Tuesday, September 17, 2019

The Racial Jurisprudence of Justice John Marshall Harlan I

By Julie Bentzen
Julie Bentzen is a 2019 graduate of Albany Law School. Julie graduated cum laude from St. Michael's College with, a major in history and minors in Spanish and Global Studies. Prior to law school, Julie worked at the New York State Department of Labor and at the New York State Department of Public Service. 
During law school, Julie interned at Lombardi Aguilar Group, in Panama City, Panama, and at the Center for Internet Security, Inc., in East Greenbush, NY. She also served as the Managing Editor for Submissions on the Albany Government Law Review, 2018-2019 editions.
Julie is currently a law clerk at Jackson Lewis, P.C., in Albany, NY, in their Government Relations department.

Justice John Marshall Harlan I is known as the Great Dissenter for his famous dissents regarding the civil rights of African Americans in the post-Civil War era.  Appointed by President Hayes, the first Harlan served from 1877-1911.  Prior to the New Deal era, justices did not generally issue dissenting opinions, a tradition that began with the precedent set by Chief Justice Marshall.   Obviously, as evidenced by his famous moniker, Justice Harlan clearly did not subscribe to that precedent.  Further, the justice was known to be quite fiery on the bench and staunch in his opinions.  As quoted by the New York Tribune:
Several times he [Harlan] turned in his chair so as to face the Chief Justice and Associate Justices Field and Gray, at whom he fairly glared as he shot forth sentences laden with feeling such as probably never before found expression from an Associate Justice of the Supreme Court in a dissenting opinion. Old lawyers who had practiced at that tribunal for more than a quarter of a century sat aghast as sentence followed sentence.
Most often recognized for his lone dissent in Plessy v. Ferguson, Harlan’s criticism of the doctrine of “separate but equal” in that case was at last supported in 1954 when Brown v. Board of Education overruled Plessy and the constitutionality of “separate but equal” accommodations for the races.  Yet, Justice Harlan was seemingly full of paradoxes regarding his views on race, not only in his writings, but in his life.  Born in anti-bellum Kentucky, he and his family were slaveowners.  However, during the Civil War, Harlan served for the Union.  He initially did not support the emancipation of slaves, but as several of his dissents attest, Harlan later advocated for the equal rights of African Americans. 
This paper will discuss Justice Harlan’s racial jurisprudence during his tenure on the Supreme Court, focusing mainly on arguably his most famous dissent, Plessy v. Ferguson, briefly touch on the Civil Rights Cases, and will include analysis of his racial beliefs as evidenced by his lectures and decisions.  The paper will then discuss several of Harlan’s cases which did not advocate for civil rights, and finally Harlan’s belief in incorporation of the Bill of Rights through the Fourteenth Amendment.  As a whole, the paper will seek to explore the contradictions innate in this complex judicial figure and his jurisprudence.
To read the paper, open HERE.