The Great Dissenter No More: Justice Harlan, the Fourteenth Amendment, and United States v. Shipp

Justice John Marshall Harlan made his reputation on the Supreme Court in the late nineteenth and early twentieth centuries as the “Great Dissenter.” With a judicial view of the Fourteenth Amendment’s protections for newly freed Black Americans that differed from his colleagues, it was Harlan who stood alone in dissent from the Court’s opinions in landmark cases which narrowed the impact of that Amendment. For his willingness to stand alone in defense of equal protection of the law for freed Blacks and his willingness to authorize the federal government to step in and vindicate their rights when states would fail to do the same, Harlan doubtless earned the veneration of civil rights activists and his Great Dissenter nickname.
Yet the biographic record of Justice Harlan’s role on the Court has largely overlooked a crucial moment in his judicial career, one where Harlan set aside his penchant for dissents and instead built a coalition to protect the rights of Black Americans and the power of the federal government to act on Fourteenth Amendment violations. This historical moment, the case of United States v. Shipp, sheds new light on Harlan’s career and legacy, demonstrating something more than the Great Dissenter’s willingness to speak out alone and sound the alarm on equal rights and protections.