Hero #4 John Marshall Harlan

This post summarizes the second section of the book I just reviewed. To highlight why I think he's such a respectable guy, I'm contrasting him against fellow justice Oliver Wendell Holmes.

Who would have thought that former slaveowner John Marshall Harlan would be more respected by history than former abolitionist Oliver Wendell Holmes? Both fought in the Civil War, but while Holmes developed a nihilistic attitude, Harlan became the Court’s greatest proponent of civil rights.

Holmes, unfortunately, was the man of his day, and was celebrated as “a democratic visionary.” He hated all forms of moral certainty, and refused to strike down Jim Crow laws that – by common understanding – clearly contradicted the Reconstruction amendments. He viewed politics as war and life as a Darwinian struggle for power – he felt it belonged to those who could amass it. In the 1920s, he upheld eugenic sterilization laws directed at the mentally disabled.

Harlan, on the other hand, “was dismissed as a moralizing eccentric.” Harlan was the sole dissenting vote when the Court struck down the Civil Rights Act of 1875. When the Spanish American War brought foreign territories under the U.S. flag, he argued (unsuccessfully) that the Constitution follows it, an opinion that resonates today with the critics of the Guantanamo Bay prison.

According to this account, Harlan felt comfortable intermingling with people of various ethnicities, and held middle class values.

He passed away in 1911. Two generations later, his grandson (with the same name) also became a Supreme Court justice.