Dissents’ Afterlives

The Supreme Court in June announced that it would revisit Fisher v. University of Texas at Austin, a challenge to the way state universities consider race and ethnicity in admitting undergraduates. A ruling is expected by this summer. In arguments or justices’ opinions, you may see referenced a dissenting opinion from more than a century ago by Justice John Marshall Harlan. For his writing and wisdom have become constitutional keystones, though they were largely ignored for decades after he died.

Dissents aren’t only the impassioned objections of the defeated side. They are, at their best, memos to the future. A former chief justice, Charles Evans Hughes, described dissent as “an appeal to the brooding spirit of the law, 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.” Dissent has allowed us to take into account developments that the founding generation could never have envisioned — a population of more than 300 million, railroads, airplanes, telephones, computers, and international relations involving not a few powers in Europe but almost 200 nations around the world.

It may take years, even decades, for the argument to win. Great dissents, says the former Stanford Law School dean Kathleen Sullivan, “lie like buried ammunition for future generations to unearth when the time comes.” Moreover, when they do explode, the effects may sometimes be totally unexpected. A good example is Harlan’s dissent in Plessy v. Ferguson (1896), the infamous case upholding racial segregation, in which he commented that “there is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

His impassioned dissents in Plessy and in the earlier Civil Rights Cases (1883) not only led to Brown v. Board of Education in 1954, but his “color blind” argument would be used even later in a manner that appalled many civil-rights advocates, as conservatives seized upon it to oppose affirmative-action plans. Can one, in fact, have both a color-blind (and, one might add, gender-blind) jurisprudence and a public policy that attempts to give preference to groups that have previously suffered great discrimination?

Although all justices dissent, the opinions of some are clearly more important than others. Students of the court are unanimous as to the influence of Oliver Wendell Holmes Jr. and Louis D. Brandeis, but the title of the first Great Dissenter belongs to Harlan, who served on the high court from 1877 to 1911. By the time he took his seat, a tradition of dissent — albeit in a small number of cases — had taken hold. Harlan greatly strengthened it.

Originally a slaveholder and a Democrat, the Kentucky-born Harlan nonetheless was a Unionist and fought for the North during the Civil War. He abandoned slavery and became a Republican, in part because of his abhorrence of the racial terrorism fostered in the South by the Democrats and the Ku Klux Klan. He came to the attention of Rutherford B. Hayes, who nominated him to the high court. The appointment dismayed some Republicans who did not believe the former slave owner held true party principles. They need not have worried. More than any other justice in the late 19th century, Harlan fervently believed in due process and equal protection for the former slaves.

The Civil Rights Act of 1875, the last of the great Reconstruction-era statutes, tried to secure by law some semblance of racial equality that could be protected by the federal government and the courts. It was not a general ban on discrimination but applied to those businesses traditionally associated with a public interest, such as inns and railways. No one expected the law to affect the widely held belief in white supremacy, but it did aim to protect the former slaves from deprivation of the minimal rights of citizenship. By then, however, the North had grown weary of the struggle and had come around to the idea that the problem of racial relations should best be left to the states where blacks lived — in the South.

In the Civil Rights Cases, eight members of the court signed onto Justice Joseph Bradley’s opinion that essentially gutted the law, and which would prevent the federal government from enacting any meaningful civil-rights legislation for the next eight decades. Bradley rejected the argument that the 14th Amendment gave the federal government any affirmative powers to prevent discrimination; rather it could only act in a remedial manner when presented with proof that states had engaged in prohibited practices. Without this state action, the federal government could do nothing. Bradley then went even further to declare that the federal government had no power to legislate against acts of private discrimination, such as the exclusion of people of color from restaurants, hotels, or theaters.

The lone dissenter, Harlan accused the majority of sacrificing the “substance and spirit of the recent amendments,” and through subtle and ingenious reasoning, denying the American people the goal it had sought, protecting the rights of all citizens. The 13th and 14th Amendments did more than merely outlaw slavery as an institution. They were designed to protect the freedmen in the full enjoyment of their rights, and not to hand over their fate to the very states that had enslaved them for more than two centuries.

Harlan’s discussion about the “badges and incidents” of slavery would not cover much of what we today think of as civil rights, such as discrimination against women, gay people, people with disabilities, and people from ethnic or racial minority groups. But his point, and a very important one, was that Congress had the power to act to protect the freedmen, and it could do so proactively and not have to wait for evidence of action by the states.

Harlan’s dissent, although warmly praised at the time, soon faded into obscurity. Justice William O. Douglas resurrected it in the 1960s in the sit-in cases, and echoed Harlan’s view that the federal government had the power to outlaw discrimination. Because the Civil Rights Cases had never been overruled — in fact had never even been challenged again — Congress relied on its powers under the Commerce Clause to justify the 1964 Civil Rights Act. When cases attacking the 1964 law came before the high court, the justices declared the 1883 decision “without precedential value,” and relied upon Harlan’s analysis to uphold the statute.

Harlan’s most famous dissent is that in Plessy v. Ferguson, in which the court upheld Louisiana’s 1890 Separate Car Law mandating the racial segregation of passengers on trains within the state. Although nowhere in the majority opinion by Justice Henry Billings Brown can the phrase “separate but equal” be found, the court’s ruling approved legally enforced segregation so long as the law did not make facilities for blacks “inferior” to those of whites.

Justice Harlan castigated the legislature for an act that penalized a citizen because he or she wanted to use public highways or common carriers. Such legislation was “inconsistent not only with equality of rights which pertain to citizenship, National and State, but with the personal liberty enjoyed by everyone in the United States.” As for the majority’s disingenuous contention that segregation did not in itself constitute discrimination, Harlan, the only member of the court with firsthand knowledge of slavery, condemned segregation statutes as “conceived in hostility to, and enacted for the purpose of, humiliating citizens of the United States of a particular race.” Such laws made any real peace between the races impossible. He then went on to assert that “our Constitution is color-blind.”

Where there had been some protest over the Civil Rights Cases, hardly anyone outside the African-American community even noticed Plessy. The nation’s interest had moved on, and attention to the plight of black citizens would languish until after World War II. Harlan’s dissents in both cases sank into obscurity. In 1949 not a single one of Harlan’s dissents in the race cases appeared in the three most widely used constitutional casebooks for law school, while Felix Frankfurter dismissed Harlan as “an eccentric exception” in his views of the 14th Amendment.

Circumstances shifted greatly over the next decades. In May 1954, a unanimous court handed down its decision in Brown v. Board of Education declaring segregation on the basis of race unconstitutional. Although not directly citing Harlan, his spirit permeates the opinion. The New York Times editorialized that Harlan’s dissent in Plessy had finally become the law. “This,” the Times wrote, “is an instance in which the voice crying in the wilderness finally becomes an expression of the people’s will and in which justice overtakes and thrusts aside a timorous expediency.”

In the decades since Brown, Harlan’s dissents have been cited dozens of times, initially to strike down any form of state action that constituted prejudice against people of color. But as the road to equality grew trickier, proposals such as affirmative action soon split both the country and the court, and Harlan’s color-blind aphorism took on new relevance.

From the very first higher-education affirmative-action case to come before the Supreme Court, DeFunis v. Odegaard (1974), the justices have split over whether the Equal Protection Clause and the 1964 Civil Rights Act permit taking race into account for the purpose of helping minorities. The liberal wing of the court, led at the time by William Brennan and Thurgood Marshall, argued that after three centuries of slavery and discrimination, racial preferences to benefit people of color were clearly acceptable.

The opponents essentially took a Harlanesque view — the Constitution is color-blind and does not recognize castes, even for benign purposes. Starting with DeFunis, followed by Regents of the University of California v. Bakke (1978) and right on down to the University of Michigan cases in 2003, at least four members of the court have consistently cited Harlan’s “color blind” as the basis for their opposition to affirmative action. Although the court grudgingly accepted classroom diversity as a compelling factor in allowing the Michigan law school to use race as an admission factor, it has strictly cabined that allowance. Although schools continue to take race into account, they do so quietly, and in many cases surreptitiously.

One might think that over a century after Plessy and its subsequent reversal in Brown, the legislative achievements of the civil-rights movement, and the election of an African-American president, the court would have no need to keep going back to Harlan’s dissents. In 2007, however, Chief Justice John Roberts invoked Harlan in two controversial cases involving resegregation of public schools. In both Louisville, Ky., and Seattle, Wash., shifting residential patterns had led to racial imbalances in the public schools. In order to avoid further segregation, both school districts had adopted pupil assignment plans that took race into account. Parents in both cities sued, and the court struck down both plans.

The chief justice declared that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Roberts especially objected to the Seattle system website in which the district declared that it had no intention “to hold onto unsuccessful concepts such as a … colorblind mentality.” In reply to which Roberts cited Harlan. For Roberts, along with Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, the only standard that should apply would be that of a color-blind Constitution. Justice Thomas was unusually outspoken as he wrapped himself in the Harlan dissent, and declared it the “Bible” that Thurgood Marshall clung to in his long fight against segregation.

There is a certain irony here that Harlan’s dissent against segregation is being used, it would seem, to permit resegregation of schools. But here, and in the debate over affirmative action, both in the university and in the job market, there is an important public-policy question about which the country is deeply divided. Many people see affirmative action as the only way to somehow level the playing field for people of color, women, the disabled, and other groups who have suffered from poverty, poor education, and tacit if not overt barriers to admission into certain jobs or schools. Others see the issue as a zero-sum game: If one person or certain groups receive preference, other individuals and groups will lose. There are only so many seats in the entering class of a medical school or an apprenticeship program or a management track in a large business.

The earlier apartheid, however, had been mandated by the state, and to Harlan that clearly ran against the command of the 14th Amendment. In the 21st century he might well say that the Constitution protects legal, not social or economic, rights. Carried to a logical end, a color-blind Constitution would not allow racial classification even for benign purposes. Harlan probably did not consider that when he wrote, but his argument has continued to be part of the constitutional dialogue on race, even as our understanding of race continues to change.

As a final note on Harlan’s dissent, and the way it can lie like “buried ammunition,” consider the first breakthrough case for gay rights, Romer v. Evans (1996). The case challenged a Colorado referendum that nullified various laws prohibiting discrimination against gays in housing, employment, and other areas. Justice Anthony Kennedy began his opinion by declaring, “One century ago, the first Justice Harlan admonished this Court that the Constitution ‘neither knows nor tolerates classes among citizens.’ Unheeded then, those words are now understood to state a commitment to the law’s neutrality where the rights of persons are at stake.” Kennedy noted that Harlan’s admonishment was a dissenting opinion, but treated it as an authoritative statement of the law. In his dissent, Justice Scalia did not object to the authority of the Harlan dissent, but to Kennedy’s spreading its mantle over a new group.

As the court takes up Fisher v. University of Texas at Austin once more, Justice Harlan’s dissent in Plessy may well echo again, but by whom and how interpreted? Legal reasoning sometimes ricochets in unexpected ways.

Melvin I. Urofsky is a professor emeritus of history at Virginia Commonwealth University. His book Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue is just out from Pantheon Books.