 Greetings from the National Archived Flagship Building in Washington, D.C., which sits on the ancestral lands of the Nacotchtank peoples. I'm David Ferriero, Archivist of the United States, and it's my pleasure to welcome you to today's virtual author lecture with Peter Canellis, author of The Great Decentre, a new book about Supreme Court Justice John Marshall Harlan. Before we begin, I'd like to tell you about two upcoming programs you can view on our YouTube channel. On Tuesday, June 22nd, at noon, author Les Standefort will tell us about his new book, Battle for the Big Top. Standefort reveals the stories behind the three men, James Bailey, P.T. Barnum, and John Ringling, who created the American Circus. And on Thursday, June 24th, at noon, Patrick K. O'Donnell will discuss the Indispensibles, his new book about the diverse soldier mariners from Marblehead and Beverly, Massachusetts, who rode Washington's troops across the Delaware and formed the origins of the U.S. Navy. When Supreme Court decisions are announced, attention is focused mainly on the majority opinion. A dissenting opinion, though, may end up having as great an influence on future law. Chief Justice Charles Evans Hughes stated, a dissent in a court of last resort is an appeal to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed. As an Associate Justice of the Supreme Court in the decades after the Civil War, John Marshall Harlan, known as the Great Dissenter, was the sole dissenting voice in the landmark case Plessy v. Ferguson, which established the principle of separate but equal. Time after time, Harlan made an appeal to the future in his dissents and forcefully pointed out the misguided decisions of the majority. Though he was in the minority when the court heard the cases that weighed civil rights and labor protections, his dissents laid the groundwork for later protections during the New Deal and civil rights eras. Peter Canales is editor-at-large at Politico, where he oversees investigative journalism and major projects. He has also been Politico's executive editor and the editorial page editor of the Boston Globe. He edited Last Lion, the New York Times' best-selling biography of Ted Kennedy, and has overseen two Pulitzer Prize-winning projects and five Pulitzer finalists, among many other awards. As a writer, he was the recipient of the American Society for Newspaper Editors Award for Excellence in Editorial Writing. For the past 12 years, Peter has worked with the International Women's Media Foundation overseeing the Elizabeth Newfer Fellowship, given to a woman journalist who studied human rights at MIT and interned at the Globe in the New York Times. Now let's hear from Peter Canales. Thank you for joining us. I'm Peter Canales, author of The Great Dissenter, the story of John Marshall Harlan, America's judicial hero. It's an honor to be here, and it's especially an honor to be here with Anurima Bargaba, who is a senior civil rights official in the Obama Administration Justice Department. She's now chairman of the U.S. Commission on International Religious Freedom. Thank you so much, Anurima, for joining us, and I look forward to your questions. Thanks so much, Peter. It's such an honor to be able to be here to talk about this extraordinary book that you've written about someone that I knew very little about. And so I think that we both have such a long interest in the law, and I wanted to just start by asking you, what drew you to Justice John Marshall Harlan? Well, I was a law student 30 years ago, and as you know, Anurima, when you study law, it can be a very dry exercise. There's casebooks, and you're just going through case by case and following this progression. And Harlan's dissents really sort of left off the page. They were written in with a sort of heightened sense of justice. They were written with a recognition of how court decisions can affect life on the ground. They reflected sensitivity to average Americans, in many cases African Americans, which was extraordinary for its time. So I always had Harlan in my mind as a fascinating figure. Then in 2005, I was the Washington bureau chief for the Boston Globe, and I was overseeing our coverage of the appointments of Justice Robert and Roberts and Alito, the court, and was looking through this giant sort of legal encyclopedia that we had in our old office back at the Boston Globe. And I found a thumbnail biography of Harlan that made reference to Robert Harlan, who presumed at that time to be his half-brother and an African American leader and civil rights figure in his own right, who had some sort of mysterious influence over Harlan. Mysterious influence sounds a little more conspiratorial, but had real impact on Harlan's life and his perception of people of color. And that got me further intrigued. So I started trying to learn a little bit more about Harlan and kind of move on. And I went from job to job in different places, and it wasn't until 2017 that I felt like I had kind of the bandwidth to really dig in deeper on this subject and found that it was an even richer story than I imagined. Before we turn to the mysterious influence of Robert Harlan, I wanted to ask you about those, the decisions of Justice Harlan that you were familiar with. The one that obviously most people have heard of is his dissent in Plessy v. Ferguson. I actually didn't know about many of his other dissents or any of them, actually. And it's certainly, I'm a civil rights lawyer, someone who would have looked to those. And so do you remember if there were other dissents that that struck you from law school or even in the intervening years of Justice Harlan, or were you like me focused on Plessy? Well, there clearly were others that I saw. I can say that they stood out in the way that the Plessy v. Ferguson dissent did. But certainly now that I have researched them more fully, they strongly stand out. I think it was more in law school, just a matter of when you would read some of these cases that were incredibly perplexing, like the Pollock case, which declared the income tax unconstitutional, they poured right in the middle of the Gilded Age overturned 100 years of precedent to say, no, you can't tax incomes, even though there had just been an income tax to fund the Civil War. You know, if you read Harlan's forceful dissent, you know, it's the same person who is expressing a sort of heightened sense of justice, sense of injustice in the case of these dissents and concern for the average American. Let me just be sort of with a thumbnail account of why Harlan was extraordinary. I would say that that period that he served from 1877 until 1911 was one of the most consequential periods on the Supreme Court because they were interpreting the post-Civil War amendments, the 13th, 14th and 15th amendments for the very first time. So it was almost a matter of a first impression. You know, what do these amendments mean? And in the case of civil rights, they pretty much went through step by step and starting in 1883 invalidated the Civil Rights Act of 1875, which provided black people with access to inns and restaurants and transportation. The court invalidated that. Then you had cases, including voting rights cases like Giles v. Harris, where the court essentially said the South wants to disenfranchise black people. There's really nothing we can do about it. Harlan said, yes, there's something you can do about it. You can order them to be registered and vote. Then you have Berea v. Kentucky, which banned interracial education even in schools which were dedicated to that principle. So during that period, the court's treatment of African Americans not only was abominable, but it consigned the nation to 70 years of segregation, and it meant that all of the adjustments could have been made in Harlan's time, the social adjustments. I mean, it would never have been easy on the racial front anyway. But essentially everything that happened after Browning, the Board of Education in 1954, could have happened after 1883 if the court had followed Harlan's advice. Separately, during the same period of time, you have this tremendous inequality in America, an entire era that was marked by the creation of great fortunes. People building these palaces that they modeled off of the castles of French kings in Long Island, in Newport, on Fifth Avenue, elsewhere. And at the very same time, and often in the same cities like New York, you had immigrants living ten to a room in plainly unsanitary conditions, all working people, because the wages were so low, they couldn't even afford a room. How did that happen? Why did that happen? Well, it happened because the Supreme Court declared that the Sherman A.D. Trust Act was unconstitutional, the Income Tax was unconstitutional, and in Lackervie, New York, they said you can't regulate for labor. So it extended the guilt at age for 20 years. What is the common thread between all these decisions we've talked about, civil rights, voting rights, plus U.V. Ferguson, the Berea case, the Income Tax case, the Antitrust case, Lochner, John Marshall Hellen dissented in all of them. So if people had listened to him in the first place, the world would be very different. It would have been different in his time, and it would have been very different now. I want to ask you about the common thread. So you talked about all of the different areas in which his dissents and the ways in which he viewed the world as a place where equality did not tolerate caste or class or race. What were the through lines between these dissents? When you think about the principles that Harlan espoused in these dissents, what are the ones that you turned to? And then I'll later on ask you how you think about those now. Sure. Well, one of them is that he believed in a national destiny. This was a man who grew up and came of age in a period of crisis in Kentucky just before the Civil War. His family were admirers of Henry Clay, called the Great Compromiser, because he was always trying to forge compromises between North and South to avoid a civil war. It's a very simple answer to why Kentuckians, not just Clay, but the Crittendons and the Breckenridges were always working very hard on these compromises. It's because they believe that their state would be the battlefield. And not only would it be the battlefield in terms of there being carnage in Kentucky, but because it was half state, half slave and half free, in terms of political sentiment, it would it would have this devastating breach. It wouldn't know which side to be on. Essentially, it would be a tortured border state. So Harlan grows up under that that sense of pressure in the South. Everyone was talking about state's rights, right? In in South Carolina, you know, the state is the king. The federal government is subservient to the state. In the North, it's abolition, abolition as a moral principle. Harlan believed that whatever the solution would be, it had to be a national solution. He believed in the Constitution. He believed in the Declaration of Independence. He believed that those principles and those documents superseded state law. It superseded state constitution. So when he got on the Supreme Court, he was often more deferential to the ability of the federal government to tackle problems. So when the federal government, the Congress and the White House, approved the Civil Rights Act of 1875, Harlan saw that as a totally legitimate attempt to legislate and implement the possible war amendments. He believed that it was democratic. It was the democratic system working. He felt the same way in places like Lockner v. Kentucky, when the state legislature of New York made a decision that limiting baker's hours to 60 hours per week was a reasonable health and safety measure. So he was very deferential to the legislature's ability to solve problems. By contrast, the other justices pretty much to a man came from very different backgrounds. They tended to be Northern attorneys who came of age during a time when lawyers went from being the local person who put a shingle up outside their house and helped people solve problems in very simple ways to being these sort of adjuncts of corporate America where they would come up with legal theories that were designed to thwart government regulation. Many of them became extremely wealthy themselves representing the railroads that were at that time working hand in hand with a lot of corporations to try to control the means of production and control the, you know, dominate the certain industries. So these were very conservative people, whether they were appointed by Democrats or Republicans, conservative for their time. And they looked at the post-Civil War amendments very differently. They looked at that as a way to preserve what they saw as individual rights, but in a way that was somewhat wrong-headed. You know, they created, for example, the right to contract, which was to say, what about the baker who wants to work more than 60 hours? This is the state of New York is violating that person's right. It was a sort of perversion of justice because everybody knew that the problem was that employers were demanding that people work longer than 60 hours just because they could and they were paying them whatever they wanted just because they could. And the state of New York was trying to solve that problem and enforce livable conditions. Conservatives were sort of crying out these theories of sort of individual rights and individual combination over the government, essentially, at that time. And they misused the post-Civil War amendments to that end. And I think the proof is in the pudding that today's conservatives don't endorse those views at all. Today's conservatives view the lockdown decision as a disaster and nobody's gonna say the sermon anti-trust act is unconstitutional. Nobody's gonna say that the income tax is unconstitutional because a constitutional amendment was passed to support it. So it's a very interesting situation in both the race cases and the economic cases. The decisions of the Supreme Court under Chief Justice Melville Fuller during the 1880s, 90s, and the first decade of the 20th century have largely been discredited while Harlan's dissents have become the law of the land. In some ways, one might say that the dissents in the economic cases were more of a legacy of Harlan than those in the civil rights cases. I mean, I certainly don't wanna go down the road of trying to parse that out. I do, I'm fascinated by Harlan's own evolution. And so it grows up with Henry Clay and the man who strikes the compromise of 1850 as being a model of what he looks to as a compromiser, one who brought people together, but did so by making certain concessions. And then you see him later in his life in the way that I read this as an advocate, as someone who really becomes a supporter of the rights of many and about to the compromises that many of his fellow justice were making and frankly, many in the political scene were making. And so how do you think about that evolution and did he have some of the politicians or others around him who were making a parallel evolution at that time in terms of the way in which they view the country and the rights of those who had recently come to be free? Well, the interesting situation is that the rest of the country was moving in the opposite direction that he was moving, but I think he came to view compromise as being unsuccessful. And I think he found the moderation that he was defending and supporting in the 1850s to be untenable. And he came to think that the reason those compromises failed, though he probably would have said they were honorable attempts, but the reasons that they failed is because they didn't take account of the great moral wrong of slavery. And in his mind, the moral wrong of slavery was too pronged. It was a moral wrong to treat people that way. He came fully to that belief and believed strongly in the equality of human beings, but he also came to believe it as a violation of the core principles of the United States. So he grew up in this heightened environment of patriotism, believing in the constitution and the Declaration of Independence. And he came to believe that what almost destroyed those documents and destroyed the whole American experiment in Republican government was slavery, which was a corrupt compromise that the founding fathers made. So he abandoned compromise. Compromise was no longer his preferred way of dealing with things after the Civil War or after a few years after the Civil War. And certainly by the time he was on the court, the most vivid illustration of this, I think is the insular cases. In the first decade of the 20th century, the United States became the sort of overlord of Hawaii, the Philippines, Cuba and Puerto Rico. Very different, slightly different arrangements in each of those cases, but the United States had power over those nations and they were part of the American sovereignty. Harlan took the position that the constitution follows the flag. That if people are living in the Philippines, they have to be entitled to full constitutional rights because the constitution is supreme in this country. So he wrote very eloquent dissents when the Supreme Court tried to enact these sort of very unsatisfactory decisions that gave Congress all this power over people in those countries. Again, with race being front and center, the opinions when you read them are full of racist stereotype about who deserves democracy and who doesn't deserve democracy and those kinds of things. But Harlan was very eloquent in sort of saying, you cannot have two systems under one flag. You cannot have one set of rights where the constitution is king and another set of rights that is cobbled together by Congress depending on who's in charge politically at any given time. That, what you're hearing there is you're hearing John Marshall Harlan referencing his own mistakes from the 80s and he's saying, look, no, we tried this once before. One set of rights for black people, one set of rights for white people, it doesn't work. And it won't work if you're talking about the Philippines. It won't work if you're talking about Puerto Rico. It won't work if you're talking about Hawaii. We have to stand up for the constitution. So moving from that, I mean, I wanna get to talking about the mysterious influence of Robert Harlan because I think for me, the revelation of reading this book was to be introduced to Robert Harlan, a figure and person and frankly entrepreneur and energy that I had not again knew anything about. And I was just thinking about when you were mentioning the insular cases that in some ways Justice Harlan didn't really leave the United States. I mean, he was someone who spent his time really invested in Kentucky and invested in this idea of a national destiny and trying to bring the country together. And what I mean by that is compared to his brother, Robert Harlan, who traveled the world. And so in what ways did you have these two figures who ended up meeting in so many different points in their lives? And I just wanna start by asking you about Robert Harlan, who he was. You talked about how you discovered him and to begin with, but what did you learn about this extraordinary man from getting into this book about Justice Harlan? Well, first of all, we learned that he was extraordinary and he was not only extraordinary in the obstacles that he surmounted, but he was a very prominent figure in his time. He was a major political leader in the United States. He was a wealthy man. He played key roles in the development of sort of a national identity for African-Americans after the war, national political identity for African-Americans after the war. Robert Harlan was born in Virginia. He was born in a place near where James Harlan, who was the father of John Marshall Harlan, had relatives. When Robert was eight, he and his mother undertook a journey, almost 500 miles from Virginia to Harlan's station, which was the small hamlet where the Harlan family lived in Kentucky, near Danville, Kentucky. And news reports said that they were in search of his father. And some of the news reports said his father was dead. Others said that his father was James Harlan, who was John Marshall Harlan's father. Either way, we know that James Harlan took ownership of Robert at a time when Robert was eight. James was only 24 and newly married. And that began a very close and as we were saying, mysterious and unusual relationship between James Harlan and Robert Harlan. Now, to many people, I think in Kentucky at that time, they would look at it and knowing what happened in slave-owning families. They would probably say, well, this is a person of mixed race who was enslaved in the house, but who gets special privileges. And it seems to be a special favor to the father. They're going for he's the father's son. And I think that is what people assumed. But because he was mixed-race, he wasn't able to go to school, which the other Harlan boys, including John, of course, were able to do. James Harlan was the leading attorney in Kentucky. He was a close confederate of Henry Clay's. And he wanted Robert to be educated, but because Robert wasn't educated, it wasn't accepted in schools, he got to, from a very early age, spot opportunities for African Americans that other people may not have seen. The first was the horse racing industry. Because a lot of the original horse owners were sort of wealthy people in Kentucky, and they had their enslaved men working as jockeys and painters, this was a field where African Americans, both free and enslaved, could make an impact. And Robert did, he became a great expert at sizing up a horse. He would barnstorm the state to arrange races. He would take bets. He was a real horse racing pioneer. When he got to be a little bit older, he moved to Lexington, Kentucky, and opened a store. But the racial situation quickly got worse in Lexington. There was a group called the Black Indians that, of course, were neither Black nor Indians. They were white people dressed up who would harass people of color in Lexington. When he was somewhat driven out, then he senses that the gold rush is another place where you can have opportunity as an African American because of totally wild Northern California gold fields where there hadn't been time for prejudice to take root. And everybody who went there was kind of an adventurer and a renegade. So people weren't taking account of your race. And many of you are actually coming in from overseas also for the gold rush. So it was a very multi-racial situation in the gold rush. So he goes to the gold rush and comes back with $90,000, which is the equivalent of $3 or $4 million today, which is enough to make him a very wealthy man. And then he saw his next opportunity in Cincinnati, which was the terminus of the Underground Railroad. It was the first large, free city for people of color coming out of the South. He used his money to invest in Black-owned businesses. He sensed, again, that photography, which was then a brand new technology, was another area where African-Americans could succeed because there wasn't any white infrastructure to prevent them from succeeding. So he invested in photography studios. He also invested in the leading Black hotel called the Dumas House, that also served as a place of protection on the Underground Railroad for people coming out, especially when the fugitive playback was cold. Then he sensed that as the situation got worse and worse on the eve of the Civil War, he took his family to England along with American horses as a sort of showman trying to prove that American horses could compete with British thoroughbreds in the sport of kings. He became a celebrity in Europe, not just in England, in Ireland, in France. Then after the Civil War comes back to Cincinnati and becomes the leading Black politician in Ohio, which was the most important state because it was a crucial state in determining the president. It was sort of the twin state of that era. So Robert Harlan had tremendous cloud. The Black community was what allowed the Republicans to win the electoral votes of Ohio. He controlled a lot of the Black votes. So he was a very powerful person. He became personal friends with Ulysses S. Grant, Rutherford Hayes, all these people. And he used some of that power to help John Marshall Harlan get on the Supreme Court. He helped him in several ways. One is there was an incident involving a shooting by a cousin of John Marshall Harlan's on his mother's side of the family, a shooting of a Black man that really tarnished John Marshall Harlan's reputation in the Black community. Robert Harlan went to Washington to sort of negotiate a settlement of the situation and protected John Marshall Harlan's political viability at that moment. They also worked together in organizing, helping to organize the 1876 Republican Convention, which was his and Cincinnati, Robert's hometown. And then afterwards, Robert would send letters to John talking about how he was going to Washington and promoting John as a potential Supreme Court justice. He, Robert, being so much older, knew that James Harlan, the father and the family had wanted John, had named him John Marshall after the great Chief Justice, and wanted John to go to the Supreme Court. So here Robert is playing a significant role in John's success. We don't know whether they were, they truly considered themselves brothers. We don't know whether they were conferring politically on other levels, but we do know some things. We know that Robert liked and trusted and believed in John. It was willing to stake his own political credibility on John. John also accepted this help from Robert in a spirit of equality. He did not demand favors. He never rejected Robert. He didn't seem to be stigmatized by the idea that Robert would be considered his half brother. So I think that adds up to, at minimum, a relationship of respect and a relationship of understanding. But then when you project forward a decade or two and you have these seminal cases, the civil rights cases of 1883 taking away civil rights, plus CB Ferguson endorsing the legal architecture of segregation, all of these northern justices, the same railroad journeys we were talking about before, were quick to accept the idea that, black people were really not necessarily deserving of these rights. They claimed that the civil rights activities by the special privileges to blacks was of course ludicrous at a time when the Ku Klux Klan was at its height. They claimed in plus CB Ferguson that the only possible stigma in having separate carriages on the railroad was because black people themselves would put that construction on it, which again was ridiculous because everybody everywhere knew that that law was passed to separate black people out. So the majority opinions were ridiculous. They were terrible decisions and they were based on prejudice. Why did John Marshall Harlan alone among those justices refused to go along with those cases? You have to surmise that on some level, he saw Robert Harlan's face. He saw Robert Harlan's struggles and experiences when he heard about the importance or lack of importance about black rights, he understood that even people born into slavery, when their rights were protected after the civil war or in Robert's case, when he went to the gold rush, when he was in England and things like that, he succeeded spectacularly. He succeeded far to a far greater extent than any of John's white brothers succeeded. He had more money than John, you know? So how can you, when you're sitting in the room with these justices, believe in black inferiority and the black problem and all of that? He didn't see any of it. He was able to see individuals. And I think that is the mysterious influence. We wanna call it that that Robert Harlan had over John Marshall Harlan. And I wanna say, we haven't talked yet about the effect of Harlan's dissent in the future, but that makes the relationship between John and Robert Harlan important in history because the fact that John dissented in these cases played a major role in keeping hope alive in the black community. It also provided a legal roadmap for pioneering black attorneys in the next century to adopt some of John Marshall Harlan's ideas and use his dissents to help try to overturn some of the court rulings that John had argued again. And so if we believe that it's very important in American history that those dissents existed, we have to believe it was also very important that Robert Harlan was there to provide a role model for John Marshall Harlan. So I think of him not only as a role model, I mean, you could actually have that cut in a couple of different ways. He could have looked at Robert and said, he made it, right? He made it in a whole bunch of ways that maybe the realities aren't as difficult as some might make them out to be, right? But the way that I think the most important thing that he might have understood from Robert Harlan is the realities of it, right? And so part of what you get from Justice Harlan is a record, a record in a legal context of the actual realities of what things were on the ground. And so he was calling out his fellow justices who might have tried to contort themselves into different legal approaches, frames, structures to justify the kind of decisions they were making. And he's like, it doesn't comport with the realities of what's actually going on. And I wanted you to talk a little bit about how you think about Justice Harlan being a recorder in that way of what the actual realities were on the ground, whether it be the Civil Rights cases of 1883, whether it be in Plessy versus Ferguson. And probably most importantly, in terms of the economic inequalities that so many were facing at that time, and he becomes the one who puts that into the very content and structure of what the Supreme Court is dealing with. I think that's exactly right. And I think it also shows, it shows the importance of personal experience in judging. There are many factors that go into a correct ruling and a proper ruling. And obviously one of them is pure logic and legal analysis and fitting it into a framework of cases that exist and respecting precedent. But the other way is understanding that justice isn't always clean and easy. Justice is something that needs to be neatly credible and understood. And I think that Harlan came to understand that and believe that for several reasons. One is, I think he did believe that with the Dred Scott decision in 1858, that was the final straw that pushed the country to civil war. And he thought it was abominable. It took away all black rights. It took away any hopes in the future of black people having anything like a state of equality short of a war. So he understood how the Supreme Court can get it wrong and that getting it right is not a matter of coming up with some grand theory that sort of somehow connects all the dots. It's understanding what is right for the country and what is right for the people who are gonna have to live under those decisions. His experience with Robert Harlan, I think it's a huge comment you're making that he could have just assumed well, Robert, if Robert can succeed, why not others? And probably some other people might have made that assumption. But I think he was smarter than that. And because Robert was there in the same home, he knew that Robert was barred from legal practice. He probably believed, look, if Robert had been given a chance to go to school, he would have succeeded in the law. He knew Robert Harlan instead. The only thing that Robert was given a fair shot at was horse racing and he succeeded in that. And then he went to the Gold Rush, the wild unlawful West. It actually got a fair shake there. And then he went to England and got a fair shake there. And so I think it didn't take a lot of sureness to believe that Robert did succeed, but only in situations where his rights were protected as they basically were in the first 10 years after the Civil War, when Robert became very successful in Cincinnati as a political leader. He also founded an all black battalion in the National Guard, which was a very shrewd move at the time because it built political support for the black community. It showed that these newly freed, in some cases, many of the people were newly freed slaves, believed in sharing in the national defense. They would share the burdens of citizenship. And he very much framed it that way in talking about it. He'd also founded black schools. He had also played a role himself in building support for the Civil Rights Act of 1875, which then got overturned by the Supreme Court to John's and sparked non-descend. So I think that Robert Harlan was a huge part of why he was in touch with what was going on with black people. I will note that John Harlan also reached out to black people who are not Robert. He spoke at Metropolitan AME Church, which is not that far from where we are now, the largest church in Washington, but he was a regular visitor there and spoke there. His daughter had worked in a school with the children of freed slaves and she died at a very young age and he believed that he was sort of standing up for her rights and principles also and advancing her beliefs in some of these courts. And when he went to Kentucky near the end of his life or sort of his final visit to Kentucky, he offended his host by insisting on meeting with a group of black attorneys. There was a case, a horrendous lynching case in Tennessee at a time when the Supreme Court had completely turned its back on the fact that Southern criminal procedures were blatantly violating the federal constitution. And I think most of the justices believe there was really nothing they could do and they didn't want to pick a fight with the South. Harlan in his circuit capacity had the power to order reviews of cases and on his own he ordered a review of a case that led to a horrendous lynching when the very leaders of Chattanooga, the people who were supposed to be upholding the law, left the jail and guarded and allowed a mob to take a black defendant who had been wrongly convicted and lynched him in one of the most horrific, chromatic illustrations of the violent repression that was going on in the South at that time. Only Harlan was willing to speak up for it. Then Harlan after the lynching is so outraged that he demands that the Supreme Court, which has been unwilling to exert its control over these state authorities, demands that they try those local officials for abetting mislinching and succeeded in getting a conviction of a former Confederate who was the former Confederate captain who was the local sheriff in Chattanooga. Interestingly, today that case is the best documented lynching case in the country. So you had this phenomenon where there were lynchings happening all the time, but it was always people in hoods and the local officials were always saying, oh, we have no idea who it could possibly be. This was a case where we know who it was and it was the leaders of Chattanooga. It was the sheriff, it was the judge, it was other people who were in prominent positions. And we can look at, because it became a public case, we can look at the level of responsibility in Chattanooga, including for journalism, as a long-time journalist, it shows just how irresponsible the press was at that time and they played a role in inciting that killing. There were a handful of sort of heroic white ministers. There were many white ministers who were not heroic at all and helped to stir up the mob. So it was an indictment of an entire city. The wonderful thing that has happened now is that because Chattanooga is rediscovering this case, it's prompted real discussions. It is something that is talked about in public schools in Chattanooga. There's been a years-long process in building a memorial to Ed Johnson, who was the man who was lynched. And it's a joint effort from the black community and the white community in what had been a very segregated Southern city. What I think that shows is how a person like John Marshall Harlan can make a difference. If it were not Harlan ordering that review, there would be no record of the injustice that occurred in the original case. If it were not Harlan holding local officials responsible for the lynching, there would be, you know, it would still be shrouded in that, oh, well, it was a mob, you know, it was a riffraff did it. You know, we certainly wouldn't support something like that. In fact, you know, he was able to point his finger at the leaders of Chattanooga and say you did support it. And that's very, very significant to our understanding of the lynching problem through history. We hadn't had a chance to talk about this, but a very close friend of mine was a city attorney, the black city attorney of Chattanooga and just ran for mayor. And so this is so much a part of his history growing up in that town and almost being the leader of it, right? So there's so much in the ways in which all this interplays. I wanna complicate Justice Harlan a little bit because he evolved as we talked about, but in some of the ways in which he evolved was that he was not a fan of the 13th amendment and its passage. And yet the language of the 13th amendment ending slavery but also talking about the badges of servitude is something that he so embraced later on. He was a slave owner, which people raise and how he came to be a slave owner and what that actually meant to him is something I think is really important to try and unpack for Justice Harlan. And sort of I think the very often what we see in history which is the ways in which there are seeming contradictions but maybe those are also extraordinarily important influences in terms of how someone gets to a place of understanding the rights and worth and dignity of others. Well, I think those are all excellent points and to just provide a little bit of context of his life. And I think this is an illustration that there are no perfect people and people are dealing with very imperfect situations and very troublesome histories in this case of state history. He was born into a family that had slaves. He did not buy slaves himself. He only became a slave owner in 1863 when his father died which was right at the very, very end of slavery. And he became the owner because his mother had a lot of debts. The father left a lot of debts behind and his mother would have had to sell the slaves to pay that. He stepped in to take financial control of his mother and technically became the owners of these slaves but again, we don't know what any of the motivation was. I think that there's significant evidence to suggest that he regarded the slaves as being an adjunct of the family. You don't want to say part of the family because I don't think there's anything like a sense of equality but I think that he could have been stepping in to prevent the slaves from being sold into what would be a potentially disaster situation for them. So if that puts a somewhat more benevolent, cast on his motives, I think that is a reasonable assumption that people can make. But again, people can read the evidence many different ways. And again, as we talked about in the 1850s, he was not a radical, he was not an abolitionist. He was not a person who was standing on the street corners and speaking of the ills of slavery. Again, it's partly scalpatory that there were very few people like that in Kentucky and for somebody who was making a career in mainstream politics, it was essentially impossible to make that decision and stay in mainstream politics. He chose to stay in mainstream politics. So then you also mentioned the post-Civil War amendments. He worked desperately hard to keep Kentucky neutral in the Civil War at a time when a lot of people felt that if Kentucky had joined the Confederacy, it would have set off sort of a domino effect in border states and would have greatly imperiled the union. So he worked quite heroically, like sleeping on the floors of offices in the state house because the Kentucky governor was a Confederate sympathizer and was sort of maneuvering to try to move Kentucky into the Confederacy or was perceived to be doing that. And Harlan and his father and others worked desperately hard in a situation that required them to stand on street corners and speak all day long basically with bull horns in front of their faces to try to persuade people to remain neutral and not join the Confederacy. So he felt that part of his bargain with his state people that he persuaded them to stay neutral knowing that having had assurances that the union leadership would respect that and would give Kentucky the right to control its own future after the war. So then the war ends and essentially they're being forced to accept these amendments to the constitution, one of which banned slavery. Slavery is a huge issue in Kentucky. So a lot of people are coming to him and saying, you forced us to go with the union and now the union is taking our control away. So he initially opposed those amendments and opposed ratification of them. I don't think it was an honorable thing. It's not something I would particularly respect about John Marshall Harlan, but it is ironic that once those amendments being part of the constitution he became their greatest defender and he really was. He was the father of equal protection in this country. And there's no one else you could even remotely point to in that era as supporting equality onto the law. He was the sole voice on the Supreme Court. In the legal profession, we spent a lot of time debating this idea of colorblindness and certainly the place where at least I always think of it first showing up as in Justice Harlan's dissent in Plessy. And so what do you think he saw as this idea of our constitution being colorblind, but also how that played out in terms of this understanding of colorblindness being a foundational principle to build on in terms of how he thinks about equal protection and the rights of so many at that time? Well, that phrase came from his dissent in Plessy Ferguson, which I think everybody who's watching this broadcast should read it because it's one of the great civil rights documents of our history. But among the things that he said, he said the constitution is colorblind and neither knows nor tolerates classes among citizens. He said, the humblest is the peer of the most powerful. He said, there is no caste here. A lot of people see that dissent as a vital statement of sort of the purpose of the law, the underlying purpose of the law and the heart and soul of the law. So then you flash forward a hundred years and you have debates over affirmative action and some affirmative action opponents starting with the late William Bradford Reynolds during the Reagan administration started using Harlan's words to attack affirmative action. If the constitution is colorblind, how can it tolerate remedial programs designed to combat discrimination? One of the best defenses of Harlan came from Thurgood Marshall, who was truly a Harlan defender. And he stood up in 1987 and gave a speech and said, the whole reason that we need affirmative action now is because the court didn't listen to Harlan. If the court had listened to Harlan back in 1896 and plus he'd be first, we would have had a colorblind constitution. For 70 years it was not colorblind. That's why we need this corrective material. I do not think that any person seriously reading Harlan's words would believe that he was envisioning an attack on affirmative action. I have no idea as a political proposition whether he would think affirmative action was a good idea or a bad idea. Maybe he would, he certainly was attuned to the lingering effects of discrimination. But I don't think that his phrase, the constitution is colorblind, was meant to say under no circumstances and the federal government. And keep in mind, he was very supportive of the rights of the democratic branches to address national problems. So this whole other idea would have been working in his mind that if Congress was approving these remedial programs, he would have given them tremendous deference to support them. So I don't think it was mine when he said the constitution is colorblind. He meant to say we can never take note of race in addressing legislation that comes out of Congress. And indeed, I think you read his other decisions and you really do get a sense of the ways in which particularly in the civil rights cases of 1883, where you do get a sense of his understanding of the lingering, at that point, very recent but yet so deep impact of slavery, of segregation, of discrimination and the lack of opportunity. And that's a theme throughout, I think so much of his work. I also wanted to give everyone a sense of what that dissent meant for black communities at that time. And so he writes this dissent that becomes not only a legal document, but different from, I think, a lot of the ways in which, I mean, maybe similar to some of the ways in which the decision in Brown versus Board of Education or other parts of our history, it becomes a moral compass, a moral foundation in a different kind of way. And so what was the reaction to his dissent in communities at that time? And how did people embrace or not embrace it in what it represented? It's fascinating, Anurima, because unlike the civil rights cases of 1883, which was this sort of national requiem, everybody in America knew that these cases were being debated, the galleries were packed when the arguments were made and things like that. In Plessy v. Ferguson, the difference between 1883 and 1896, people both black and white had accepted the idea that the Supreme Court was never gonna support black people. So a lot of black leaders led by Frederick Douglass discouraged anyone from bringing the case of Plessy v. Ferguson. They were saying, you know, no good could come of this. All that happens is a really bad precedent will result and he was certainly right about it. It wasn't, it didn't even get its own headline when the decision came through in New Orleans. That's how much of a sort of theta complete they thought it was that the court would support separate but equal. So Harlan's dissent, which was this powerful condemnation of the court, got no attention to the white community, essentially. It's known now because people have discovered it, but whites in 1896 paid no attention. In the black community, however, we now know that it was immediately accepted as a truly important definitive statement of the values that the black community saw in the US Constitution. Only recently, like in the last 10 years, have African-American papers from that era been digitized. So you can now go back and see stories and there were often separate stories about Harlan's dissent in Plessy v. Ferguson. Also, when Harlan died in 1911, you can see tributes. I mean, we're not talking just a few tributes. We're talking about tributes in almost every black paper in the country. We're talking about memorial services in the far reaches of the country from people who never knew John Marshall Harlan, but they were all black services to pray for his soul. Metropolitan AME, this is after they'd already had three all black memorial services for Harlan. They had a giant sort of ecumenical service where people of all different branches of faith came together, all black, and red Harlan's dissents allowed, including the Plessy dissent. So we now know that black people across the board were intensely aware of this opinion. It was intensely meaningful to them that one justice alone was willing to take this stance. So when Thurgood Marshall in the 1940s and 50s is going around the country to try to get plaintiffs who are willing to challenge segregation in courts, knowing that the Ku Klux Klan is organized in these states and is ready to come after them and that they're putting their families in danger, he was able to use Harlan's dissent as a way of persuading people, including his own legal colleagues, that they had a chance for success. The argument was like, if one white person can see things like this, we can get more white people to see it this way. And keep in mind that initially, a lot of the civil rights decisions were decisions by one judge, not decisions by the Supreme Court, but when they finally were able to take segregation on front and center in Brown versus Board of Education, the NAACP Legal Defense Fund brief, which was Thurgood Marshall's brief and Constance Baker-Motley's brief, had Harlan's words right in the heart of it, and it declared that Justice Harlan, not the court's majority, properly defined the role of the 14th Amendment in American life and the Equal Protection Clause. So we now know that this dissent that nobody read in the white commuter sheet had a powerful effect in overturning segregation. I became a young lawyer at the NAACP Legal Defense Fund nearly a century after that dissent, and I can say that it was still a moral compass for the work. And at a time where I think we are, when we think about school segregation, worse than Plessy. We're at separate and unequal in terms of our schools and so many of the places in which we now engage. I also think about this history, which we got a chance to talk about a little bit, but I'm just gonna reference, which is one of the leading Supreme Court cases in the last two decades around this issue of, what do we want America to be? Do we want it to be a place where people grow up together? Do they grow up together across race? And so there's a case coming out of Louisville, Kentucky. And I didn't know that Justice Harlan was so much of Kentucky and from that space. And so when you think about this case coming out, in 2007, trying to figure out like how do you, whether or not people who want to bring their kids together can do so, you think about this long line of Justice Harlan's influence and that influence is even in the dissent in that case, which was penned by Justice Breyer at the longest dissent he had written at least at that time, which very much echoes some of what Justice Harlan tried to bring about the importance of the 13th, 14th and 15th Amendments and the privileges and values that they were meant to live by, right? So, but to Justice Harlan, one of the things that really strikes me about his politics when he ran for office many times and there's lots of things he was trying to do, but his politics, but also his worldview is that he wanted to bring people together. So when I think of him as being a unionist, I think of it as being someone who wanted to have a union of people, right? Like it was a, it's like a sort of a deeper sense of that. He wanted to bring people together across divides. He did not like this idea of extremism. And so I wanted to just get your sense of, what do you think he would one think of in terms of the way in which America is currently headed and situated in a time of extraordinary divide? And then I want to ask you about sort of what he would think about the court's role in that too, but so let's just, just for a moment say, like, how would you think if he was here now and looked at the ways in which divides have, not only the divides he was trying to address, but certainly there are other ways in which we see divides emerging. And how would some of the principles that you think come out of his dissents help us today in thinking about those divides? Well, he was a fierce believer in the rule of law over politics, for example. So some of the actions of the last few years, including the January 6th riot and some of the things that were set around that would have provoked a furious reaction in him. In terms of racial divisions, he immediately perceived after the civil war that this racial problem was not solved. It was actually entering a new and very dangerous sort of state within the country. And he predicted in the Plessy to said what can more surely, through his words, what can more surely sow the seeds of race hate than enactments that proceed upon the notion that one portion of the country is so degraded they can't participate equally in government life and in public life, civic life. I think he would have said that he predicted it, that the terrible court decisions of his era set the stage for the divisions that we're coping with today. I think in some of the cases like you described, where governments on their own were trying to wrestle with these problems and come up with desegregation plans, I think the combination of his deference to the legislature and his belief that the democratic system can solve these problems combined with his strong belief in the post-war amendments and that they created a special right of action for legislatures and the US Congress to address racial inequities, I think he would have supported them. I think that what you mentioned about Justice Breyer's dissent shows the way that the law connects generations. I think it's entirely conceivable that Justice Breyer in writing that dissent was very aware of Harlan's dissent in Plessy and was in some sense handling Harlan. Interestingly today, some of the more conservative justices on the court, on today's court also embrace Harlan believe that his defense of black rights in those cases was being true to the original intent of the post-Civil War amendments and he was defending the plain language of those amendments. There's a professor in Texas who was saying he was trying to come up with like a legal club at his school that would sort of think tank that would embrace all viewpoints and they wanted to name it after a great justice of the Supreme Court and none of them were suitable to both sides except Harlan and Robert Jackson who was more acceptable because he was the prosecutor at Nuremberg. So there we are. That is the state of legal affairs today. There are only two people that both sides can endorse and John Marshall Harlan is one of them which is a strong testament to his enduring legacy. It's a testament to the power of that sort of image of him as the principal figure standing against his colleagues and his deep faith in the constitution and when you were talking about how he wanted to bring people together a unionist in sort of that larger sense. He grew up in a time where he really believed that American democracy was a fragile experiment but a great experiment that everyone else in the world was living under some form of dictatorship and the United States was unique in this way. Towards the end of his life he strongly came to understand and believe that it would be a multiracial democracy. This is probably a good note to end on too. In 1901 he was, or 1902 he was celebrating the 25th anniversary of him joining the court and they had a big testimonial dinner and it was in the middle of the insular cases. Remember those cases involving Hawaii and the Philippines and Cuba and he's standing in the Willard Hotel with the new president, Theodore Roosevelt on one side. The entire Supreme Court is there much of the Senate is there. Everybody's there. Everyone knows that these highly contentious cases are going on. And he delivers in his speech a tribute to the Constitution and ends with, long may it live and long may it preside over people of all races who are protect people of all races who live under its power. I think he intended that to be his great sort of valedictory statement on the subject that he saw America as a multiracial democracy and thought that the ideas embedded in the Constitution articulated as well in the Declaration of Independence would carry the nation through that we can be a successful multiracial democracy if we stay true to those values. That's what he would want people today to remember. Yes and I think it also like people to remember that if you have a chance to become proximate to someone like he was to Robert Harlan that if there's a way in which you can inspire one another up close and to be able to learn from one another's past that both of them were stronger for it and were able to literally transform future of a country in so many ways because of it. And I think that's another of the extraordinary lessons of your book, which was such a revelation to me as someone who has held on to Justice Harlan as that kind of foundational moral vision that he provided for so many of us and also all the ways in which he is a story of evolution of what we need in these times to bring us together to actually be a different kind of unionist in this moment. So thank you so much Peter for all of the learnings that you have in wisdom and detail. And I mean, I love the story of him having writer's block and which I'll tell everyone to go read in the book about what got him on a writer's block which takes you back to Justice Tony and you wouldn't believe that that's the way in which we get some of the great decisions of the Harlan world. So thank you so much for the time Peter. And thank you Anna Rima. I think Justice Harlan would be proud to know that there are young people like yourself who are picking up the cause, leading the cause and carrying some of his values into a totally new century and helping to carry his values forward. So thank you. Thank you very much, Anna Rima. Perfect, see you.