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Opinion | ‘Separate but Equal,’ the Court Said. One Voice Dissented.

The greatness of Harlan’s opinion was in the way it combined unyielding principles with a common-sense examination of the case. The subject was Louisiana’s separate-car law, through which the proponents argued that keeping travelers like Homer Plessy in a separate railroad car didn’t violate the Constitution as long as they got substantially equal service. Harlan saw instantly that holding one race apart from all others didn’t pass the smell test, and he was frank enough to declare that everyone else knew it as well: “The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.”

He also clearly saw the pain of the victims. His open declaration that a “wrong” had been done to African-Americans not only affirmed their rights but acknowledged their humanity. Furthermore, he predicted that the horrific effects of the decision — while visited exclusively on Black people — would do pernicious harm to the country at large: “What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens. …”

While these words were barely noticed in the white community, they were widely discussed among Black leaders. The fact that one person, rather than none, in the white power structure had recognized the injustice visited upon them was a slender thread that nonetheless kept some Black people believing in the American system.

When Harlan died in 1911, Black congregations around the country organized spontaneous memorial services without expecting that a single white person would attend. Three of these all-Black services were in Washington, D.C., culminating in a huge multifaith gathering at the cavernous Metropolitan A.M.E. Church at which Harlan’s Plessy dissent was read aloud.

All of this was invisible to the white community. But a few decades later, Thurgood Marshall and his team at the NAACP Legal Defense Fund began scouring the country for plaintiffs willing to challenge segregation laws, knowing that the Ku Klux Klan was on high alert. Harlan’s dissent provided the sole beacon of hope that the courage of the Black defendants might someday be rewarded.

“Marshall’s legal staff would gather around him at a table in the office to discuss possible new legal theories for attacking segregation,” recalled Constance Baker Motley, one of Marshall’s top lieutenants. “Marshall would read aloud passages from Harlan’s amazing dissent. I do not believe we ever filed a brief in the pre-Brown days in which a portion of that opinion was not quoted.”

Indeed, in their brief to the Supreme Court in the Brown case itself — the culmination of their relentless legal campaign — Marshall and his team quoted directly from Harlan before concluding, “It is the dissenting opinion of Justice Harlan, rather than the majority opinion in Plessy v. Ferguson, that is in keeping with the scope and meaning of the Fourteenth Amendment. …”

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