'The Marble Palace Blog': Should It Become the Harlan Palace?

I launched this blog last month with the name of “The Marble Palace” because that is a nickname for the Supreme Court building. All of a sudden, now comes someone who wants to change the name of the majestic building altogether, naming it after Justice John Marshall Harlan, who served at the court from 1877 to 1911. (Not to be confused with his grandson John Marshall Harlan II, who was a justice from 1955 to 1971.)

The instigator is Sarah Isgur, a Harvard Law School grad who clerked on the U.S. Court of Appeals for the Fifth Circuit. She was a Justice Department spokeswoman during the Trump administration.

In a Politico essay, Isgur wrote that it was time for naming the high court building. “The building’s lack of identity can sometimes seem to mirror the opaqueness of the institution itself. Both the edifice, and the court it houses, need a story to help Americans make sense of them,” she said.

The pinnacle of Harlan’s story was his role as the sole dissenter in Plessy v. Ferguson, the 1896 race ruling that approved the principle of separate but equal. Harlan said no: “Our constitution is color-blind, and neither knows nor tolerates classes among citizens.”

But as Isgur acknowledged, Harlan did not always embrace racial equality. Harlan had opposed “both Lincoln’s Emancipation Proclamation and the 13th Amendment before becoming the greatest defender of racial equality in court history,” she wrote. Harlan also disparaged what he called “the Chinese race” in his Plessy dissent. But still, Isgur said, the court should be named after Harlan not in spite of those failings “but because of it. He, of all the justices in U.S. history, shows how an intense and unfaltering faith in the Constitution can chart a path to enlightenment.”

Asked about Isgur’s idea, Josh Blackman, founder of the Harlan Institute, said, “I am skeptical the court will ever change its name, but of all the justices we should venerate, Justice John Marshall Harlan I tops any list.”

To get another take on Isgur’s notion, I contacted Peter Canellos, author of a highly acclaimed biography of Harlan published this year, named “The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero.” He is also an editor at Politico. Here’s our conversation, somewhat condensed:

Knowing what you know about Justice Harlan, do you think the Supreme Court building should be named after him?

I thought Sarah Isgur made a fine case. Harlan himself would, of course, happily defer to the man he was named for, Chief Justice John Marshall. Many would share that opinion. The best reason to choose Harlan over Marshall would be his connection to the nation’s racial crucible. If the historic challenge of American democracy has been to bring people of different races and backgrounds under the equal protection of its laws, Harlan occupies a unique position in that enduring struggle. At the start of the segregation era, the very darkest period in Supreme Court history, he alone kept true to the spirit of the Constitution. In doing so, he inspired others, including the leaders of the 20th century civil rights movement.

Given that we are in a period when monuments and streets are banished because of their racist pasts, could Harlan survive as a name for the court? His comments in Plessy about the Chinese race, as well as his early background opposing emancipation and the 13th Amendment might make his naming impossible.

I think it’s important to recognize that people can be honored for their great deeds and the impact they had on American history without endorsing every aspect of their lives and careers. I think Harlan’s record on civil rights is extraordinary. In dissent, he stood up for the equal rights of African Americans, Native Americans, and people in the Philippines, Hawaii and Puerto Rico during America’s brush with imperialism. The Chinese cases were different because, under the strictures imposed by Congress, Chinese workers were not citizens and remained subjects of the Chinese emperor. Otherwise, his record is pretty admirable to modern eyes. But it’s not without blemishes. I think the same would be true of any other legal figures who’d be outfitted for monuments.

How do you explain the fact that Harlan has been praised by Neil Gorsuch and other conservatives, as well as Ruth Bader Ginsburg and Thurgood Marshall?

Today’s conservatives see Harlan’s career as a vindication of their belief in adhering to the original intent and plain meaning of the Constitution. When Harlan stood up for equal protection under the law, he was doing just that. So, too, did he defend the principle of judicial restraint in Lochner and other cases. Liberals admire the fact that Harlan was intensely concerned with the impact that Supreme Court cases would have on real people, and on the trajectory of the country. He understood there was no recourse when the Supreme Court got it wrong, except to appeal to future generations through dissent. His opinions often expressed sympathy for victims of court decisions he felt went the wrong way.

I hope that today’s liberals and conservatives can grow to appreciate what each other admires in Harlan. Original intent and plain meaning are powerful tools of interpretation. At the same time, jurists should be mindful of the practical effects of their decisions.

What was Harlan like as a justice? Did he get along with his brethren and his clerks?

Harlan loved serving on the court, and was popular in the D.C. bar and as a teacher at Washington’s Columbian University [now George Washington]. He had a loyalty and even fondness for his brethren, but that didn’t stop him from disagreeing passionately with certain of them. Stephen Field was once the recipient of some angry finger-pointing from the bench, and Harlan’s relationship with Holmes was complicated. They had some mutual respect, and fellowship as Civil War veterans, but also seemed to recognize themselves as judicial opposites. Holmes was known for his doctrinal brilliance, Harlan for his firm sense of justice. The modern clerk system wasn’t yet in place when Harlan served, but he had a very close relationship with his Supreme Court page, an African American man named James Jackson. Jackson was at Harlan’s side, along with his family members, when he died.