John Marshall Harlan
(1833-1911)

John Marshall Harlan of Kentucky was rated as one of the 12 greatest justices ever to serve on the Supreme Court in a 1972 evaluation by 65 law school deans and professors of law, history and political science.¹

The father of Justice Harlan was an attorney. He wanted his son to be a lawyer from the time of his birth in what is now Boyle County, Kentucky, on June 1, 1833. The father's ambitions for his son were responsible for his naming him John Marshall, after the famous Chief Justice of the United States.

After graduating from Centre College in his hometown of Danville, Harlan studied law at Transylvania University. He received his law license in 1853 and practiced civil and criminal law several years with his father. Harlan seemed destined for politics, too. However, the Whig party evaporated following the deaths of Henry Clay and Daniel Webster. After a brief stint with the Know-Nothings, Harlan joined the ranks of the Republicans.

Harlan's family had owned slaves, though the justice would later describe slavery as a "peculiar institution." But when war broke out between the North and the South in 1861, Harlan wore Union blue and became a colonel in the U. S. Army.^X [10th Kentucky Infantry, Union Army] At the end of the war, he returned home and was elected attorney general of Kentucky. Twice he ran for governor as a Republican, but the party remained weak in the state and he was soundly defeated both times.

At the youthful age of forty-four, Harlan became the beneficiary of what was obviously a political payback. As a member of the Republican National Convention in 1876, he became a key swing vote that gave Rutherford B. Hayes the presidential nomination. A year later, President Hayes rewarded Harlan with an appointment to the U. S. Supreme Court.^X He served on the Supreme Court for almost 34 years and his opinions are published in 126 volumes of the Supreme Court Reports. He wrote 745 majority opinions, 100 concurring opinions and 316 dissents. Best known for his dissenting opinions in the area of civil rights, he was the lone dissenter in Plessy v. Ferguson^X163 U.S. 537 (1896). Declaring that "our Constitution is color-blind", he made the prophecy: "In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case."^X163 U.S. at 559.

In the Civil Rights Cases,^X 109 U.S. 3 (1883), Justice Harlan dissented from the views taken by the majority with respect to the Civil Rights Act of March 1, 1875, contending that the majority opinion proceeded "upon grounds entirely too narrow and artificial." He filed a vigorous dissent in Pollock v. Farmers' Loan and Trust Co.,^X 158 U.S. 601 (1895), in which five justices held that Congress had no power to levy an income tax. His majority opinions also were emphasized at his memorial exercises:

But if he was strong and vigorous in dissent, he was equally so in voicing the conclusions of the majority of the court. The vigorous line of opinions dealing with the power of the Federal Government over interstate commerce are the best examples of the strength of his convictions and the lucidity of his reasoning in constitutional exposition. In them the principles of Marshall's interpretation of the Constitution were fully recognized and applied. In the Lottery Case^X (188 U.S. 321), he demonstrated the proposition that legislation, under the power to regulate commerce among the several States, may sometimes properly assume the form or have the effect of prohibition, and that Congress, under this power, might prohibit the carriage of lottery tickets from one State to another.

In Minnesota v. Barber^X (136 U.S. 313), he wrote the decision holding to be unconstitutional a statute of the State of Minnesota which prohibited the sale in that State of fresh beef, veal, pork, etc., for human food, unless the animals from which taken should have been inspected within that State before being slaughtered. In a series of forceful opinions, the last of which was written at the very close of his life, he upheld the right of corporations to engage in interstate commerce without interference or restriction by state authority. These opinions illustrate the surprising freshness and vigor of Justice Harlan's mind.^X 222 U.S. xvi, xvii (1911).

Justice Harlan served as Circuit Justice for his native circuit and presided over the session of the Court of Appeals in Nashville in May, 1897, during the Tennessee Centennial Exposition, sitting with Circuit Judges William Howard Taft and Horace H. Lurton.^X [Harry Phillips, "Tennessee and the United States Court of Appeals for the Sixth Circuit." 33 Tennessee Historical Quarterly 25 (1974).] Justice Harlan and Judge Lurton fought on opposite sides in two battles of the Civil War, Harlan in the Union army and Lurton as a Confederate soldier.

He died October 14, 1911.

In the Memorial exercises following the death of Justice Harlan, Attorney General George Woodward Wickersham paid him this tribute:

He was a student and disciple of Marshall, but among living men he could lead but he could not follow. Where others agreed with his views he would march with them, but when they differed he marched alone.^X 220 U.S. xxiv (???)