Today, Conservatives and Liberals do not agree on much when it comes to the Supreme Court. But as the new Trump Court unveils its rulings in the most controversial cases of the just-ended term, the binary divisions suddenly seem less visible and the ways in which judicial ideologies may overlap are more apparent. Rather than dividing along âconservativeâ and âliberalâ lines, the court was unanimous in a narrowly tailored decision supporting Catholic Social Services, and unanimous in a case challenging the NCAA on antitrust grounds. He ruled 7-2 to enforce the Affordable Care Act.
The fact that there is a judicial figure that both sides proudly claim as theirs offers a window into why it is not always easy to divide the court into “left” and “right” – and the evidence that there may be more common ground than is widely held. believed.
It’s easy to see why liberals admire Kentucky-born Harlan, who served from 1877 to 1911, as he laid the groundwork for many progressive 20th-century breakthroughs in civil rights and labor laws. At the height of the Golden Age, he forcefully repelled his colleagues who imposed their conservative political views on the law. He was the only judge to speak out against the suppression of rights for black Americans – in cases involving civil rights, voting rights, integrated education and more. He also championed American citizenship for Native Americans who left their tribal nations, the power of state legislatures to impose health and labor regulations, and the government’s ability to break corporate monopolies.
The fact that all of these issues are seen as liberal milestones makes it all the more surprising to realize that Harlan is deeply revered on the Right. After congratulating Harlan in his confirmation hearing, Gorsuch praised him extensively in his book on American exceptionalism and placed his portrait in his judicial chambers. It’s not the only image of Harlan to adorn the walls of the Supreme Court: a portrait of Harlan takes pride of place in the judicial boardroom, where justices decide cases. It’s thanks to Chief Justice John Roberts, another Harlan admirer. Conservative icon Antonin Scalia praised Harlan’s Plessy dissent as “completely originalist” – his ultimate compliment. And even Senator Mitch McConnell, the architect of the Trump court, has a photo of his fellow Kentuckian Harlan in his office.
All of this would, of course, be a big surprise to most progressives of the Harlan era and their 20th century successors. Frederick Douglass called Harlan a âmoral heroâ. He was revered by liberal crusader William Jennings Bryan. Harlan’s words inspired Thurgood Marshall and the leaders of the modern civil rights movement, and his words, drawn from his dissent half a century earlier, were presented in their legal arguments.
But as much of liberal America eagerly awaits a series of Supreme Court rulings that could overturn progressive legal advances of recent decades, Harlan’s conservative embrace is cause for reconsideration. It’s a reminder that the Trump Court wasn’t really built by Trump, who expected (wrongly, it turns out) “his” judges to do whatever they wanted after the election. Gorsuch, Brett Kavanaugh and Amy Coney Barrett are not the judicial equivalents of Jeanine Pirro and Michael Cohen. They were part of a list of qualified jurists compiled by McConnell and force-fed Trump as a prize for Conservative support. They come from a tradition that denounces Roe vs. Wade and other activist court decisions. But they are also intellectuals with their own legal credentials, including Harlan.
Harlan’s appointment to the court sparked a great deal of suspicion among northern liberals, as he was a Southerner from a slave background and had been slow to embrace the abolition cause. He became the court’s main defender of black rights and economic protections. And if Harlan’s career has proven anything, it’s that legal movements can be politically polarized, but the doctrines behind them are not.
History has vindicated Harlan’s lonely dissent, and what conservatives and liberals have admired over the years in Harlan is his willingness to stand against the tide, to confront his colleagues and public opinion. popular for doing what was right. âHe implicitly believes in the Constitution,â Justice David Brewer, who served with Harlan, said of him in 1902. âHe goes to bed every night with one hand on the Constitution and the other on the Bible, and thus sleeps the sweet sleep of justice and righteousness.
Conservatives see Harlan’s loyalty to the ordinary constitutional meaning as justification for their view that legal protections should be applied strictly as written, based on the original intent of the drafters. When Harlan, in his Plessy dissent, gutted his colleagues for accepting the thin veil of separate but equal rather than granting black people equal protection under the law, he applied both the plain language of the 14th Amendment and the specific intent of those who wrote it. The other judges blithely went their own way. Likewise, by condemning the Conservative judges of his day for forcing their economic views on the law – overturning the Sherman Antitrust Act, for example – he fueled current Conservative criticism of liberal courts of the 1960s and 1970s to print their own values ââon the law.
The Liberals, on the other hand, respect Harlan as one of the few judges of his day who weighed his decisions based on their impact on average people. At a time when many judges retreated to obscure and slightly philosophical decisions, Harlan’s opinions were replete with references to the real consequences of the court’s actions. As a young politician, Harlan had seen the Supreme Court, with its sole final power, put the country on an inescapable path to war with its infamous Dred Scott decision. Going beyond the issue at hand – former slave Dred Scott’s offer of freedom – the Supreme Court ruled that no black people, free or slave, never have rights that white people must respect. This decision simultaneously shocked constitutional scholars, inflamed the anti-slavery forces in the North, and left the political system with no recourse to solve the problem of slavery other than war.
For Harlan, who fought to prevent his home state from joining Confederation, the Dred Scott decision was a constant reminder of the grave harm that comes when the Supreme Court is wrong. Justice, he came to believe, had to be measured in several ways – for doctrinal consistency, yes; but also for how it would affect the individuals on the ground and the future of the country.
At the end of the civil war, Harlan recognized that the nation could not uphold minority rights with soldiers forever; it must become the incessant obligation of the courts. He stuck to this mission even when his colleagues did not. And when the United States became a colonial power, taking control of Puerto Rico, the Philippines and Hawaii, it saw in their uneven treatment a revival of the old cancer. His demand that the Constitution follow the flag – that all people under his power have equal rights – is the only part of his legacy that has yet to become a reality.
But while today’s liberals find much to admire in Harlan, it behooves them to recognize that the dissenting opinions they applaud include a heavy dose of originality and textualism, doctrines so often invoked by conservatives. A serious examination of what the framers of the Constitution really meant was one of his tools for breaking out of the moral traps of the time. Conservatives, likewise, should understand that Harlan was not committed to their notion of “originalism” as the only way to interpret the law. When court mandarins pointed to the obscure language of the Constitution to overturn a century of precedent and declare income tax unconstitutional, Harlan sided with the previous one: income tax had become the norm. widely accepted, no matter what other judges have guessed in the Constitution’s hazy language on direct and indirect taxation. In the infamous case of Lochner v. new York, he rightly rejected the attempt of his fellow judges to have the intuition of a “right to contract” in the Constitution – but did not completely slam the door on the judicial protection of rights not specifically mentioned in the Constitution, as some of today’s Conservatives would.