The Great Dissenter is an exceptionally well-written book on the life of the famous jurist, John Marshall Harlan. I received this as a pre-publication eBook. Although usually overshadowed in Supreme Court history by his namesake, Chief Justice John Marshall, and by other justices such as Oliver Wendell Holmes and others, Harlan provided opinions that should be studied in law schools. Unfortunately, his greatest opinions were dissent and in meaningful cases to society. Or I should say in cases that hampered societal development because his opinions were not in the majority.
The case of greatest historical significance was the infamous Plessy v. Ferguson covered in chapter 15. Here the author covers the Plessy case from its inception to the famous dissent opinion. For those of us who know of the case but did not have the historical facts, the writer gives an account that allows the reader to learn of the parties and the issues involved in the case. Plessy was designed as a test case and interestingly was not one supported by most African-American activists at the time. This was because the litigant in question was not so much fighting for a general right to be allowed a seat on a segregated train, but more specifically for a light-skinned black of creole descent. Because of this most black-owned newspapers said little about the case while it made its way to the S.Court.
Once the decision was issued, few papers gave it much attention, although, black-owned media did understand its significance in terms of Harlan’s opinion in dissent. An example from his opinion given by the author, “[S]uch legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by everyone within the United States.” Furthermore, in tearing down the argument that the segregation law was supposedly equal treatment of blacks and whites, Harlan wrote, “The thing to accomplish was under the guise of giving equal accommodation for whites and Blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches…no one would be so wanting in candor as to assert the contrary.” Harlan went on to essentially predict the racial strife the majority decision would cause that was to grip this country for decades and one could easily argue into present time.
The Plessy decision was significant because it codified segregation as a legitimate government institution and introduced into case law the “separate but equal” racist canard. Also, of interest in this discussion was that the local judge who upheld the segregation law in Louisiana was a northern, carpet-bagger and not some avowed confederate. I for one had not known of that fact.
My only problem with the writer is that he continually referred to his subject using the familiar term “John”. I don’t think that was appropriate. He also spent a bit too much time following his step- or (more likely) half-brother who was African-American. It’s not that his life was not of importance in understanding Harlan’s views on race, but the author didn’t always connect what was happening in one man’s life as an adult with what was occurring for the other. In that way, I found his divergence into brother Harlan’s life somewhat gratuitous. Overall, though, this is a worthwhile book.
My review can be seen on Amazon, https://www.amazon.com/Great-Dissenter-Marshall-Americas-Judicial/dp/1501188208/ref=sr_1_2_sspa?dchild=1&keywords=great+dissenter&qid=1625073073&sr=8-2-spons&psc=1&spLa=ZW5jcnlwdGVkUXVhbGlmaWVyPUEyR043REdQUEFCTTNJJmVuY3J5cHRlZElkPUEwNDMzODg1MUlVQUFYR0tMWVpYSyZlbmNyeXB0ZWRBZElkPUEwNzc4MjYyUDJLSkFBUUdKSDBWJndpZGdldE5hbWU9c3BfYXRmJmFjdGlvbj1jbGlja1JlZGlyZWN0JmRvTm90TG9nQ2xpY2s9dHJ1ZQ==#customerReviews

This is a great new biography of Supreme Court Justice John Marshall Harlan. Harlan is most remembered today for drafting the dissent in the Plessy v Ferguson “separate by equal” case — being one of the lone voices of his era willing to argue that racial segregation was inconsistent with the original meaning of the Constitution and Reconstruction Amendments. But there was much more to his life and jurisprudence than just that one opinion, and this book does a great job telling that story and putting everything in context. We highly recommended this book to lovers of US history and of the law.

I honestly didn’t know much about John Marshall Harlan but I’m grateful I got to read this book and learn more about him. I can’t wait to buy this when it is published so I can spend more time with this book as a physical copy. Excellent research and writing.

Author and journalist Peter Canellos has chosen an excellent moment for a biography of the Supreme Court jurist John Marshall Harlan, whose intellectual evolution and eventual dedication to civil rights is not only inspirational, but more relevant than ever.

The author’s aim is to describe how Harlan went from being a slave-owner in Kentucky to one of the greatest advocates of minority rights of all time during his service on the U.S. Supreme Court. As the author writes:

“Among powerful white officials, one person’s voice rang out. He reminded the nation that the post-Civil War amendments to the Constitution promised equal protection under the law. He advocated eloquently for Black rights, along with the health and safety of immigrant industrial workers and the rights of people in places such as Puerto Rico, Hawaii, and the Philippines, which were ruled by the United States in a time of imperialism.”

One relatively unknown aspect of Harlan’s background is the fact that a Black man and former slave, Robert Harlan, was brought up in Harlan’s house and treated like a brother. There is speculation that Robert was in fact a half-brother of John Marshall Harlan. Robert’s story is also covered by this book, with the author weaving back and forth between the lives of the two men.

Harlan served on the Supreme Court for thirty-four years, from 1877 to 1911. He was appointed to the court by President Rutherford B. Hayes “as a kind of human olive branch to the South,” since the rest of the court was made up of privileged Northerners. Harlan was the only one of the court to have graduated from law school. He was also, as mentioned above, a former slave owner, notwithstanding the unusual status afforded to Robert Harlan.

Thus it is most interesting to see how Harlan come to occupy his position as a liberal bastion among his peers. Notable were his dissents on three infamous civil liberties cases that came before the Court: Plessy v. Ferguson (1896), Lochner v. New York (1905), and The Civil Rights Cases (1883).

The author writes: “In case after case, he laid out a framework for what would become the twentieth-century civil rights movement.”

Canellos evinces a fine understanding of the legal issues at stake, which he explains clearly for lay readers. But Harlan’s own words, quoted liberally within the book, are also clear as well as inspirational:

For example, in “The Civil Rights Cases of 1883,” Harlan wrote:

“I cannot resist the conclusion that the substance and spirit of the recent amendments to the Constitution [the 13th, 14th, and 15th] have been sacrificed by a subtle and ingenious verbal criticism. It is not the words of the law but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law are the soul.”

Thus, he argued that the majority of the Court was ignoring the plain meaning and intent of the newest amendments, and that their position revealed racial double standards.

[Here one can clearly see the echoes of his criticism when contemplating the opinion by Chief Justice Roberts when striking down an important section of the Voting Rights Act in Shelby County v. Holder (2013).]

The country however, now, after Shelby, and in Harlan’s time, as the author writes, looked to the Court’s majority who gave them security in and protection for their right to discriminate.

Frederick Douglass later wrote of Harlan:

“…I was wont to console myself with what seemed to many a transcendental idea, that one man with God is a majority; that if such a man does not represent what is, he does represent what ought to be, and what ultimately will be.”

This is an excellent description of the importance of John Marshall Harlan, his moral integrity, and of his continuing relevance today.

This double biography - of John and Robert Harlan - will introduce to most readers two unique characters whose stories are fascinating, and representative of the state of the union at the time. It is a book well worth reading!