John Marshall Harlan was born in 1833 into a prominent Kentucky slaveholding family and was himself a slaveholder who had opposed emancipation — then underwent a profound change of heart, becoming on the Supreme Court the fiercest judicial champion of Black civil rights of his century. A Unionist during the Civil War and a Republican politician afterward, he was named to the Court by Rutherford Hayes in 1877 and served thirty-four years, so often alone in dissent that he was called 'the Great Dissenter.'
Harlan's dissents are his monument, vindicated by history long after his death. When the Court in the Civil Rights Cases struck down the ban on racial discrimination in public accommodations, he dissented alone. When it blessed 'separate but equal' in Plessy v. Ferguson, he dissented alone again, in the most famous dissent ever written: 'Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.' He read the Fourteenth Amendment to guarantee real equality and the Bill of Rights to bind the states — positions the Court would embrace only decades later. A man of fierce conviction, said by a colleague to go 'to bed every night with one hand on the Constitution and the other on the Bible,' Harlan served until his death in 1911.
Plessy v. Ferguson
1896Holding · (Dissenting) State-mandated racial segregation violates the Constitution; 'our Constitution is color-blind, and neither knows nor tolerates classes among citizens.'
Role · Harlan was the lone dissenter.
The most celebrated dissent in the Court's history, vindicated when Brown v. Board of Education (1954, Warren §88) overruled Plessy.
Read the opinion →Civil Rights Cases
1883Holding · (Dissenting) Congress may ban racial discrimination in inns, theaters, and public conveyances under the Thirteenth and Fourteenth Amendments.
Role · Harlan dissented alone from the Court's invalidation of the Civil Rights Act of 1875.
Anticipated by eighty years the reasoning of the Civil Rights Act of 1964 and its constitutional defense.
Read the opinion →Lochner v. New York
1905Holding · (Dissenting) States may regulate working hours to protect health and safety; judges should not substitute their economic views for the legislature's.
Role · Harlan wrote a principal dissent, separate from Holmes's (§58).
A powerful early argument against 'liberty of contract,' part of the long assault on Lochnerism.
Read the opinion →John Marshall Harlan is the great dissenter — the Kentucky slaveholder who became the Court's conscience, the lone voice in Plessy v. Ferguson who wrote that 'our Constitution is color-blind,' and was proved right fifty-eight years later in Brown v. Board. He is richly served by biographers. Start with Peter Canellos's The Great Dissenter (2021), the readable modern life that tells his story alongside that of his mixed-race half-brother Robert Harlan; go deeper with the scholarly lives (Przybyszewski, Beth, Yarbrough). And read the two dissents themselves — they are the reason the rest of the shelf exists.
The Bookshelf
The readable modern life, and a bestseller for good reason. Canellos tells the improbable arc — the Kentucky slaveholding family, the Union colonel who opposed the Reconstruction amendments before he came to enforce them more fiercely than anyone, the thirty-four years of lonely dissents — and braids through it the story of Robert Harlan, the mixed-race man raised in the Harlan household who became a wealthy Black leader. The best first book on Harlan, and the one that restored him to the general public. Simon & Schuster.
The standard scholarly life — Loren Beth reads Harlan as an old-fashioned Kentucky Whig whose nationalism and moral absolutism made him the Court's lonely conscience on race. The fullest account of the whole career and law. University Press of Kentucky.
The finest intellectual biography — the book to read once Canellos has hooked you. Przybyszewski reconstructs how Harlan actually thought: the evangelical faith, the Unionism, the ideas of citizenship and race that let a former slaveholder become the Constitution's most forceful defender of Black equality. Pair it with Loren Beth's John Marshall Harlan: The Last Whig Justice (1992) and Tinsley Yarbrough's Judicial Enigma (1995), the two standard full biographies. University of North Carolina Press.
Tinsley Yarbrough's biography wrestles with the central puzzle: how a former slaveholder and Kentucky Unionist became the Supreme Court's greatest nineteenth-century champion of Black civil rights. The best book on the contradictions that made the Great Dissenter. Oxford University Press.
The first scholarly study of Harlan's jurisprudence — a Johns Hopkins monograph published four years after his death, dated in method but foundational, and still cited for its early map of the great dissents. Johns Hopkins Press.
The justice's wife's memoir, written in 1915 and lost for nearly a century until it surfaced in the Supreme Court Historical Society's journal and was published as a book with an introduction by Ruth Bader Ginsburg (§107). A warm, intimate view of the Harlan household, and a small classic in its own right. Modern Library.
Harlan's first great solo dissent. As the Court struck down the Civil Rights Act of 1875 and its ban on discrimination in public accommodations, he protested alone that the Thirteenth and Fourteenth Amendments empowered Congress to protect the freedpeople from precisely such 'badges of slavery.' The argument the country would not accept for eighty years. Free online.
The most vindicated dissent in American history. Alone against 'separate but equal,' Harlan wrote that 'our Constitution is color-blind, and neither knows nor tolerates classes among citizens' — and warned that Plessy would prove as pernicious as Dred Scott. Fifty-eight years later, Brown proved him right. Free online.
Harlan dissenting yet again, and again ahead of his time. As the Court invented the doctrine that the Constitution does not fully follow the flag to America's new island territories, Harlan insisted the Constitution binds the government everywhere it acts — the idea of governing conquered peoples 'at will and pleasure,' he warned, was 'wholly inconsistent with the spirit of our institutions.' The great dissent of the age of empire. Free online.
The canonical corrective to Harlan hagiography — the great color-blind dissenter was reliably hostile to Chinese litigants, in Plessy's own text ('a race so different from our own') and beyond. Canellos and Przybyszewski both engage it; the shelf isn't honest without it.
The Reading Path
A researched route through the literature — in order.
- 1.Canellos — for the readable modern life and the Robert Harlan story
- 2.Przybyszewski — for how the great dissenter actually thought
- 3.The Plessy dissent — for the one indispensable page — 'our Constitution is color-blind'
- 4.The Civil Rights Cases dissent — for where it all began, against Bradley's majority
- 5.Beth, The Last Whig Justice — for the standard life of the Court’s lonely conscience
Where the Papers Are Kept
The John Marshall Harlan papers are split between the Library of Congress (Manuscript Division) and the Louis D. Brandeis School of Law at the University of Louisville, which holds his personal papers, opinions, and the famous lectures — the documentary base for all four biographies. A rich archive, as befits a justice whose reputation has only grown. Visit →
Online Resources
Ideas for Further Research
- The convert. Harlan was born into a Kentucky slaveholding family, owned slaves, and opposed the Thirteenth, Fourteenth, and Fifteenth Amendments as they were adopted — then, on the Court, became their fiercest champion. The arc from slaveholder to author of 'our Constitution is color-blind' is one of the great conversions in American public life, and the heart of the Canellos and Przybyszewski books. Took David Davis's seat (§37) as Hayes's first appointee in 1877.
- The lone dissenter, vindicated. Harlan dissented alone in the Civil Rights Cases (1883, against Bradley §41) and again in Plessy v. Ferguson (1896) — the two decisions that let Jim Crow stand — and history reversed both: the Civil Rights Act of 1964 and Brown v. Board (1954) are his dissents made law. He also dissented in the income-tax cases (Pollock) and the Insular Cases. The counter-conscience of the Gilded Age Court, against the retreat of Waite §43, Bradley §41, and the Slaughter-House majority §36.
- The Harlan dynasty and the color-blind debate. His grandson and namesake, John Marshall Harlan II (§89), sat on the Warren Court — the only grandfather-grandson pair in Court history. And the 'color-blind Constitution' Harlan I coined has become one of the most contested phrases in modern law, claimed by both sides of the affirmative-action fight from Brown to SFFA v. Harvard (2023). Few justices reach further forward. Seat lineage: Davis §37 → Harlan → Pitney.