Dear denco,
The answer to your question varies to some degree with my mood, and
perhaps even with the time of day. At times, it's like trying to pick
your favorite dwarf from Snow White - and on those days, even "Dopey"
has a shot at victory. At other times, its more like handing out
consolation prizes at a beauty pageant. At still other times, when I
am feeling cynical, you may as well ask me to name my favorite
dictator from the developing world.
One thing that is noteworthy about even the best justices - the longer
they sit on the Supreme Court, and the more opinions they write, the
more likely it is that you will find an opinion that in retrospect
appears to be a mistake. Perhaps a colossal mistake. For example,
Oliver Wendell Holmes, Jr., whom most consider to be one of the great
Justices of all time, authored the unfortunate decision, Buch v. Bell,
274 U.S. 200 (1927), which legitimized what might best be described as
eugenics. Certainly, that decision was in no small part a product of
its time, and did not foresee what would be done in the name of
"improving the race" over subsequent decades. (In another example of
how telling hindsight can be, another Justice widely considered to be
one of the greats, Hugo Black, authored Korematsu v. United States,
323 U.S. 214 (1944), legitimizing exclusion and internment orders
directed at Japanese citizens of the United States during World War
II.)
At the same time, Holmes became known as "The Great Dissenter",
highlighting his tenacity in advancing his own opinions, even against
the majority of his colleagues. It has been said that the majority
opinion is written for the present, but the dissent is written for
posterity. The dissenter hopes, and perhaps anticipates, that
eventually society will look back on the dissenting opinion and
realize that it was actually the correct resolution to the issue
before the court. (A significant number of subsequent justices have
tried to earn the mantel of being "great dissenters", but that
typically turns out to be a flight of fancy, or in some cases, perhaps
even of ego.)
Today, I am selecting Justice John Marshall Harlan as my favorite, for
his dissent in Plessy v. Ferguson, 163 U.S. 537 (1896). The Supreme
Court had been asked to review a Louisiana law compelling racial
segregation in railroad carriages. The majority of the Supreme Court
held that "separate but equal" facilities were constitutional. Justice
Harlan's dissent, which recounts his personal journey to the south,
challenged that view. "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."
An abstracted copy of the opinion can be found on Professor Doug
Linder's Famous Trials Page, hosted by the University of
Missouri-Kansas City Law School:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/plessy.html
In 1954, the Supreme Court published an opinion which rejected
"separate but equal" in public schools, and essentially adopted both
the reasoning and conclusions set forth by Justice Harlan more than
half a century earlier. You have heard of this case - Brown v. Board
of Education, 349 U.S. 294 (1955). Over that period, Harlan's position
went from being that of the lone dissenter to being that of a
unanimous court.
You can learn more about the transition from Plessy to Brown on the
Landmark Supreme Court Cases website,
http://www.landmarkcases.org/brown/dissent.html
Justice Harlan's opinion has significance on several levels. First, it
reflects his courage in standing up for his ideals against the
prevailing attitudes not only of his colleagues, but of popular
culture. Second, it involved climbing out of the ivory tower, and
acknowledging the real world impact of the decision. Most (probably
all) of Harlan's colleagues knew that there was no equality in
'separate but equal', but chose not to confront that reality. Third,
it reportedly reflects Harlan's own personal experiences travelling
through the southern United States, and suggests a flexibility of
intellect and conscience that sometimes seems absent from legal
decisions. Fourth, he was right, and history has vindicated his
position.
Research strategy:
To provide annotations, I ran some Google searches:
* harlan dissent plessy
://www.google.com/search?q=harlan+dissent+plessy
* plessy 1896 "separate railway carriages"
://www.google.com/search?q=plessy+1896+%22separate+railway+carriages%22
* brown board education plessy harlan dissent
://www.google.com/search?q=brown+board+education+plessy+harlan+dissent
I hope you find this interesting,
- expertlaw |
