Harlan’s fame rests as the sole dissenter in case after case that took away the rights that Black people were granted in the post-Civil War amendments to the Constitution. Those dissents not only inspired African American leaders in his time but provided an early roadmap for the victories that Black lawyers won in the 20th century. The fact that even one — though only one — white judge had seen the law in terms of its effect on Black people kept hope alive in the Black community. From church pulpits, he was hailed as a prophet in his time.
In recent decades, Harlan’s famous phrase that “the Constitution is color-blind,” which underscored his fierce insistence on equal protection under the law, has been cited by conservatives to criticize affirmative action. This culminated in Justice Clarence Thomas’ concurring opinion in this year’s case striking down race-based college admissions policies, in which Thomas repeatedly leaned on Harlan’s famous dissent in the segregation case of Plessy v. Ferguson. Thomas argued forcefully that Harlan would not tolerate the use of race in school admissions.
That meant that, in the words of the New York Times opinion pages, “No One Can Stop Talking About Justice John Marshall Harlan.” I heartily agree. As author of a recent biography of Harlan, I believe his views are uniquely relevant to these times, and his story is essential to understanding the roots of wisdom in judicial decision-making. However, the Times piece underneath that headline, by the respected opinion columnist Jamelle Bouie, went on to make two key points — one reasonable and one, in my opinion, misguided. Bouie suggests that the notion of a purely color-blind Constitution can be used to cement white privileges in the law. Fair enough. He also goes on to suggest that this was what Harlan intended to do.
A closer look at Harlan’s Plessy dissent, and the wider arc of his career, does not support that contention. It’s entirely possible to resist the way that Thomas and other justices have approached the notion of a colorblind Constitution and still admire Harlan’s commitment to equality for African Americans and all other citizens. In fact, a proper reading of history demands such a verdict.
Bouie suggests a full assessment of Harlan’s Plessy dissent reveals his true motives: “When read in its entirety, the dissent gives a picture of Harlan not as a defender of equality, but as someone who thinks the Constitution can secure hierarchy and inequality without the assistance of state law. It’s not that segregation is wrong but that, in Harlan’s view, it was unnecessary.”