U.S. Supreme Court judge who tried to correct a racial injustice

Thu, 08/06/2020 - 6:00pm

Ed. note: Writer Bob Downie brought this 2009 column to our attention noting its relevance in the era of the Black Lives Matter movement.

On Oct. 10, 1878, after a lengthy stay that summer at the Ocean View Hotel overlooking the sea at Old Harbor, Malvina Harlan wrote home to a friend in Louisville — one of the earliest “My First Time on Block Island” letters.

She was the wife of John Marshall Harlan of Kentucky, who 10 months earlier was sworn in as a justice of the United States Supreme Court. Before the Civil War he had owned slaves, as had his father before him. During the war, though, he was a hero in the Union Army, rising in his Kentucky regiment to become a general.

The summer after his Supreme Court appointment, following the example of an ever-increasing number of officials from Washington D.C., John and his wife Malvina spent a long summertime vacation on Block Island, far at sea, away from the heat of that hot city.

Both would write during their lifetimes. And both would write about colors, but in wildly opposite ways.

In the afterglow of her visit to Block Island — sent in October 1878 from Washington, D.C., to Louisville, Kentucky — Malvina Harlan wrote:

“Did you ever see the ocean... I wish that I could give you such a pen picture as would do it justice… You have read of the dark blue sea — indeed we have sung together of it, haven’t we? ...

“Think of a long line of deep purple shading off into a delicate pink or rose color, and on out beyond that a streak of dark rich green — with the blue still farther out, on and on till you lose the line altogether in the blue vault of heaven!

“Watch the waves as one after another they come rolling in — now in a long line swelling higher and higher it breaks and sends the beautiful sea foam rivaling the snow in whiteness, way up the beach, and hear it as it goes singing back over the myriads of pebbles and shells brought up with it.

“Watch another following closely on the last, a great large billow is this one, that swells & grows but keeps its form until it reaches your very feet almost, and sends the water up so gently you can scarcely hear it.”

When I hold her letter I hardly know what to do with it. Keep it, I suppose, for I can remember some of my own first attempts at describing the island, as an impressionable teen almost 90 years after Malvina’s visit. I’ll save her letter along with the postcards I used to send off on the boat to my family.

Malvina’s husband John stayed on the Supreme Court for another 43 years until his death in 1911. What he wrote is part of United States history.

John and Malvina Harlan came to Block Island so often during the 1880s — as old brochures from the Ocean View Hotel boast — that many other U.S. Supreme Court justices came with him, to the point that official business of the Supreme Court was conducted on that now nearly-vacant hill overlooking Old Harbor.

And John Marshall Harlan wrote more opinions for that court than anyone else: 745 for the winning majority decision, 100 concurring opinions, and 316 dissenting ones, for a total of 1,161 opinions.

I’m taking aim at the one opinion above all others that he will remain known for, and it was on a vote that he lost.

While Rosa Parks of Alabama won her Supreme Court case in 1956, after she refused to sit at the back of a public bus with fellow Black passengers, a similar case had occurred 60 years earlier.

In 1896, Louisiana passed a law saying Blacks could not ride on a railroad train reserved for Whites, but would instead have to wait for a “Black” train. But Homer Plessy, a man of Black heritage, nevertheless boarded a “White” train, was arrested, and soon convicted. His case, as Black activists had hoped, went to the U.S. Supreme Court.

In an overwhelming decision the Supreme Court voted against Plessy, thereby allowing states to pass more and more laws to keep the races apart. Because of that one decision, the demeaning process was to continue for another 60 years, as more and more restaurants, theaters, buses, and schools —- you name it — especially in the south — led to a hostile segregation of the country. Finally in the mid-1950s a unanimous Supreme Court struck down the hated doctrine of separation created in 1896.

But back in 1896, when the Supreme Court legalized segregation, there was one amongst them who said no.

A man with a wife who tries to figure out the colors of the ocean as her eye follows the diminishing waves into infinity can’t be all bad, and he wasn’t.

John Marshall Harlan, when he was outvoted by his fellow Supreme Court members 7 to 1 in 1896, wrote this:

“In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here.

“Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful …

“The arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.”

Oh, and why did Malvina Harlan wait more than a month after returning from Block Island in 1878 to write her letter describing it? She explained in her letter:

“You have heard of that old ‘thief of time’ — Procrastination …”

She said more, that after arriving on Block Island for the long vacation she had intended to write from there, but:

“I did not know then, how hard it would be among so many pleasant people to talk with — and listen to — and the dear old Ocean beckoning me out with pleasant parties to sit upon the beach, and gather shells & pebbles, and watch the waves as they came one after another rolling in, no two alike — how hard it would be to write letters or do anything but have a good time.”

A good time on Block Island in the summer? Yes. And perhaps, too, in those distant years some mighty, simmering thoughts swirled through the pleasant sea air on the Ocean View hill — not dispersed by afternoon winds but retained in minds to bring to others.

This column was first published in 2009.