How a Black Man Inspired One of America’s Greatest Supreme Court Justices

Robert Harlan (seated on the right) with Bishop Arnett (founder of Payne Theological Seminary in Wilberforce and seated on the left) and Jere Brown (brother of Hallie Q. Brown who is standing). All three were in the Ohio General Assembly at one point and worked to repeal many of Ohio’s Black Codes. | National Afro-American Museum and Cultural Center

It was a gentle warning from a person with a shared history and a common set of references: “I beg to repeat to you the words of an old Colored man that formerly belonged to your father—they were do-do-take-care.”

The last four words were underlined to emphasize the message of concern: do-do-take-care.

The letter was written by Robert Harlan, the leading Black politician in Ohio, to John Marshall Harlan, the white future Supreme Court justice, on April 14, 1877. And it underscored an unlikely alliance that, though hidden from history, would help to keep a flicker of hope alive during the long, tortuous decades of segregation. John Marshall Harlan would become the court’s sole defender of Black rights, whose scorching dissents lit a path to the 20th century civil rights movement; Robert Harlan’s legacy would fade under the relentless repression engendered by the very decisions John fought against.

But Robert and John shared more than a last name. They had grown up in the same house. Each had watched the other rise to national prominence. They had come to express similar political sentiments.

There was also one difference: One of them, Robert, was born into slavery. But their relationship remained close enough that they strategized together in the days surrounding the 1876 Republican convention, which nominated the man who had just become president at the time the letter was sent, Rutherford B. Hayes. And some newspapers had reported as fact what had long been rumored: They had the same father.

Whether that was true or not, Robert, who was 16 years older, knew that John’s late father had dreamed of John going to the Supreme Court since giving the newborn baby the name of his own legal hero, Chief Justice John Marshall.

Forty-four years later, John was in contention for the court seat being vacated by one of Abe Lincoln’s old friends, David Davis, and Robert was taking on the self-appointed role of adviser and protector.

Hayes, who had prevailed in a disputed election by promising concessions to Southern whites, wanted to pick a southerner for the court seat. But that appointee would have to run a gauntlet: confirmation by a deeply suspicious Senate Judiciary Committee headed by a Vermont Republican who was wary of Southern backsliding on civil rights.

So any nominee had to be both Southern and fully satisfactory to Northern progressives.

At this perilous moment, John Harlan agreed to take on one of the most politically thankless tasks of the era: serving as one of Hayes’ representatives to assess a violent uprising in Louisiana, where disruption in state elections had yielded rival governments. The situation was so fraught that the Republican governor was a virtual prisoner in his makeshift statehouse. His allies cited massive violence that had kept Black voters from the polls. Democrats, however, decried the federal mandates preventing unrepentant Confederates from exercising their franchise, restrictions that were enforced by U.S. troops, still mustered in New Orleans 12 years after the end of the Civil War.

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SOURCE: Politico, Peter S. Canelos

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