Journal of Supreme Court History

John Marshall Harlan, who sat on the Supreme Court from 1877 to 1911, is best known for his dissenting opinion in Plessy v. Ferguson (1896). There, Harlan stood alone among the justices as a defender of equal rights and opponent of the separate-but-equal doctrine. “Our Constitution is color blind,” Harlan famously wrote. “The law regards man as man and takes no account of his surroundings or his color when his civil rights as guaranteed by the supreme law of the land are involved.”¹ Peter S. Canellos has used this, along with other lonely Harlan dissents, notably in the Civil Rights Cases and Lochner v. New York, as the anchor for a new biography of the first John Marshall Harlan.²

The Great Dissenter is one of the most captivating judicial biographies I have read. This is partially due to Canellos’ skill as a writer. He displays the journalist’s ability to identify and capture a good story, and the talent to turn a phrase. But the thing that makes this book exceptional is how Canellos turns the subject of John Marshall Harlan into a poignant story of time and place in American history.

One way he accomplishes this is by weaving the story of Robert Harlan into the narrative. Robert, a man of mixed race and born into slavery, is commonly presumed to have been John’s half-brother. Canellos deflects debate about the accuracy of that presumption by simply observing that, “A youthful sexual encounter with an enslaved woman could have made [John’s father, James Harlan] Robert’s father, but no one except Robert’s mother would have known the truth.”³ Historians agree that James Harlan took an intensely personal interest in the young slave. He raised Robert, educated him, and then emancipated him. For Canellos, the truth of Robert’s parentage is not as important as was the fact that Robert and John Marshall Harlan were connected early in their lives as part of the same household. Like earlier biographies by Tinsley E. Yarbrough and Linda Przybyszewski, Canellos factors this aspect of John’s upbringing into the explanation of his evolution from former slave holder and opponent of abolition to advocate for racial equality.⁴ [End Page 65]

However, Canellos goes a significant step further. Seesawing between the experiences of John and Robert as his story progresses, he adroitly weaves the life of Robert Harlan into the narrative. Including Robert in this way paints a vivid picture of the forces at play in the free Black community before the Civil War and the elite Black community after the war. It also gives the book additional human interest, for Robert led an unusual and eventful life. Among other experiences he risked travel through the Deep South in search of his mother, made a fortune in the Gold Rush, and became a successful businessman who raised, trained, and raced thoroughbred horses.

While at times this book may seem like the makings of a co-biography, Canellos does not forget that his subject is John Marshall Harlan. In the process of tracing John’s life, he brings to light other factors that influenced the future Supreme Court justice’s worldview. One was family. He was born into a prominent Kentucky family in 1833. Family lore has it that his father hoped to secure his son’s destiny by naming him after “the great chief justice,” John Marshall. Having graduated from Centre College and the law school of Transylvania University, it appears that he was destined to be a lawyer. John followed his father’s faith in the Presbyterian Church and in the politics of the Whig Party, specifically, the ideals of Senator Henry Clay. It was a philosophy...