The Great Dissenter: The Story of John Marshall Harlan,

America’s Judicial Hero

By Peter s. Canellos

Published by simon & schuster

reviewed by BraDen riley

Clocking in at roughly 500 pages, Peter Canellos’ The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero is much like the many opinions of its namesake: complex, thorough, and lengthy. But the tale of John Marshall Harlan’s life is a prodigious one and thus requires a great deal of backstory in order to appreciate it fully.

The first of the book’s three parts walks the reader through the historical context in which John Marshall Harlan grew up and, on the nomination of Rutherford Hayes in 1877, eventually ascended to the United States Supreme Court. At the time of his birth in 1833, Harlan’s native Kentucky was embroiled in the slavery debate of the antebellum period. Canellos expertly navigates the reader through the intricate ways in which this debate shaped Harlan’s views, particularly in light of Kentucky’s position as a border state between the North and the South and how this geographical happenstance tore at the Bluegrass State’s social fabric, with friends and neighbors turning on each other as the Civil War drew near.

Canellos focuses on two notable fig- ures of Harlan’s early life: his father, James, and Robert Harlan, an enslaved person held in bondage by the Harlan family. Canellos describes how the elder Harlan’s intense belief in maintaining the Union was ingrained in his son at an early age and how it would later resurface in John Harlan’s jurisprudence.

As for Robert—long thought to be John Harlan’s brother, albeit DNA testing of the two men’s decedents undermines this theory—Canellos speculates that his life served as a major influence on John and his decisionmaking as a jurist, particularly on issues related to civil rights for Black Americans. True or not, Robert’s story is a fascinating one, even without his connection to John, and it spans James Harlan’s (unsuccessful) efforts to have Robert formally educated at the local school all the way to Robert’s rise in Ohio politics, during which he befriended Frederick Douglass and other famous members of the Black community of that era.

Although those who recognize John Harlan’s name at all doubtlessly think of his dissent in Plessy v. Ferguson, Canellos reveals that Harlan was a more complicated figure and, in his earlier years, not a staunch defender of civil rights. Not only was he at one time a member of the Know Nothing Party—which advocated against Catholics and immigrants— Harlan also encouraged others to stand by the Dred Scott decision and later spoke against the Emancipation Proclamation. Perhaps generously, Canellos portrays these moments as arising out of Harlan’s belief that the United States should be preserved—to John Harlan, nearly any price apparently was worth- while to maintain the Union.

As the first part draws to a close, the reader learns how Harlan came to join the Republican Party and, not without scrutiny from his contemporaries, made an about-face in many of his previous stances regarding race and civil rights. The Great Dissenter never conclusively resolves the true genesis for this turning point in Harlan’s views, but, as the second part of the book demonstrates, Harlan’s changed views would have a profound effect on the debates concerning civil rights in post-Civil War America.

The book’s second part is a behemoth, taking the reader through 24 years of Harlan’s tenure on the Supreme Court. Harlan’s dissents span some of the most well-known cases in American law—the Civil Rights Cases of 1883, the Sugar Trust Case, the income tax case of Pollock v. Farmers’ Loan & Trust Company, and, of course, Plessy—and Canellos describes each in fine detail. Here, the author’s thorough research and engaging narrative truly shines.

Moreover, Canellos is unsparing in pointing out that, despite the influence of Harlan’s dissents in the Civil Rights Cases and Plessy, modern-day scholars nevertheless have criticized Harlan for his shortsightedness in other cases, particularly those focused on the rights of Asian Americans, who likewise faced intense discrimination.

On balance, The Great Dissenter capably illuminates the life and times of a Supreme Court justice whose work remains worthy of attention.

Braden Riley is an associate at Cozen O’Connor P.C. and member of The Houston Lawyer editorial board.