A Seminal Supreme Court Race Case Reverberates a Century Later Did a Black Half-Brother Play a Role in Justice Harlan's 'Color Blind' Dissent?

By Amelia Newcomb, writer of The Christian Science Monitor | The Christian Science Monitor, July 9, 1996 | Go to article overview

A Seminal Supreme Court Race Case Reverberates a Century Later Did a Black Half-Brother Play a Role in Justice Harlan's 'Color Blind' Dissent?


Amelia Newcomb, writer of The Christian Science Monitor, The Christian Science Monitor


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. …

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