Supreme Court Justice John Marshall Harlan I, Author of Famous Dissent on Separate But Equal, Dies
Supreme Court Justice John Marshall Harlan I, author of the famous dissent against separate but equal racial segregation in the notorious Plessy v. Ferguson case, died on this day.
Because of his dissent in the decision in Plessy v. Ferguson (May 18, 1896), which infamously upheld segregated railways and other dissents, Harlan has been labeled “The First Great Dissenter” by legal historian Melvin I Urofsky. He was the first justice in the court’s history to dissent frequently, and wrote a total of 316 dissents in his career.
His statement in his dissent that “Our Constitution is color-blind” is, according to legal scholar Urofsky, “one of the most quoted dissents in our constitutional history.” The dissent was longer than the majority opinion, which was not his normal style, pounded the desk while reading it, and wagged his finger at both the Chief Justice and another justice. Ironically, Harlan’s statement that “Our Constitution is color-blind” was embraced by conservatives in the late 1970s and beyond to attack race-based affirmative action plans.
Somewhat ironically, Harlan had been a slaveholder before the Civil War, which meant that he was the only member of the court in 1896 to have first-hand experience with slavery. After the war, he abandoned the Democratic Party and became a Republican.
Harlan’s Plessy dissent had little impact in the decades immediately following the decision, but by the time of the Civil Rights Era in the 1960s it became the most quoted of all court decisions. He and his Plessy dissent were vindicated in the landmark Supreme Court decision of Brown v. Board of Education on May 17, 1954, which overturned the separate but equal doctrine.
Harlan was the grandfather of his namesake who also served on the Supreme Court, John Marshall Harlan II, who joined the court on March 17, 1955.
Read: “The First Great Dissenter,” Chapter 5 in Melvin I. Urofsky, Dissent and the Supreme Court (2015)
Read the great book on the history of the Plessy case: Steve Luxenberg, Separate: The Story of Plessy v. Ferguson, and America’s Journey from Slavery to Segregation (2019)
And read: Tinsley Yarbrough, Judicial Enigma: The First John Marshall Harlan (1995)