A Seminal Supreme Court Race Case Reverberates a Century Later

John Marshall Harlan was the lone dissenter in one of the US Supreme Court's most significant race decisions of the 19th century. In lofty language much cited today, he wrote, "There is no caste here. Our Constitution is color-blind......"

That dissent against a ruling that laid the foundation for Jim Crow laws - viewed as merely eccentric at the time - showed a dramatic evolution of Harlan's views on legal protections for blacks.

Harlan, a Kentucky native, went from being a critic of Lincoln's Emancipation Proclamation to a judge who left a powerful legacy of support for black civil rights.

What has been little discussed in tracking that evolution is the presence in Harlan's life of a black half-brother, Robert. The offspring of a teenage liaison between Harlan's father, James, and a family slave, Mary, Robert was given the family name and educated in the Harlan home. A successful man in his own right, he offered John Harlan a unique window on black life and, some historians say, may have profoundly influenced the views that culminated in Harlan's impassioned dissent in what is now the famous Plessy v. Ferguson case.

The details of John Harlan's sometimes contradictory and often colorful career are well known to historians. The son of a Kentucky slaveholder, he later gained a statewide reputation as a skilled debater for the staunchly unionist and antiforeign American Party. Early in his career, he defended the Supreme Court's Dred Scott decision, which confirmed the right of slave owners to take their slave "property" into new US territories. But he also raised an infantry to fight for the Union during the Civil War.

What remains little known is his unusual relationship with Robert Harlan. The half-brothers rose to prominence in their respective worlds, John Harlan as one of the longest-serving judges on the high court and Robert Harlan as a wealthy horse racer and politician who served in the Ohio legislature and in several Republican patronage appointments.

But while their family ties linked unfamiliar and unequal worlds, their day-to-day lives remained separate. And John Harlan clearly recognized that while Robert for the most part thrived, he did so within the confines of the limited opportunities available to even a talented - and light-skinned - black.

"John Harlan had a close connection to a man who experienced all the negative consequences of being black," says James Gordon, a law professor at Western New England College of Law in Springfield, Mass., and an authority on Harlan. "Robert Harlan was constrained in what he could do. He apparently continually bumped up against race limits."

Robert and John Harlan were not immediate contemporaries. Robert was roughly 16 years John's senior. He was raised in the Harlan home and given considerable freedom, but remained a slave until he bought his freedom for $500 in 1848.

His unconventional childhood helped start Robert Harlan down the road toward becoming Ohio's most prominent black Republican -and a man on whom white Republicans relied to deliver the black vote. He was relatively wealthy, although his fortunes fluctuated considerably. He was a main benefactor of the first school for black children in Cincinnati and a delegate-at-large to the Republican National Convention in 1872. Three years later, he raised a battalion of black men and was commissioned as a colonel by President Hayes.

John Harlan witnessed this, corresponded with Robert Harlan regularly, and even turned to him for help in getting charges dropped against a white relative who assaulted a black man. As the century came to a close, the relationship between the two may have encouraged John Harlan to weigh in against a state's right to use race as a basis for legislation.

Why he did so appears to be the result of a number of converging forces in the justice's life. John Harlan was not always consistent in his racial views, balking at elements of Reconstruction, for example, and occasionally using race-baiting language. Much of this may have been motivated by pressures he felt from his high political profile in Kentucky - something from which his court appointment freed him.

But race relations and their impact on America's social development clearly troubled John Harlan, as he indicated in his Plessy dissent: "What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races," he asked, "than state enactments which ... proceed on the ground that colored citizens are so inferior ... that they cannot be allowed to sit in public coaches occupied by white citizens?"

Homer Plessy's case brought to national attention experiences with which John Harlan, as a white man who moved in elite circles, was unusually familiar. The plaintiff, like Robert Harlan, was classified as "7/8 white." He - again, like Robert Harlan - did not "pass" for white, but rather intentionally confronted Louisiana's policy of separate but equal accommodations on trains.

It is unlikely that Robert Harlan was the sole influence on Harlan's racial views. James Harlan was a large moral presence in his children's lives, and he shared his ambivalence toward slavery with them. This was reinforced by his treatment of Robert. John Harlan also attended college in Danville, Ky., where antislavery sentiment was relatively strong. As an adult, he had contacts with the black leader Frederick Douglass, whom he admired.

His political outlook also encouraged support of Congress's right to enforce national statutes, such as abolition. "Whatever his attitude about abolition, he was strong in support of the Union," says Tinsley Yarbrough, author of a book on John Harlan and a professor of political science at East Carolina University in Greenville, S.C. "Nationalism was important."

Religious devotion may also have played a role, according to Gordon, although he says this is speculative. "Moral autonomy may have been part of the commitment" for Harlan, a devout Presbyterian who taught Sunday School throughout his adult life.

Nevertheless, Robert Harlan probably cast a long shadow. "Robert was a man who became pretty successful financially, he was well-spoken - that would have made [John] Harlan more reluctant to take the traditional racial view," Dr. Yarbrough says.

Gordon concurs, noting that Harlan's inclusive views did not extend to Chinese immigrants, concerning whom Harlan heard several cases while on the court. "Robert humanized the race cases for Harlan," he says. "He gave him a sensitivity to the consequences of the color line."

PLESSY V. FERGUSON

In 1890, Louisiana passed a statute that segregated the races on public transportation. Homer Plessy, a man who was 1/8 black, challenged the law in 1892, boarding a train and sitting in a car reserved for white passengers.

Plessy argued that the law violated the 13th and 14th Amendments. The case went to the Supreme Court, which ruled in Louisiana's favor on May 18, 1896. The decision laid the foundation for "separate but equal" Jim Crow laws that stayed in effect until 1954, when the Court integrated public schools in Brown v. Board of Education.

Excerpts:

The Majority

"We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

Dissenting Opinion

If evils will result from the commingling of the two races upon public highways ... they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people.... But it is difficult to reconcile that ... with a state of the law which ... puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law.