Company v. Chicago, which was the first case to incorporate one of the provisions of the Bill of Rights—the Takings Clause—into the Fourteenth Amendment. He also wrote Smith v. Ames, which adopted a standard of a fair return on the present value of assets of a railroad as constitutionally required under the Takings Clause. He wrote Adair v. United States, which struck down a federal statute that had banned the so-called yellow-dog contracts—the non-union contracts—and he struck that down violating liberty of contract.
So with that record on the side of economic rights, one wonders where would he have fallen, perhaps, if he was still on the Court at the time of Wickard v. Filburn? Would he have agreed with -- would his deference to the legislature allowed it to happen? Or would he, instead, have leaned the other way? Peter or Josh?
Prof. Josh Blackman: I’ll take it. That’s actually an excellent question. In one of Harlan’s lectures for students, he told them, “When you guys become lawyers, pay very close attention to the Commerce [inaudible 54:59].” He said that’ll be the most important part of the Constitution for the next century. He said this very clearly. And if you read his dissent in the lottery -- or his opinion in the lottery cases, it more or less presages how the New Deal core read federal power of the Commerce or Necessary and Proper clause. He has an entire lecture on what happens when we have the steam rails that didn't exist at the time of the framing. He understood very clearly where things were going. And I think that the New Deal justices didn't always give him credit.
By the way, Holmes is so overrated. Oh, my goodness. He doesn’t deserve nearly the credit he gets. He was a hero, patriot, shot in the battlefield. His opinions were poorly reasoned consistently. He had good turn of phrase, but I will take Harlan over Holmes any day.
Peter Canellos: Well, I think he also alluded --.
Hon. Victor Wolski: Holmes also yelled, “Get down, you fool,” at Abraham Lincoln when snipers were shooting during the Civil War.
Peter Canellos: Well, Holmes -- interestingly, Holmes never had a good word to say about anybody. When people talk about the first-class temperament comment about Franklin Roosevelt, they forget the rest of it -- but second-class intellect. And Holmes attacked Lincoln, and Holmes also had some funny comments about Harlan, calling him the last of the last of the tobacco=spitting judges. But you alluded to another aspect of Harlan’s career that we don’t have much time to talk about now and that is his support for the incorporation doc. He was considered way, way an outlier in his time, suggesting that the Bill of Rights was incorporated as applied to states in the post-war amendments. And we moved closer to that position significantly in our time. And so, what was considered the crazy outlying position is pretty mainstream today in terms of [inaudible 56:41].
Hon. Victor Wolski: Well, what do you think is the greatest legacy of Harlan’s constitutional thought today? Where is it going to manifest itself most in the years to come?
Peter Canellos: Well, I think that his greatest contribution is his reference to the foundational principles in American law and his insistence that people follow the notion of equality and equal protection. I mean, he is the father of equal protection. He’s the believer in the Equal Protection Clause. And many see that, in a very problematic time in Supreme Court history, he was the person who was supporting the Constitution and had a much firmer sense of what a constitutional system would yield and should yield in that era than his colleagues did.
Hon. Victor Wolski: And do you have any sense of how many sole dissents he wrote compared to other justices?
Peter Canellos: It’s hard to know because he wrote so many, I guess. I don’t know if there’s been an accounting of how many of them were not held. Interestingly, some people say -- some people ask questions and say, “Well, why didn't he stick with the majority and try to work within the system to get a better result?” And the reality is that in many of these solo dissents, his position was so much at odds with his colleagues. It was considered just a fundamentally different position. And then the irony, of course, is that today, we view Harlan’s position as the mainstream and the Court majority’s as the outlier.
Prof. Josh Blackman: I think we’re at time.
Peter Canellos: We’re at time. But I want to -- look, I didn't even have a chance to say what an honor it is to be here with all of you and to also be with Judge Wolski, who’s such a model of a public servant and such an impressive person and a great friend, and also Josh Blackman, who has done a lot to preserve Harlan’s memory and to extend his legacy into the current day and who’s --
Prof. Josh Blackman: I think we're at time. Thank you.
Hon. Victor Wolski: And I want to thank Peter and Josh --
Peter Canellos: [Inaudible 58:39] law review article also played a role in the book, too.
Prof. Josh Blackman: Thank you.
Hon. Victor Wolski: -- and thank you both of you guys for making this a very good program. It’s a really great book. I urge everyone to check it out—The Great Dissenter. You won’t regret it.
Peter Canellos: Thank you.
Prof. Josh Blackman: Take care.
Nick Marr: The link to the book can be found on the webpage for this event, fedsoc.org. You can go find the book link and purchase it there. I just want to extend thanks on behalf of The Federalist Society to you, Peter, Judge Wolski, Josh, everyone, for participating, the benefit of your valuable time and expertise on this really interesting topic this afternoon. So thank you very much. Thank you also to our audience for tuning in for your great questions. Sorry to any we didn't get to, but I think we covered them. Be sure to check your email and our website for announcements about upcoming events like this one. Until next time, we are adjourned.
Peter Canellos: Thank you, everyone.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.