The Moral (and future legal) Value of A Principled Dissent

This Channel 13 treatment of the lone dissent in an 8-1 1883 Supreme Court ruling that declared there was no further need for laws to protect freed slaves deserves its own post. It’s a public television teachers’ guide to the principled dissent, by the one Supreme Court justice who had owned slaves, to the near unanimous decision nullifying the 1875 Civil Rights Act, the so-called Civil Rights Cases.

The discussion is a great illustration of how a principled dissent (see Ruth Bader Ginsburg’s in that recent 5-4 voting restriction ruling in Wisconsin) can become the vindicated voice of the future, speaking to a grave judicial mistake being made in the present.

But first, an example of a recent partisan dissent, shamelessly written purely to support a desired political outcome, from a recent 7-4 voting decision in Arizona (a case that will be reviewed by the US Supreme Court, some time after the 2020 election):

Judge Fletcher [writing for the majority] added that “there is no evidence of any fraud in the long history of third-party ballot collection in Arizona.”

In a pair of dissenting opinions, four judges wrote that the state’s restrictions were commonplace, supported by common sense and applied neutrally to all voters [the majority points out, using evidence, that poor, urban voters– predominantly Democratic– are disproportionately affected –ed].

In one dissent, Judge Diarmuid O’Scannlain, writing for four judges, said lawmakers were entitled to try to prevent potential fraud. “Given its interest in addressing its valid concerns of voter fraud,” he wrote, “Arizona was free to enact prophylactic measures even though no evidence of actual voter fraud was before the legislature.”


The state legislature has a right to enact measures to restrict voting in this way, in the interest of preventing fraud, wrote the dissent,

even though no evidence of actual voter fraud was before the legislature.”

Principle: lack of actual evidence should not impede a judicial finding when the finding benefits a political party that has the votes to ignore the lack of evidence.

Back to the lone principled dissent in the Civil Rights Cases. Justice Joseph Bradley writing for the majority stated the position of the US Supreme Court:

“When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.”

Ruling in the “Civil Rights Cases of 1883”

Here is the story of the prescient dissent, which had it been written for the majority, would have greatly improved American prospects for a just and equitable society over the next 137 years (though, arguably, less immense, selectively distributed wealth would have been created):

The opinion ends with Justice Bradley saying, “There comes a time when, after the emergence of slavery, a person must take on the role of mere citizen and cease being a special favorite of the law.” And what the Court is announcing then is, “Reconstruction is over. You’re just like anyone else.”

There was only one justice who refused to join the majority. He was a starch-collared, fundamentalist Presbyterian and former slave holder from Kentucky named John Marshall Harlan. He was also the only justice who’d seen slavery and Reconstruction up close.

As attorney general of Kentucky just after the Civil War, Harlan had been a vocal opponent of the Thirteenth and Fourteenth Amendments. He’d been among the office holders who stirred white rage against freed slaves. In Harlan’s hometown of Frankfort alone, there were 64 catalogued acts of white supremacist terror against freed blacks and their political allies. When Harlan saw the bitter fruit of his politics, he’d been shamed.

Even though he was raised as a white supremacist, raised as a slave holder, at the same time he firmly believed that his father had been an honorable white man, that he had never abused power. That may be a myth, but that’s what he believed. And he wanted to live up to that kind of honor. And so people threw his history back in his face. And he said, “I would rather be right than consistent.”

The Northern members of the Court could talk in generalities about how the freedmen had become equal in the eyes of the law, and no longer needed the special help of the federal government. But Harlan knew better. He knew the predicament that blacks faced in the South. And he knew that civil rights could not be protected simply with the abstractions of the language of equality — that civil rights required the federal government to give the aid that was necessary.

Harlan determined to dissent in the Civil Rights Cases and to dissent loudly, but once he began to write, he found himself paralyzed … until his wife pulled from storage a strange memento the Harlans had bought: the inkstand Chief Justice Roger Taney had used to write his infamous Dred Scott decision, a decision in which he had observed that blacks had no rights a white man was bound to respect.

She cleaned it. She filled it with ink and she put it on his desk so that when he came home from church one Sunday it was sitting there. And in effect, what she was reminding her husband was that the Dred Scott case needed to be undone.

Harlan’s dissent in the Civil Rights Cases says, we the Court protected the rights of slave masters and upheld congressional laws protecting slave masters. And now, when the Constitution has been amended to protect the rights of former slaves, we’re striking down congressional laws designed to enforce that right. We are not treating the former slaves with the same kind of generosity that we once treated slave masters, and that’s hypocrisy.

Harlan is that one voice on the Court that still embodies that previous commitment that was made just a few years earlier to that goal, to the goal of racial equality. But the rest of the country, and the Court, had moved on.

The country doesn’t want to continue with this experiment in coerced reform of race relations in the South. And I think the Supreme Court is basically putting its stamp of approval on that. They’re saying the national government is not going to intervene anymore in Southern race relations. We are restoring home rule on the race issue to the South. We’re gonna return to the status quo, which is: upper-class whites in the South get to decide what race relations are gonna look like.


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