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.
Almost everyone sensed that Hayes was on the verge of removing the troops, part of the unwritten bargain that had enabled him to assume the presidency. And many people believed that Hayes’ Louisiana Commission, which John Harlan had just loyally pledged to join, was a sham orchestrated to produce the very outcome that had already been promised: restoration of power to racist Democrats.
In Robert’s eyes, focused on the Black community and its Northern allies, no good could come of this commission. John was sacrificing his career to Hayes’ convenience. Radical Republicans would never confirm a Supreme Court justice who could be blamed for surrendering to a mob of ex-Confederates. In political terms, John was wading into a swamp, and Robert knew it. So he did something surprising for a person born enslaved, even one reported to be in the family bloodline: He invoked their common upbringing, conjuring the memory of the family patriarch and speaking in the kind of code that only family members use.
John did take care. The Louisiana Commission proved to be just as much of a powerless dead end as Robert had envisioned, and Hayes removed the troops. But John managed to extricate himself from the mess by plausibly claiming that the Republican government had collapsed on its accord. His service earned him Hayes’ approval, and by October 10 Robert was writing from Washington that he had conferred with many people who had touted John’s Supreme Court credentials to Hayes and that they “had no doubt that you will be appointed.”
Supreme Court Justice John Marshall Harlan | Library of Congress
The rest is history. John Marshall Harlan went on to have a miraculous career on the bench, earning the sobriquet “The Great Dissenter” for his uncanny prescience. He took forward-looking stances that not only envisioned the legal structure of the 20th century but helped to shape it. Most importantly, he stood alone in fighting back against his colleagues in the cases that destroyed African-American hopes for generations: The Civil Rights Cases of 1883, which deprived Black people of access to railroads, inns and theaters; Plessy v. Ferguson, which endorsed the legal underpinnings of segregation; and the punishing Berea v. Kentucky, which gave the constitutional stamp of approval to a law banning interracial education even in private schools where people of all races wanted it. At this utterly dark moment in American law, John Marshall Harlan was a solitary beacon.
Robert Harlan maintained a semblance of political clout in Ohio, even managing to get elected to the Buckeye State legislature. But it was a time of rapidly declining fortunes for African-Americans. Robert got caught in the undertow. Even a person of his stunning resourcefulness, who had bounded from slavery to fame as a horseracing pioneer to wealth in the Gold Rush to influence as a post-Civil War political leader, had nowhere to turn in a system that drew ever-tightening walls around the Black community. The Black-owned businesses that Robert had bankrolled as early as the 1850s couldn’t survive without white customers; even the Republican Party, which had first embraced and then tolerated him in the belief that he could deliver African-American votes, lost its incentive after voting rights came under siege.
Now, as more and more newspapers from the 19th century become digitized—including the African American papers and racing-industry journals that tracked Robert like a celebrity—it’s easier to tell the story of his amazing life. It’s a global adventure tale for the ages, spanning oceans and covering some of the most important events in American history. But it comes wrapped in a mystery. The restoration of old news accounts answers the questions of who-what-where, but the whys remain unexplained.
That is certainly true in the case of the Harlans, as well. But what emerged from the parsing and assessing was something unexpected. It was not a story about roots or bloodlines. Nor was it fundamentally about exploitation, the pain of inequality, or even the way slavery perverted basic emotions; it was about how, despite all of those things, a feeling grew up between Robert and John Harlan that was authentic and organically human: respect.
Robert really believed in John—in his wisdom and fitness for the Supreme Court—when other people had reasons to doubt him. And despite the strange imbalances in their backgrounds and the pressures of a society eager to demean African Americans, John accepted Robert’s friendship and help in a spirit of equality.
Robert’s upbringing was recounted on many occasions in the journals of his time, though some details differ. Most agree, however, that he was born on a plantation in Mecklenburg County, Virginia, near where James Harlan of Kentucky, who was 16 at the time, had relatives.
Robert believed those words. He imagined his son, Robert James Harlan—whom he named after James Harlan—living on equal terms with the scions of privileged white families. Robert Jr. attended Cincinnati’s largely white Woodward High, where he was classmates with William Howard Taft, and went on to college and law school.
Robert raised his son almost on his own, and also served as a backstop for the extended Harlan family. When John’s older sister, Elizabeth, got married, Robert presented her with the most extravagant of presents, a handmade piano. Later, when one of John’s brothers, James Jr., became destitute and an alcoholic, Robert stepped in with multiple levels of support. “Bob Harlan has for two years been unusually kind to me, not, however, putting me under any obligation,” James Jr. reported to John.
In John’s case, Robert’s gift was political help—and he was ideally positioned to help John gain credibility with Republicans who doubted his conversion to their party after the Civil War. In the first dozen years after the surrender of the Confederacy, African-Americans were an important Republican constituency, and Northern Republicans were wary of Southern efforts to push Black people back into positions of subjugation.
In that atmosphere John became entangled in a scandal that jeopardized his national aspirations. It was 1871, and John was in the midst of a futile campaign for governor of Kentucky under the Republican banner. He loyally and steadfastly defended the national party even though it was held in contempt by much of the Bluegrass State. Still, many northerners could only remember the fact that he was from a slave-owning family and had criticized abolitionists before the war. Then came an incident in which John’s drunken cousin from his mother’s side of the family shot a prominent Black federal official in Washington. Though the motive may have been personal—the Black official was advising a person who wanted to sue the cousin over the sale of a faulty stove—many in the Black community saw the case in starkly racial terms.
At the time, judicial matters in Washington were handled by the federal government, and it happened that John’s good friend from Kentucky, Benjamin Bristow, was President Ulysses Grant’s solicitor general. When the lawyer for John’s cousin let it be known that he had appealed to John for help, many Black leaders smelled a rat. On the hustings in Kentucky, John seemed unaware of just how harmful to his future ambitions those rumors could be.
When a drunken cousin of John’s shot the renowned Black leader O.S.B. Wall, John’s reputation was tarnished. Robert stepped in to smooth the waters with Black leaders, preserving John’s image in the Republican Party. | O.S.B. Wall in Joseph T. Wilson’s The Black Phalanx: A History of the Negro Soldiers of the United States (1890).
Robert did, and rushed to the capital from his own home in Cincinnati to quell the damage. The victim, Orindatus S. B. Wall, was a Civil War veteran and fellow member of the African-American elite. Wall’s brother-in-law was John Mercer Langston, the founding dean of Howard Law School. Robert was friends with both of them, along with Amanda Wall, who believed her husband had been shot “because he was a colored man and held an office,” as Robert frankly reported to John.
Robert suggested the whole situation was more serious than John believed, noting that Langston—who had the clout to raise a ruckus—believed that “you had written to the president and … authorized other parties to draw on you for large amounts of money for the purpose of clearing” his cousin James Davenport.
Robert proposed a different approach. He defended John to Black leaders in Washington as guilty of nothing more than attempting to spare his family from embarrassment. But, Robert assured them, John had no illusions about the wrongness of his cousin’s actions. Robert, too, had known Davenport “almost from childhood” and described him as having been damaged by the war, in which he fought on the Union side. Robert then brokered a deal: If Davenport were to go free, the Harlan family would guarantee that the troubled man would never set foot in the District of Columbia again. Thus, he would plead guilty to assault with an intent to kill, but President Grant would pardon him on the grounds that he wasn’t in possession of his faculties. The Walls and Langstons kept quiet, and the Harlans satisfied their end of the bargain.
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