Advisory Opinions - Peter Canellos Talks The Great Dissenter

Episode Date: July 8, 2021

After some brief thoughts about Trump’s lawsuits against Facebook, Twitter, and Google, Sarah and David chat with a special guest: Peter Canellos, editor at large at Politico and the author of a new biography of Justice John Marshall Harlan. Tune in to hear Canellos share some of his research on a man whom he describes as “America’s judicial hero,” a justice who went from Southern slave owner to staunch segregation opponent. Our hosts ask Canellos about Harlan’s famous dissent in Plessy v. Ferguson and what Harlan’s legacy means for the country today. Show Notes: -Trump’s lawsuit against Twitter -The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to a special edition of the Advisory Opinions Podcast. This is David French with Sarah Isger, as always, but we have a guest. We have a guest, and this is a great conversation that's about to follow. It's with Peter Kanellis from Politico, who wrote a book called The Great Dissenter, the story of John Marshall Harlan. And it's not just a story of a Supreme Court justice. It's a story of a time in American history, a moment in American history, and somebody who stood alone at a really critical point in American history, alone and right. And it's a really good, it's a great book. It's a good discussion. And the book, Sarah, is number one in one of the top three coolest

subgenres in Amazon. Yeah? Yeah. It's number one in biographies of lawyers and judges. Well, David, when I was first coming to the dispatch, I published a list of my seven recommended books to read if you were tired of hearing about impeachment. And they're sort of my seven like page turning go to books. And I got to tell you, this one has rocketed to the top of my list. You know, I've recommended Destiny of the Republic to people. The story of James Garfield by Candace Millard and like, woo, this has given it a run for its money. The Great Dissenter, so good. Yeah, yeah, it's fantastic.

It's fantastic. Wholeheartedly endorse. But before we get to that conversation, we have a lawsuit. No, we have lawsuits filed against Facebook, Twitter. Has the YouTube suit also been filed? We were expecting the YouTube suit, but I haven't actually seen also been filed? We were expecting the YouTube suit, but I haven't actually seen it yet.

I haven't seen the YouTube suit. Donald Trump has sued Facebook and he sued Twitter, claiming that they violated his First Amendment rights. Okay. So, Sarah. Sarah has done research on this and I'm going to allow... there's no allow to it.

Like Sarah's going to do what Sarah's going to do. Sarah, Sarah's going to explain how there is a legal theory behind this lawsuit. Um, and I, I am very, I, I too have done research.

I think that you're less scornful than I am, but I shall hold my scorn until I hear your assessment. Okay, so David, look, you and I are going to end up in the same place. This lawsuit will not succeed. However, you know, there's a lot of people who sit on Twitter

and are like, ugh, these are private actors. They can't violate your First Amendment rights. Ha ha ha ha. And I just want to nuance that a little. Yes, it will turn out that Facebook and Twitter are not government actors. They cannot violate your First Amendment rights. But it is possible for private entities to be treated like state actors under the law. In fact, let's see, in the Wall Street Journal, January 11th, 2021, this whole lawsuit is based on basically this legal theory in this op-ed called Save the Constitution from Big Tech. Congressional threats and inducements make Twitter and Facebook censorship a free speech violation. It was written by Vivek Ramaswamy and Jed Rubenfeld. Professor Rubenfeld is a Yale law professor married to Amy Chua, by the way, David, who we've talked about on this pod.

And what they're saying is because Congress and various politicians have threatened, and various politicians have threatened, cajoled, criticized, et cetera, Facebook and Twitter, that could transform them into state actors. And I was curious about this theory. So I did some research on the test for whether a private entity has been transformed in any way into a state actor. It's a four part, four ways in which that can happen, David. Ownership and operation. So sure, it's, I mean, obviously if it's owned by the state, you know, the state does sometimes own private entities, private businesses, if you will, obviously that would transform it into a state actor or it's a private entity being run by the state. Yeah, for sure. Two, when the private actor's activity is an exclusive state function,

i.e. you don't get to get around constitutional rights because it's a private prison, for instance, or if you hire a private police department, like that would be real cute, but nope, Fourth Amendment would still apply. I'm going to skip to number four real quick, joint enterprise. That looks at whether there is so much entanglement and interdependence with the state as to form a symbiotic relationship. There was this sort of company town situation where literally the private entity's proceeds were what was paying for the state's actions, and that was so interdependent that they found that the private entity in that case was transformed into a state actor.

Okay, but number three, David, here's the one in question. Whether the state has coerced the action. So yes, this can exist, but the test is incredibly hard to meet. The standard is high. Approval of the action is not enough. Regulation of the action is not enough. The coercion has to be so complete as to be basically compelled by the state, as in the state ordered the action. The idea, and this is where, David, you and I are going to come together in the end, the idea that by criticizing an industry or even a specific company for doing something or not doing something would transform them into a state actor would transform all of corporate America nearly into a state actor. be criticism. It could also be approval and praise. So, I mean, everything. There's very few areas of our economy that politicians don't have opinions on. So that test under coercion is like coercion, not, hey, if you don't get this stuff under control, we're going to regulate you,

but then there's no real there there. It is a true coercive test. That being said, you are that test can be met this. So I think people should be less eye roll about the First Amendment argument in this case and instead actually meet this lawsuit where it is, which is one. This is a press release lawsuit. It's a class action, first of all, that the president used to host a press conference and send out fundraising emails, I think, to try to get attention away from Florida Governor Ron DeSantis. And two, the lawsuit will lose because they're nowhere close to meeting the coercion test. And the way I know that is because they don't really even plead it well or much at all.

It's very vague. I don't think they could possibly get past a motion to dismiss. And just to do a quick footnote, motion to dismiss, that's on the law, as in you didn't even plead what you needed to to legally be sufficient. Motion for summary judgment is the law and the facts. The facts don't meet the standard, basically, to win on the law. I don't think they'd get past just the legal part, let alone if they ever made it to a motion for summary judgment. There's also been some discussion, it to a motion for summary judgment. There's also been some discussion, which I, of course,

made the mistake of wading into it all, that, oh, Donald Trump has opened himself up to being deposed about January 6th. And I said, yes, depositions and discovery if they get passed a motion to dismiss. First of all, Facebook's obviously going to file a motion to dismiss, although some question of whether this is actually going to get decided on the injunction grounds. Preliminary injunction, sort of like a motion to dismiss, except it's even harder to meet this because you have to have a likelihood of success on the merits, which they certainly do not have that. But regardless, they'd have to get past the PI stage, past the motion to dismiss stage, and then, yes, for sure, he would be deposed about January 6th. And all these people are like,

Harvard lawyer hasn't heard about scope of discovery. Oh, my God. Yes, I have. The difference is I've read the lawsuit, and yes, he would be deposed about January 6th because that's actually what this largely turns on or his actions on that day and whether he was, you know, suborning violence, et cetera.

And then I did see one person note, a lawyer in Florida, that actually in Florida, you may not even have to wait to the motion to dismiss to get the deposition. Regardless, Facebook, Twitter, these guys are going to want this out of the way. But I'm more interested

david florida has an anti-slap uh law with their motion to dismiss they could file an anti-slap motion for attorneys fees and costs uh that i am interested to see if they do that would be very interesting that was great sarah that was great. That was fantastic. And true advisory opinions, flagship podcast, dispatch podcast style, walking through the law in a way that is, I think that's fantastic. And one thing that I did see right away, when you read the lawsuit, you could see immediately people were mischaracterizing it, that he was claiming essentially that, because there have been lawsuits that have claimed that YouTube, for example, is the government

in the sense of the company town type cases that you talked about. That's not what this lawsuit is claiming. No, they're claiming the coercion test. Yeah, they're claiming the coercion test. And it's wildly inadequate. Yes. Wildly inadequate.

And if you kind of adopted their reasoning, because part of their reasoning is Section 230 itself renders Facebook and Twitter a government actor. And no, because that would make us a government actor, Sarah, when we moderate the comments at the dispatch. So, like, I've warned a couple of people about some of their comments in the dispatch comment section because we really like to preserve the kind of community that we're building here. And under that theory,

I've menaced somebody's First Amendment rights. No, no, no, no, no, no. And you're a government actor. Congratulations. I know. I know. But watch this space. There's also an interesting issue.

The terms of service with Facebook require lawsuits against Facebook to be filed in California. So this lawsuit was filed in Florida. Yeah. So after you would get past the motion to dismiss, if they lost that, then I think they'd file their forum non-convenience and try to move to California probably. And I think they probably win that not just because of the terms of service, but also because why is this filed in Florida? You know, they would have an argument that that's where their base is and that that's where the decision

itself was made. Right, right. So anyway, we'll keep watching this case as we watch all the big tech cases that are percolating out there. And before we move on to our interview, also, I am aware a lot of you guys have emailed me the same legal complaint, a lawsuit filed in Illinois regarding critical race theory. We're going to talk about it, but we're going to talk about it next week. And we're going to talk about it in a different... We'll talk about it next week because we've got a lot to cover with the book. And that lawsuit requires a longer discussion than we can give you right now. So I've heard you. I've seen the lawsuit. I even linked to it in the New York Times op-ed I jointly authored. So I am

tracking it. But now, Sarah, shall we move on to our interview? So we have known about this special treat for a couple months now, many months now. And I got to tell you guys, I've been looking forward to it. I mean, day by day by day, episode by episode. And it is here. It has arrived. Today, we are finally talking to Peter Kanellis about his incredible book on John Marshall Harland, The Great Dissenter. Peter actually is a reporter. He came from the Boston Globe. He's now the executive editor of Politico. And this book is not really for lawyers. I think I would say at the end, it's split into two parts. The first part is really the story of John Marshall Harlan before he ever gets to the Supreme court. And it's told in a fascinating way where you bounce between him and Robert James Harlan, who I'm going to let Peter introduce us to him as a, as a character.

And the second half of the book is about his tenure on the Supreme Court. I think, you know, I always knew the subject matter, of course, would be of special interest to me. You know, Judge Willett, our friend of the pod, judge on the Fifth Circuit, he named his dog after John Marshall Harlan. It is his special favorite justice to ever sit on the Supreme Court, as he is for many people. And we'll get into why that is as well. But I think what struck me most about this book is that it speaks to the moment that our country is in right now in such a poignant way. I'm curious whether you think that's simply John Marshall Harlan's story or your retelling of it. And with that, why don't

you sort of tell us, give us your top level on the book, and then I want to dive in. Well, thank you. Thank you both so much. It's an honor to be on your podcast, and I'm very excited to talk about Justice Harlan, obviously. This book was not planned with any particular moment in mind. It's been in the works for a long time. It certainly has been gestating in my mind for a long time. It goes back to when I myself was in law school at Columbia 30 years ago and read some of John Marshall Harlan's dissents that really kind of leaped off the page. You know, studying law can be a bit of a dry task sometimes. You're sort of,

you know, searching through these opinions, trying to find holdings and things like that. And then, you know, here was somebody who was forthright, informative, seemed to be answering to a higher sense of justice and was very articulate. And obviously what stood out was that he was completely at odds with his colleagues on a whole range of cases where it's most famous for the race cases, the cases that took away the rights of African-Americans. But he was as much a great dissenter on other matters as well, economic matters, which obviously were front and center during the Gilded Age when he was serving on the Supreme Court. So I think the fact to the way that he strongly identified with American destiny and was deeply in touch with what he considered sort of core American values,

what was articulated in the Declaration of Independence and the Constitution. He grew up in an atmosphere of American exceptionalism and was an arch believer in American exceptionalism. So. Those are universal beliefs. And, you know, today, some of the tensions that that were prevalent in Harlan's time, certainly along racial lines and diversity lines and immigration lines, but also economic lines that are still very much at front and center in our minds. So I think this is a book of the moment, but it's probably a book of all moments in some ways, because I think of Harlan as a truly distinctive figure. So you bounce between what John Marshall Harlan's doing, and then you'll spend a few paragraphs on what Robert

James Harlan is doing. Why don't you tell us who Robert James Harlan is? Well, Robert Harlan was born in Virginia, and he was 16 years older than John Marshall Harlan. When Robert was eight, he and his mother undertook a journey from Virginia to Kentucky. They went to Harlan Station. This much is all known because Robert Harlan became relatively famous later in life, and there were newspaper profiles that were done of him. Some of those profiles said he was going to Harlan's station to find his father, discovered that his father was dead. But then through means that were never completely explained, he ended up owned by James Harlan, who was 24 years old at that time,

and the father of John Marshall Harlan, the future father of John Marshall Harlan. While his mother ended up being sold down to Louisiana, other accounts just straightforwardly say that James Harlan was his father. If so, it would have been when James was only 16 years old, but he did have relatives in the place where Robert was born. His mother's family was from where Robert was born and he had visited that place. So it's plausible and, in fact, was thought to be very likely in his time that James was the father. In any case, James took a very special interest in Robert. And by all accounts, Robert was a prodigy.

And James tried to educate Robert. And by all accounts, Robert was a prodigy. And James tried to educate Robert, but because he was half African-American, he was not allowed into schools. Paradoxically, that liberated him to do some things that the white children in the family, James Harlan's white sons, were not able to do. James Harlan was a lawyer known as the greatest lawyer in Kentucky, had the largest private law library in the state. He wanted his sons all to be lawyers, and that's a great vision, but it also requires a lot of discipline for the kids. Robert Harlan was able to do things like go out and become a horse racing pioneer, Hartland was able to do things like go out and become a horse racing pioneer, traveling the state, running races. This was one area where African-Americans were able to play a substantive

role in Kentucky because a lot of the original horse owners were slave owners. And so enslaved men were jockeys and trainers. Robert had a sort of special status where he was enslaved, jockeys and trainers. Robert had a sort of special status where he was enslaved, but given all kinds of privileges and treated more like a member of the family. But he, you know, he was able to take advantage of that to really become a noteworthy horse racing pioneer. That's something that was recognized throughout his life. He then went on to find other opportunities, like in the gold rush. You know, these are places where racism hadn't taken hold yet. He became wealthy in the gold rush probably by selling supplies, which were then marked up, you know, 10 and 20 times in that frenzied atmosphere.

And he had run a store before then. So he's a great entrepreneurial thinker. And to get to the gold rush in 1849, you know, you had to go through the jungles of Panama and then you had to take this perilous journey up to San Francisco. And so he's a real adventurer, but came back, you know, with a proverbial chest full of gold, and used his fortune, he moved to Cincinnati, which was the terminus of the Underground Railroad at that time, and used the money to invest in businesses, many of them by African Americans who had come out of slavery and, you know, everything, invested in everything from a grocery store to photography studios, which was another

brand new technology where, you know, racial divisions had yet to take hold and African-Americans were given a chance to succeed in the new technology. Then he, with his entrepreneurial spirit, he took horses to Europe to race in sort of a transatlantic kind of battle of the countries, you know, can American horses beat British horses? So he had a great showman sense and became kind of a famous person in Europe as well. And then returned after the Civil War to become the leading black politician in Ohio, which was the most important state for presidential politics. So Robert Harlan had this amazing life and spent the last 30 years of it as a really substantive leader of the African-American

community and somebody with national context, a friend of Ulysses Grant's and Rutherford Hayes's. And he played a role in helping John Marshall Harlan gain the credibility to get on the Supreme Court, because as a Kentuckian, after the Civil War, John Marshall Harlan was held in suspicion by Northerners because he had been from a slave-owning family and things. So here you have Robert Harlan in this unique position to vouch for him, having grown up in the same home. So that's who Robert Harlan was. And when you ask why I focus so much on him in the book, it's partly because of his role and his influence on John Marshall Harlan and on Harlan's views on race, but also because the trajectory of

Robert Harlan's life shows that in places and times when equal rights were enforced, that in places and times when equal rights were enforced, including the first 12 years after the Civil War, a man like Robert Harlan could be a huge success. You know, he drank fully of American freedom. After the Supreme Court started backing away from protecting Black rights, starting in 1883, and after the nation did, starting even earlier, his life changed. He faced more racism. He and his descendants, who continued to be highly educated lawyers, many of them, couldn't earn any money because they were limited to Black clients, so there was no money in the Black community. So his life and that of his descendants are an illustration of the cost of some of the Supreme

Court decisions that John Marshall Harlan was fighting against in Washington. So I felt like it added sort of real world perspective and texture to how Supreme Court decisions affect people on the ground. So one of the things, interesting aspects of the book and John Marshall Harlan's story is the location. And I have a parochial interest in this. I was born in Alabama, but mostly raised in Kentucky. Consider myself a Kentuckian. There's an interesting way in which the place that John Marshall Harlan comes from is instrumental in so much of this story.

And I found that fascinating. If you could kind of talk about the unique position and status of Kentucky and the influence perhaps that had on Harlan. I think it almost explains everything about Harlan because he grew up in what was in sort of the best sense, an aristocratic culture. Kentucky had originally been part of Virginia and Kentuckians sort of wanted to take what they considered the best parts of sort of the Virginia aristocracy, which is the, you know, aspiring to national leadership, the sense of connection to

the nation's founding. And the leading families of Kentucky, you know, the Clays, the Crittendons, the Breckenridges, and the Harlins, really believed in this. Another reason they believed in it was because they could see the Civil War coming. And they knew that Kentucky was in a unique position, not just because of its geography as a border state, although they were very concerned early on that it would be the real battleground. You know, if there was a war between North and South, Kentucky geographically stood to be destroyed. But also because they knew that the internal culture of Kentucky included, you know, pretty much 50-50 support between the North and South and that, and that, you know,

the entire state's civic fabric would be destroyed, which it was. But, but for John Marshall, who was born in 1833, every minute of this childhood where his father and other teachers are teaching him, you know, the great he was named after the great John Marshall, you know, who asserted the rule of law over politics. Henry Clay was a family friend and a huge influence on the Harlan family. every minute they were trying to craft compromises that in their mind would put slavery on a path longer term to abolition, but would recognize the current day economic interests of slave owners and slaveholders. That was the life that he was living. It all fell apart, and it all fell apart partly because the Supreme Court in the Dred Scott decision tried to tie everything up neatly by simply declaring that black people, even free blacks, had no rights under the Constitution. I mean, not only was that an incorrect decision based on the facts and the history and also a moral abomination, but it also foreclosed any chance for compromise. So Harlan recognized the power of the Supreme Court in affecting American life. I think that when that case came down,

Dred Scott came down, he recognized that war was coming. He fought hard for the union, both politically and on the battlefield. So he came out of the Civil War feeling that after a certain period of time, you could not keep troops in the South for a long time. And he learned that from Kentucky, too. You know, he had fought to win the hearts and minds of his neighbors, to keep them in the Union, telling them that they would be able to control their own destiny after the war. And then the government, Lincoln and Andrew Johnson, put rather, you know, brutal military commanders in charge of Kentucky. And the state felt itself almost to be occupied territory. I think that led him to believe that the notion of keeping troops in the

South indefinitely was not something that was going to work for the United States. But he felt that the courts should step in and strongly enforce the post-Civil War amendments and enforce equality and stand up for African-American rights in a way that would provide legal protection where, you know, physical military protection had once existed. That was a very different conclusion than all the other justices on the Supreme Court, who essentially felt like the only way to have peace with the South is to give in on African-American rights, to endorse segregation, to let everything exist in separate communities. So his vision was very distinct and very different. Kentucky also played a major role in his view of economic cases. People in what was then still thought of as to some degree as a

frontier had a very different economic system in the Northeast, and they felt themselves to be very much under the thumb of Northeastern moneyed interests. They also felt that things like the tariff system which funded the government worked against them, even if it helped Northeastern businessmen. So, you know, when economic issues were front and center in the country as they were during the Gilded Age, Harlan was looking at it from a very different perspective because of his time in Kentucky. One of the things that I've complained about on this podcast, David and I were asked which cases we would include in an AP government course. And, you know, basically what they teach

right now is you just sort of bounce through all these big cases you know you'll go from Dred Scott to Tinker to Citizens United or something right and the through line is like you're in a hot air balloon sitting over the Supreme Court and you just sort of watch these big cases come down and you know you find out who's in the majority and the dissent and that's nice I think it is the least helpful way to study history. And the thing that I loved about this book and that I think is so wildly great, if you are, even if you think you are not interested in, let's call it 1840 to the turn of the century American politics, that's because you learned it wrong. You went from the Whig Party disappears, the Republican Party pops up, the Civil War

happens, Reconstruction ends, the Gilded Age, the trust busting. That's a terrible way to learn history because I think you show the correct way here, which is, so my Twitter handle is Whig Newtons after the Whig political party. And by following John Marshall Harlan's story, and Robert Harlan's for that matter, you get to walk through all of these moments in history, but with them, not from the hot air balloon watching above, but actually experiencing someone's decision-making. And I want you to talk a little bit about his political home or homelessness, as it were. You know, he's born to a family of Whigs.

Henry Clay, as you said, family friend, the great compromiser. But Henry Clay is coming to the end of his life, and so is the Whig Party. And so how, you know, walk through how John Marshall Harlan actually, I don't, I think, would you agree he never really finds a political home that's comfortable for him? I think he found a home with the Republicans. I think he was a true believer in the Republican position in the 1870s. People distrusted it, position in the 1870s. People distrusted it, but I think he believed it. It was a matter of conversion, though. He had a very torturous political path, but so did a lot of people

in his era. He started as a Whig and a very dedicated member of the Whig Party, along with other prominent Kentuckians. He was an adherent of Henry Clay, who was front and center of the Whig Party. The Whig Party believed in a national destiny for the United States and sort of stood in opposition to the idea of states' rights. It tried to craft a national solution to the slavery crisis, one that they felt would be consistent with American values. But as time went on and divisions hardened, it became harder and harder for the Whig Party to articulate a cohesive vision for slavery, division for slavery, one that could embrace, you know, people who wanted eventual abolition, but also people who are getting more and more defensive in the South of this institution.

So eventually the party disintegrated and ceased to be a national power. What followed in Kentucky was a series of smaller parties that were meant to be kind of offshoots of the Whigs. One was called the Union Party, another was called the Constitutional Union Party. And the Harlins would sort of gravitate towards these various parties and in some cases, in John Marshall Harlin's case, even run for office under some of those banners. But they were never close to a national force. Then came the so-called American Party, which took over a lot of the energy that the Whigs had. This party, which was known as the Know-Nothings, was known nationally for its skepticism about immigration. And in some cases, it's very virulent, demagogic rhetoric about immigrants. That wasn't entirely the case in Harlan's experience, although there were others in Kentucky who fully embraced the anti-immigrant aspect.

And there was even a terrible riot and deadly riot in Louisville over immigration. riot in Louisville over immigration. But the evidence is that the Harlan family sort of took over this party because it shared the sort of Whig perspective on slavery. And in Harlan's speeches, he would sometimes, you know, endorse some skepticism about immigration and, you know, skepticism about immigration and delays on people becoming naturalized citizens, but was fairly moderate on those issues. And later in life, when he was confronted with the legacy of the know-nothings, he very strongly repudiated it. He even went to the point of blaming his father for pushing him into the party, which is a very rather shocking display of disloyalty to a man who really worshipped his father. But the Republicans by 1856, 1856, they have a candidate. 1860, they win. He is not a Republican for a long time.

Why is he rejecting the Republican Party at the same time? Well, the Republican Party had less than 5% support in Kentucky. So Republicans were widely viewed in Kentucky as being an abolitionist party. I think that abolition was never officially their position, but they were perceived that way strongly in Kentucky. So the Republicans never really had a foothold in Kentucky. You know, Harlan was very public. He was out there on the campaign trail. There were times when he criticized the Republican Party or tried to talk about a middle ground between the states' rights Democrats and the Republicans favoring abolition. And, you know, to today's eyes, that looks like a really disreputable kind of compromise on his part. And I think he came to view it somewhat that way. But in the context of the times, if you were going to be politically

viable in Kentucky, the Republican Party was really just a tiny minority associated with the abolitionist movement. So, you know, Harlan attempted to preserve Kentucky's standing in the union and build support for the union, which, again, some historians may argue actually did more for the abolitionist cause by keeping Kentucky out of the Confederacy. But rhetorically, he was not an abolitionist. Uh, and then because of that intense effort to keep Kentucky in the union in which he was literally standing on the street corners of Louisville with, uh, the Speed brothers who were Abraham Lincoln's best friends, you know, the three of them working together, James and Joshua Speed and, and Harlan, uh, they had bullhorns in their mouths, uh, and they were, they were bullhorns in their mouths and they were preaching

union, union, union, and promising that the Lincoln administration was going to respect Kentucky's special status as an independent. And the governor of Kentucky at the time, Bariah McGaughan, was a Confederate sympathizer. So they had to go through all these torturous manipulations and negotiations, fighting on every level from the newspaper editorials to shipping in guns to loyalists to, you know, in case violence broke out and to repel, you know, the very real fear of a Confederate invasion. So he went through this intense experience and promised people, his friends, his neighbors, his supporters, that the Union would back Kentucky. Then after the Civil War, in which he fought and fought nobly, saw action, suffered along with all

the other veterans, but was a colonel and was up to being a general when his father suddenly died and he felt a family need to leave the military in 1863. He then felt that the federal government somewhat betrayed Kentucky by putting brutal military commanders in charge and treating Kentucky like a conquered territory. So he then was in the political wilderness for several years after that because he actually opposed the post Civil War amendments initially because he felt like the 13th Amendment banning slavery was violating that agreement with Kentucky that Kentucky could control its own destiny. Very quickly, though, after those couple of years,

he underwent a serious conversion. And he always presented it as a real conversion of conscience. And he gave speeches where suddenly he began to refer to slavery as the greatest despotism that ever existed. He spoke of, you know, he would repeatedly say, you know, thank God the sun is shining on a nation of freedom. You know, he fully embraced the Republican of that time connection to the founding documents, the belief that the Civil War had brought about a true new birth of freedom. And he was very powerful in his speeches, both in Kentucky when he was running for office, when these speeches were not necessarily popular, and also nationally because he was known as a great orator and he would sometimes make

national speaking tours as well, which also helped to raise his profile. Nonetheless, by 1876, when he's promoting the candidacy of his fellow Kentuckian, Benjamin Bristow, for president, many people held him and Bristow, but especially Harlan, in suspicion because he had come from a slave-owning family. He had opposed the 13th, 14th, and 15th Amendments initially. Then he turned around and embraced them so fully. A lot of people saw expediency in that. They felt like, you know, is this really a conversion of conscience or a conversion of, you know, political necessity? Harlan insisted it was conscience. Robert Harlan backed him up.

The Speed brothers, with their credibility from being connected to Lincoln, also backed him up. But there was tremendous skepticism among Northern Republicans. In 1876, he was the campaign manager for Bristow and controlled the Bristow delegation at the Republican convention in Cincinnati, where he also incidentally worked with Robert Harlan, who also was very politically powerful at that moment. At a key moment, Harlan turned around and delivered Bristow's votes to a compromise candidate, Rutherford B. Hayes. He had feared that James Blaine, the Speaker of the House who had a reputation for corruption, would become the nominee of the Republican Party and would lose to the Democrats. They felt they would have a better shot with a clean candidate. Bristow was thought to be a clean candidate, but didn't amass the popular support. They then

compromised by throwing Bristow's support to Rutherford Hayes, the former governor of Ohio, which earned Harlan a chit that could be delivered if Hayes became president. As we know now, you know, the election of 1876 was disputed, and part of the compromise that led to Hayes becoming president was a series of concessions to the South. One of them that was sort of unwritten, but that Hayes himself had mentioned, was appointing a Southerner to the Supreme Court. Nonetheless, the Judiciary Committee was still controlled by Northern Republicans, many of them progressives, many of them distrustful of all Southerners. So Harlan had to face a tremendous gauntlet,

first of all, to have the credibility to win the nomination, but then to win confirmation. And again, that's where his relationship with Robert Harlan, his relationship with the Speed brothers, the number of Kentuckians who swore that his conversion to the Republican Party was sincere, his conversion to the Republican Party was sincere, that barely carried the day in Congress. But I do believe that it was a sincere conversion because his subsequent career reflected the values of the Republican Party in the 1870s. And he always insisted that it was a sincere conversion. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation

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Terms and conditions apply. So let's move to sort of the, you know, that he wrote many things, he did many things. But, you know, if you're going to remember him for this single thing, it's the dissent in Plessy. And this is the moment where he says no. and the court is saying yes to segregation, and he says no. And could you kind of walk through his dissent and how he thought about it and how he talked about that dissent in his life and in his career? in his life and in his career. I'm fascinated by this. I'm fascinated by all the characters,

individuals of that time, who really sort of zigged when everyone else around them was zagging. For example, I'm always fascinated by General George Henry Thomas, the Rock of Chickamauga, the Virginian who stayed in the Union and fought the Confederacy. This is one of those moments

where Harlan stood. This is his moment. And if you could kind of talk us through it, I think, the context of this, it's really an important, courageous moment in American history. I believe that. And I believe that his dissent in Plessy v. Ferguson is one of the great documents of American history. If you look in the entire history of the Supreme Court, you know, which opinion comes closest to being a statement of purpose for the law, I think it's Harlan's dissent in Plessy v. Ferguson. It's full of memorable lines. It includes the Constitution is colorblind and neither knows nor tolerates classes among citizens. There is no caste here. The humblest is the peer of the most powerful. and have come to represent for many people the sort of the true intention of the Constitution,

but especially the amendments after the Civil War. It's all the more poignant because it was in such a, what was then thought to be such a lost cause. There was no question in white America about how the Supreme Court was going to rule in Plessy v. Ferguson. In fact, there was a little question in black America. By then, many black leaders opposed even bringing this case because they feared that only bad things could come from it, and they were right. And I think some of that sense of despair comes through in Harlan's dissent in Plessy. I actually believe that his dissent in the civil rights cases of 1883, which was when he first began standing up for African-American rights, and it was also his first major dissent, the first time he really broke with his colleagues. That, in many ways,

is a more legally significant dissent in the sense that he's offering a very specific set of interpretations of the 13th and 14th Amendments that were at odds with Justice Bradley's opinion, which invalidated the Civil Rights Act of 1875. The dissent in the civil rights cases of 1883 is a long manifesto, but it's sort of powerful in the sense of articulating a different vision for the law, but it doesn't have the high points that his dissent in Plessy did. It didn't have the sort of transcendent commentary and memorable lines that it had in Plessy, although it was pretty great in its own regard. But I think that there was a big difference between 1893 and 1896. In 1893, it was a real question, you know, would America continue to enforce civil rights? And the

answer came down as a thunderous no. By 1896, Harlan was deeply frustrated. I mean, he had seen what happened across the country. He'd seen the rise of the Ku Klux Klan, the way it especially sort of destroyed the political fabric of Kentucky. He understood that the other justices were essentially making a sort of corrupt compromise with the South. A lot of them, they were all Northerners. A lot of them had almost no connection at all to Black people. They had supported abolition, but never actually met a Black person. And they fell prey to a certain feeling, both either that African-Americans were inferior

or that freed slaves had been so degraded by their position in the South that they weren't ready to experience American freedoms. He knew how wrong that was. He also knew that the court was essentially lying in Plessy v. Ferguson. You know, they tried to present this Louisiana separate car law, you know, separate cars for each race on trains as being, you know, a reasonable health and safety measure that, you know, had no racial implications. Everyone was treated equally here, you know, a reasonable health and safety measure that, you know, had no racial implications. Everyone was treated equally here. You know, Harlan in his dissent, you know, calls them out very forcefully. He says no one would be so wanting in candor as to say that this is

anything but an attempt to separate African Americans. And I think some of that disgust, that feeling that this institution that he revered, the Supreme Court, had so, you know, soiled its reputation with this abomination of a decision. I think that that anger, that sense of violation, that the sense that that all of America would suffer from this and that that American values had been degraded by this decision. All of that comes through in this very powerful dissent in Plessy v. Ferguson. It also, even though Plessy v. Ferguson got very little attention, even in Louisiana, it didn't even merit its own headline in some newspapers, it was so much thought to be a foregone conclusion. But it mattered for future generations, and it mattered primarily because the African

American community recognized and revered Harlan's dissents. When Harlan died in 1911, there were spontaneous memorial services across the country, even in cities that Harlan had never visited, where African American churches got together to pray for the soul of the one man they felt had stood up for their rights and values, the one person who saw things through their eyes. There were three of those spontaneous services in Washington that we can account for, followed by a joint service a few weeks later at Washington's Metropolitan AME, where Harlan's dissents were read aloud to a younger generation of African Americans. So in the Black community, in Black newspapers, in Black churches, Harlan's words had deep meaning

and resonance. And so when 30 and 40 years after Harlan's death, Thurgood Marshall, Constance Baker Motley, other pioneering black attorneys started recruiting plaintiffs to challenge segregation. This at a time when the plaintiffs knew that they would be subject to the most violent racism that the Ku Klux Klan was watching. Surgut Marshall was able to use Harlan's words to help persuade people that it was possible to overturn segregation, that at least one white person saw things the way that they did and made a very powerful case for how it violated core American principles. And Thurgood Marshall was a great Harlan admirer. Constance Baker Motley was a great Harlan admirer.

Harlan's words from his Plessy dissent were included in all of their briefs challenging segregation, including the NAWACP Legal Defense Fund brief in Brown v. Board of Education, which really carried the day in terms of overturning segregation. So I think this is the most powerful illustration of a dissenting opinion, not just helping to provide a legal pathway to reversing the decision, but really inspiring people to do so and helping keep faith alive. I think it's also an important moment in American history because the fact that one leader in the white community was saying no to this abomination of a decision and helping African-Americans to keep the faith made a contribution to civic life. It probably kept a lot of African-Americans believing in the

system. And it helped to inspire people and to, you know, communicate, as we were saying before, the core meaning of the post-war amendments to the constitution and, and the core meaning of the American experiment. So I think, I think Harlan, who was so deeply in touch with that sense of American exceptionalism and that belief in the American, uh, uh, experiment, um, I think he knew that he was keeping a flame alive. And he did. And that's why, as you said, David, that Plessy dissent has been his most famous contribution to American life. But it's certainly not the only one. How do we grapple with a legacy like john marshall harland's in our current political climate you know we have schools being renamed um you know people sort of questioning

lincoln's legacy as someone who was not an abolitionist for instance and we're talking about a man who came from a family of slave owners, was vehemently against abolition, was against the Emancipation Proclamation, was against the 13th Amendment, like you said, and goes on to be a hero in the law standing a fort. How do we deal with people like this in history? And why do you think it is that we don't have, you know, that John Marshall Harlan isn't a famous name to schoolchildren the way that a Lincoln is or a Grant? Well, that's a fascinating question. I'll sort of address it in two parts.

In the first part about why today people are questioning Lincoln's legacy or Harlan's legacy and things. I think that people sometimes fail to see the full arc of the story. And if you look at sort of a snapshot of somebody's life, you can find things that are objectionable. You can find decisions that could have gone a different way and should have gone a different way in their lives. I think Harlan's progression from being a Henry Clay acolyte to being a rather full-throated Republican reflected Lincoln's own progression. Lincoln progressed earlier, and Lincoln was president, but Harlan also followed that same path. And I think there's a way to respect the dawning consciousness of people whose views change over time and who then become very articulate exponents of those views. and whose own faith in their conversion played a role in changing minds, changing hearts and minds deeply. I don't think that John Marshall Harlan's views as expressed in his Plessy v. Ferguson dissent would have been nearly as powerful or vehement if he hadn't undergone that journey from being in a slave-owning family, from being a supporter of compromise,

to seeing death and destruction in the war, to then viewing slavery as the cause of the war, as the sin, not the politicians who are taking advantage of it on either side, but the actual sin of slavery as being what tainted America and almost destroyed the American experiment. I think there was real power in his voice because of that. And there was certainly power in Lincoln's words, which have been recognized for hundreds of years. You know, we're at a moment when people will go back and say, wait a minute, you know, Abraham Lincoln supported colonization even at a rather late date. And that was a pretty disgusting position. Or who will say, you know, that

Harlan during his time in the Know Nothing Party was no friend to immigrants. I mean, these are true statements, but they're statements in a, you know, in a very narrow frame. And I would encourage people to look at the full arc of people's lives and not to assume that people never change. I mean, it's fascinating to explore, for example, the relationship between John and Robert Harlan. And there may well have been resentment on the part of Robert Harlan from having grown up enslaved and being unable to of Robert Harlan from having grown up enslaved and being unable to get an education, for example. But he clearly did not blame either James Harlan, the family patriarch, or John Marshall Harlan for this turn in his life. And John Marshall Harlan, you know, again, faced with something

that would have been considered an embarrassing scandal, you know, the rumors all over the place that he's actually got this half half black brother. He respected Robert. He was willing to work with Robert. He you know, he maintained a family connection to Robert and Robert himself not only connected with John, but connected with other siblings in the family and was very much trying to be a real family member. That confounds a lot of our assumptions about slavery and our assumptions about how people dealt with the after effects of slavery. And certainly Robert Harlan would have been justified to be extremely hostile and bitter. And, you know, if John Marshall Harlan had shunned Robert out of a fear of family embarrassment, some people would have said that was reasonable too. But they actually made a

different decision. And it helps to inspire us to believe that individuals can control their destiny even under the greatest of pressure and against the greatest odds in the case of Robert Harlan, having been born into slavery and having confronted racism at every turn in his life, he nonetheless managed to control his destiny, which is a triumph. Both of these stories are incredibly inspirational. I agree. And part of me is angry, if that's the right description. I am, like, John Marshall Harlan should be more famous than John Marshall. When we talk about the Supreme Court, the first name that should come to people's minds is John Marshall Harlan. We should name the damn building after

him, as far as I'm concerned, which, by the way, doesn't have a name. We just call it 1 First Street. I think we should call it John Marshall Harlan Building. Why hasn't this revolution happened in the law? Well, first of all, I think you're onto something. I think that he should be honored in a national way, and I think the Supreme Court is obviously the place to do it. He does have a very respectful following among today's justices. He's a unique figure that sort of unifies the left and right on the court. Justice Gorsuch is an arch-admirer. Justice Roberts has Harlan's portrait in the judicial conference room where the justices meet in non-COVID times to discuss cases. And we know that among liberal justices, Ruth Bader Ginsburg cited Harlan as a role model for the kind of legacy that she wanted to have.

So left and right, there is deep admiration for Harlan, and I think he can be a unifying figure. So honoring him in a national way makes total, total sense to me. I think the reason he's not a household name is because, you know, historians tend to defer to law schools and lawyers to teach the law. The teaching of constitutional law tends to be, just as you described, Sarah, like one case after another, you know, the law is made when the majority changes its mind. You can sort of plot on a graph how different, you know, rights and obligations are parsed out through the years through these majority opinions. But there's no attention given or very little attention given to the context of those decisions,

to the actual stories behind the cases, and especially to the role of dissenters. You know, the legal casebooks include only a tiny handful of dissents, many of them Harlins, because he was so prolific in that area. But generally, dissenters are not respected in the law in the way that people whose, you know, opinions carried the day in the court majority is. So I think Harlan has been left without a home that people who want to teach the majesty of American law and the greatness of the American system neglect him because he was a dissenter. The history of that period of 1840 to 1900 tends not to take account of the Supreme Court. They sort of think the law exists in some separate sphere. And yet, you know, one of the things that's most powerful about researching this book is it shows the Supreme Court was actually more important than any president or any Congress of that period. You know, if we look back at the years Harlan served on the court,

1877 to 1911, the two big takeaways are segregation took hold and income inequality was maintained for a long period and reached a level where most Americans today felt it was a deeply disabling to the country. Why did that happen? Well, it was because the Supreme Court ruled against civil rights, voting rights, access to education, and approve the legal architecture of segregation. It's also because the Supreme Court struck down the Sherman Antitrust Act initially, declared the income tax unconstitutional, and then in the Lochter case said legislating for labor or even for certain forms of health and safety was unconstitutional. Harlan dissented in all of those cases on both sides of the ledger and was in his dissents,

you know, absolutely cognizant of what the effect of these decisions was going to be and the effect on average people, but also the effect on the future of the country and on the American destiny. And, and he was right, they were all wrong. But it shows that the Supreme Court really does influence American life in a, in a deeper way than, than any of the presidencies, for example, during that period, you know, no one's going to say Grover Cleveland or Chester Arthur or William McKinley or Benjamin Harrison, you know, was the instrumental figure during that time. It was the Supreme Court's reinterpretation of the Constitution that allowed the Gilded Age probably to extend for 20 years. And also on the race cases that prevented the kind of reconciliation that began, the painful reconciliation, let's put it this way, and the controversies that began after Brown versus Board of Education. It could have begun in 1883 if the court had ruled differently.

No one would be so wanting and candor, to use a Harlan quote, as saying that, you know, everything would have been hunky-dory if the Supreme Court had just enforced civil rights. No, racism would have existed. Segregation would probably have been imposed in some form. But at least the process of working that out would have begun 70 years earlier. So we can now see the benefit of time, the benefit of history, the benefit of hindsight, the absolute importance of those Supreme Court decisions and just how right Harlan was and how wrong the majority was. So, first, thanks so much for all the time you've given us. You've been really generous. And so I want to end with one last question, and that is. question. And that is, it's how. What you've done is you've dived into the life and times and scholarship of not just a man, but in many ways, two men, and brought them to life in a way that makes you feel like you understand all of it.

What is the process? How do you create this? You know, I think that's something when you read a particularly vivid work of history, that's something I'm always, I always like to know the mechanics. How did this happen? Why did you choose the book? How did this happen? How were you able to bring this to life? Well, first of all, thank you very much, David. That's a wonderful compliment.

And, you know, as I mentioned, I've been interested in Justice Harlan's legacy, I think, for the same reasons that the two of you are and other people are because of what I just said, because, you know, here was somebody who kind of got it right when a lot of people, in fact, almost everybody was getting it wrong. And the question becomes why? And obviously, the Robert Harlan story is a part of that. It's not the only part of it, but it's a part of it. So I approached the book as an attempt to answer that question. Why was Harlan different? And how does personal experience affect jurisprudence and affect the law eventually? I do think that, you know, as Justice Holmes famously said, you know, the story of the law is experience. And in this case, it was the Harlan family experience, the experience in Kentucky, the, you know, growing up in the shadow of the Civil War, the looming war. It was also the

personal relationship with Robert Harlan and, you know, his willingness to forge personal contacts with African Americans. But it was an act of exploration. And one of the things that helped is that Black newspapers of the time have only been digitized in the last 10 or 20 years. If this book were done 20 years ago, we wouldn't have known just how prominent John Marshall Harlan's dissents were in the Black community. And we wouldn't certainly have known far less about Robert Harlan's life and career. So, you know, technology has been our friend in this case. It's also been our friend that, you know, the press was fairly vibrant during that era. And the black newspapers that time are, are quite, uh, important documents and articulate and, um, uh, you know, freer of typos and, uh, bad grammar than today's journalism is.

Um, and that went also for the mainstream newspapers as well. Um, so a lot of the research came through, uh, through those channels. Um,, you know, when you're talking about a Supreme Court justice, there's also records of the cases. And as Sarah mentioned in the second half of the book, I really tried to look at the major Harlan dissents through the frame of those cases and look at those cases almost as miniature morality plays. So in the first half of the book, you get to know this person and this family and the figures there. And in the second half of the book, you sort of see them contending with the great issues of their era. And hopefully there's a lesson in that. Hopefully some of today's young lawyers will read it or children aspiring to

become lawyers, and it'll affect their perspective on the law as well. lawyers and it'll affect their perspective on the law as well. Thank you so much. And guys, you'll need to get this book. The summer you're about to hit into August. I know that you need a book next to you to make it through August. And this is it. It's called The Great Dissenter, the story of John Marshall Harlan, America's judicial hero. It's, as I said, it's a great history book. It is also, for me, sort of a parenting book. How do you raise someone who can do this, can be able to be in society, be part of his world, but also see further, be broader, think bigger, and stand athwart. And what's so fascinating is so often you see those people as the outsiders. They are shunned for some reason by society. And so that's why they're able to see things in a different way than those around them. That is not John Marshall's

story. He is popular. He is well-liked by his colleagues. He likes to be liked, something that we kind of look dismissively on. And yet, none of that stopped him from being probably the, you know, not probably, from being the greatest hero that the Supreme Court has had and one of the greatest heroes in the American story. So please pick up this book. It spoke so much to me, especially this year and especially as a mom. So thank you, Peter. Incredible addition to our world. Oh, thank you so much, Sarah. Thank you.