On Tuesday, I spoke to the Louisville Federalist Society chapter about presidential immunity. After the panel, I had the good fortune to visit the library’s special collections, which contain the papers of Justice Louis Brandeis, for whom the law school is named. Justice Brandeis was, in fact, Buried This collection outside the building also contains the papers of Justice John Marshall Harlan. I have been looking at the Harlan papers at the Library of Congress for some time. In 2013 I Published A paper co-authored with Brian Frye and Michael McCloskey that transcribes Harlan’s constitutional law lecture notes. (To this day, I still use some of Harlan’s quotes in my classes. For example, I teach my students that the Supremacy Clause is the most important clause in the Constitution, and without it, everything else falls apart.) Over the years, I have corresponded with Harlan’s students. Peter Scott CampbellMs. Campbell, the Louisville librarian, was kind enough to show me around the room.
One of the coolest things I’ve seen letter Frederick Douglass wrote to Justice Harlan: Civil Rights Lawsuits (1883) was decided. Read Campbell’s kind letter in full: TranscribedThe following is an excerpt.
[Harlan’s dissent] It seems to me absolutely incapable of being refuted or assailed on any point by any fair argument, for there is not a single weak point in it. You have performed an important and in some ways difficult and delicate task, and you have done it with amazing ability, skill and effectiveness. … I have no complaints about your colleagues on the Supreme Court, but I am astonished and distressed by what they have done. I cannot explain how they could today, in the light of the past, have committed themselves and their country to such an abdication of national dignity and duty. I have read their statements and I see no solid justification for them. They are superficial and [???]It’s smooth and logical within a narrow range and nothing more.
To this day I remain convinced that Justice Harlan was right. Civil Rights LawsuitsHad his view been accepted, the Court would not have had to distort the Commerce Clause. Katzenbach and Heart of Atlanta Motel. And in the following case: United States v. Morrison The outcome would have been different. Moreover, if the Civil Rights Act of 1875 had been upheld, Never I would have had PressyBecause public transportation segregation laws would be preempted by federal legislation. PressyBut the root cause of the problem is Civil Rights LawsuitsIf you want to go back 10 years, Slaughterhouse incident.
Douglas also American Reformer A newspaper article about Harlan’s dissent. The first paragraph defends Harlan’s decision on his own terms.
[Harlan] He felt isolated from his colleagues on the Supreme Court and called to stand before the nation as a true expositor of the amended Constitution and the duties of the federal government. Protect and defend the rights of the people against all infringements of their freedomThe opinion he gave the nation on the constitutionality of the Civil Rights Bill places him as one of the ablest jurists who ever sat on the Supreme Court. Judge Curtis’s excellent and commendable opinion Justice Taney’s notorious dissent from Dred Scott rivals it in ability, thoroughness, comprehensiveness, and conclusive reasoning. In comparison, the opinion of eight justices is like eggshells against a cannonball. The Bible says that a thousand men chase one another, but one opinion like this one can blow away ten thousand opinions like the lean, starving opinions denying the constitutionality of civil rights bills and the obligations of the Federal Government. Protect the rights and freedoms of our citizensUnless one is blinded by passion, prejudice, or self-interest, one cannot read this decision without feeling respect and admiration for the man behind it. Whereas the Court’s decisions have been narrow, superficial, and technical, Justice Harlan’s decision has been broad and generous, dealing with substance and not shadows, with reality and not abstractions…
Several important points emerge here. First, Douglas described the Civil Rights Act of 1875 as “protection Douglas created a Constitution that guaranteed citizens “rights and liberties.” This is precisely the correct interpretation of the Fourteenth Amendment. Section 1 made freedmen citizens and granted them the privileges and immunities of citizenship. States were obligated to equally protect these privileges and immunities, including the right to public accommodations. And Congress, through Section 5, could enact appropriate laws to ensure that these rights were protected. The Equal Protection Clause was not, as the Warren Court would have it, a binding treaty that treated everyone equally. Instead, Douglas’s view, as Chris Green explains, is that the Equal Protection Clause imposes a duty to protect everyone equally from violations of their rights. Douglas was able to express an elegant constitutional principle in very few words.
Second, Douglas pays tribute to Justice Curtis’ dissenting opinion. Dred ScottAlthough it is little known, Curtis resigned from the Supreme Court shortly after the Taney decision. Curtis was highly regarded by Douglas and was inducted into the Hall of Fame by Harlan. Prigg v. Pennsylvaniadidn’t make the cut.
Third, Douglas uses the phrase “deal with substance, not shadow,” which may sound familiar: Chief Justice Roberts used the same phrase in his decision to exonerate President Trump.
This proposal threatens to undermine the immunity we have granted. It would allow prosecutors to do indirectly what they cannot do directly: allow a jury to review conduct for which the President has immunity and still prove his liability on any charge. But “[t]”The Constitution deals with substance, not shadow.” Cummings v. Missouri, 4 Wall. 277, 325 (1867).
Another passage by Douglas is particularly important in light of recent discussions on this blog.
As for Judge M. Harlan, no man in America occupies a more enviable position at present. His attitude is one of outstanding moral nobility. It is astonishing that, born in a slave state, accustomed to see the blacks degraded, oppressed, and enslaved, and the whites exalted, surrounded by the peculiar moral atmosphere inseparable from slavery, he should have so clearly grasped the lessons of the last war and the principles of Reconstruction, and especially in these languid days, Discovering that you have the courage to resist the temptation to go along with the crowdHe chose to perform a difficult and delicate task, and he performed it very faithfully, skillfully, and effectively. In the old days, when Garrison, Phillips, Sumner, Wilson, and others spoke, wrote, and worked among the people, Massachusetts left to Kentucky the honor of supplying a moral hero to its Supreme Court. That state spoke through the cultivated legal mind of Judge Curtis. But, fortunately for us, Kentucky has Stemming the tide of proslavery reaction required strength and courage, but Justice Harlan also offered patience, wisdom, diligence, legal ability, and heroic courage..
I wrote Some length About the concept On the courage of judges. And I use a lack of courage to explain why some judges vote the way they do. Will, Orrin, and Sam push back against my discussion of the “courage” of judges. They think it’s a corrupt and dangerous way of thinking about judges. They also think that focusing on how judges vote, rather than the content of their opinions, is problematic.
This latter point will come as a surprise to the entire political science department, which painstakingly counts the justices’ votes; and Let me state with certainty that my analysis of “courage” is not new. It goes back at least to Douglas, and in fact much earlier. Today’s judges, 20th century judges, and 19th century judges are not all that different. There is always the “temptation” to “go along with the crowd,” as Douglas wrote. Now, one might try to limit “courage” to standing up to racism and Jim Crow laws. But that was not Douglas’s point. Rather, courage means the willingness to stand up alone for one’s beliefs, and to go out alone. A solo dissent takes courage. Justice Thomas dissented without any reservations. Justice Alito has dissented several times before. Justice Scalia Morrison The dissent comes to mind: how often are other justices willing to stand alone and go against the tendencies of the “majority”?
Relatedly, I have some other archival documents from Justice Brennan’s papers in which he thanks and praises the Supreme Court counsel (who are still with us) for their Supreme Court advocacy. I will make those public at the appropriate time. There is nothing new out there.
