John Marshall Harlan: Dissent in Hurtado v. California

About the Author

Named for the “Great Chief Justice” of the United States and ardent Federalist John Marshall, John Marshall Harlan was born into a prominent Kentucky family with Whig Party affiliations. Harlan was the first U.S. Supreme Court justice to earn a law degree, which he received from Transylvania University in 1853, after graduating from Centre College in 1850. Harlan joined his father's Frankfort, Kentucky, law practice and his father's political party. The elder Harlan was a slaveholder and crony of the Whig leader Henry Clay, who supported gradual emancipation. John Marshall Harlan inherited James Harlan's paternalistic attitude toward slavery as well as some of his father's slaves. He would have inherited his father's position among the Whigs had the party not come apart in the 1850s over the issue of whether slavery should be allowed to expand into the American territories. Instead, father and son joined the nativist Know-Nothings, a short-lived political party in the 1850s that was fueled by fear that the nation was being overrun by Irish Catholic immigrants.

In 1858, Harlan, running as a Know-Nothing, was elected county judge. Over the next few years he voiced a number of racist and states' rights opinions that would later come back to haunt him. With the advent of the Civil War in 1861, however, Harlan discovered his true political orientation. A staunch supporter of the Union, he raised a company of infantry volunteers and joined the Union army. He did so out of unswerving loyalty to the Constitution, not any abolitionist sentiments. He threatened to resign his colonel's commission if President Abraham Lincoln signed the Emancipation Proclamation, but he did not do so until James Harlan's death in 1863 obliged him to take over his father's unfinished business. The same year, running as a Constitutional Unionist, Harlan won election as Kentucky's attorney general. After the war ended, the party, made up largely of conservative former Whigs who wanted to avoid disunion over slavery, lost its reason for being. In 1868, like many former Whigs, Harlan joined the Republicans, where he quickly embraced his new party's antislavery platform.

Despite failing to win the governorship of Kentucky in 1871 and 1875, Harlan remained active in Republican political circles. In 1876, heading up the Kentucky delegation, he attended the Republican National Convention, where his support for Rutherford B. Hayes helped the latter secure the party's nomination. The close 1876 presidential contest between Hayes and Samuel J. Tilden dragged on for months, but shortly after it was settled in Hayes's favor, the new president appointed Harlan to head a commission charged with ending Republican rule in Louisiana, thus enforcing the political compromise that had resulted in Hayes's election. Consistent with his policy of ending Reconstruction and promoting North-South reconciliation, in 1877 Hayes nominated Harlan, a Unionist son of border-state Kentucky, to serve on the Supreme Court. Important documents from Harlan's tenure on the Supreme Court include his dissents in a number of landmark cases.