By Paul A. Tenkotte, PhD
Special to NKyTribune
It stands today as one of the most consequential — and most disastrously reasoned—decisions ever issued by the United States Supreme Court. On May 18, 1896, in “Plessy v. Ferguson,” the Court upheld a Louisiana statute requiring racially segregated railroad cars, ruling that “separate but equal” accommodations did not violate the Thirteenth or Fourteenth Amendments.
The decision was handed down by a 7–1 majority. Justice John Marshall Harlan of Kentucky issued the lone dissent, while associate justice David J. Brewer (1837–1910) did not participate. The Court at the time was led by Chief Justice Melville Fuller (1833–1910), a Democrat appointed by President Grover Cleveland (D) in 1888. Fuller served as chief justice until his death in 1910. His tenure was marked by generally conservative jurisprudence that emphasized limited federal authority and the primacy of states’ rights. Earlier in his career, as a one‑term member of the Illinois General Assembly during the Civil War, Fuller had opposed several of President Abraham Lincoln’s policies—an early indication of the states’‑rights orientation that would later characterize his Court.
The Fuller Court’s associate justices were, by and large, similarly conservative in their political views and cultural sensibilities. Its senior member was Stephen Johnson Field (1816–1899), appointed by President Abraham Lincoln in 1863. Though born in Connecticut, raised in Massachusetts, and admitted to the bar in New York, Field headed west during the tumultuous years of the California Gold Rush. He served across both the Taney and Chase Courts and ultimately became the then-longestserving associate justice in Supreme Court history — a record later surpassed by William O. Douglas (1898–1980).
Edward Douglass White Jr. (1845–1921), appointed by President Grover Cleveland (D), served as an associate justice from 1884 to 1910, and then as chief justice from 1910 until his death in 1921. White was born into privilege as the son of a prominent Louisiana sugar planter and state governor. He received an elite education — first at what is now Jesuit High School in New Orleans, then at Mount St. Mary’s College in Maryland, and later at Georgetown University in Washington, DC. When the Civil War erupted, however, he left Georgetown, returned to Louisiana, and enlisted in the Confederate army. In 1910, Ohio-born President William Howard Taft, a Republican, later elevated White to the position of chief justice.
Another prominent member of the Fuller Court was Rufus W. Peckham (1838–1909), a lifelong Democrat from Albany, New York, whom President Grover Cleveland appointed to the Supreme Court. Peckham was firmly conservative in his judicial philosophy. He is best remembered for writing the majority opinion in “Lochner v. New York” (1905), the 5–4 decision striking down a New York law that barred employers from requiring bakers to work more than sixty hours per week. The Court held that the statute violated the Fourteenth Amendment’s Due Process Clause, characterizing it as an “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract.” For decades afterward, Lochner shaped the Court’s approach to economic regulation, predisposing it toward invalidating Progressive Era labor protections as unconstitutional intrusions on contractual freedom.
George Shiras Jr. (1832–1924), a lifelong figure of the Ohio River Watershed, was born in Pittsburgh, Pennsylvania. He studied at Ohio University in Athens before completing his degree at Yale. In 1892, Ohio-born President Benjamin Harrison appointed him to the U.S. Supreme Court as an associate justice. A judicial conservative, Shiras joined the Fuller Court’s majority in “Pollock v. Farmers’ Loan & Trust Co.” (1895), which struck down the federal income tax as unconstitutional—a decision later overturned by the ratification of the Sixteenth Amendment, establishing the modern federal income tax system.
Horace Gray (1828–1902), born in Boston, Massachusetts, graduated from Harvard Law School and went on to practice in his hometown. President Chester A. Arthur (R) appointed him to the U.S. Supreme Court as an associate justice in 1881. Gray is best remembered for writing the 6–2 majority opinion in “United States v. Wong Kim Ark” (1898), the landmark decision affirming birthright citizenship under the Fourteenth Amendment.
Henry Billings Brown (1836–1913) authored the Court’s majority opinion in “Plessy v. Ferguson.” Born in Massachusetts to a Puritan family with roots in New England dating back to the early 1600s, he attended Yale, spent a year traveling through Europe, and then pursued legal studies at both Yale and Harvard. After relocating to Michigan, Brown established a law practice in Detroit. President Benjamin Harrison appointed him to the U.S. Supreme Court as an associate justice in 1890.
John Marshall Harlan (1833–1911) authored the lone dissent in Plessy v. Ferguson and was widely regarded as the Fuller Court’s most progressive voice — earning him the enduring title “The Great Dissenter.” Born into a slaveholding family in Boyle County, Kentucky, Harlan graduated from Centre College and studied law at Transylvania University in Lexington. A staunch Unionist during the Civil War, he organized the 10th Kentucky Infantry, later served as Kentucky’s attorney general, and eventually became a leading figure in the state’s Republican Party.
When Ohio-born President Rutherford B. Hayes appointed John Marshall Harlan to the Supreme Court in 1877, the nomination was widely seen as a gesture toward Southern interests unsettled by the disputed presidential election of 1876 and its resolution in the Compromise of 1877. Yet Harlan’s Southern background proved no predictor of his jurisprudence. On the Court, he emerged as a vigorous defender of the Thirteenth, Fourteenth, and Fifteenth Amendments, a champion of civil rights for African Americans and others, and an advocate for a more assertive federal role in protecting those rights.
Two years before Harlan joined the Court, Ohioborn President Ulysses S. Grant signed into law the Civil Rights Act of 1875, which prohibited racial discrimination in public accommodations such as hotels, theaters, and transportation. But in 1883, the Supreme Court — ruling on five consolidated cases known collectively as the “Civil Rights Cases” — struck down the Act in an 8–1 decision. The judgment dealt a major blow to Reconstruction, effectively hollowing out the protections of the Thirteenth and Fourteenth Amendments for decades. John Marshall Harlan stood alone in dissent.
What led John Marshall Harlan — once a firm defender of slavery and an early critic of the Reconstruction Amendments — to embrace the Republican Party and ultimately emerge as a champion of African-American civil rights? Charles Thompson, in his article “Plessy v. Ferguson: Harlan’s Great Dissent,” considers several possible influences. Yet the most compelling explanation comes from Harlan himself, expressed in an 1871 statement that reveals the beginnings of his transformation:
“I have lived long enough to feel and declare that . . . the most perfect despotism that ever existed on this earth was the institution of African slavery. . . . With slavery it was death or tribute. . . . It knew no compromise, it tolerated no middle course. I rejoice that it is gone.” As to his spectacular flip-flop on the issue, Harlan said: “Let it be said that I am right rather than consistent” (Charles Thompson, “Plessy v. Ferguson: Harlan’s Great Dissent,” Louis D. Brandeis School of Law Library, University of Louisville).
John Marshall Harlan’s political and moral evolution became one of the most consequential transformations in American judicial history. In his lone dissent in Plessy v. Ferguson, Harlan declared that:
But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. (Plessy v. Ferguson, 163 U.S. 537, 1896)
Harlan’s insistence on a “colorblind” Constitution placed him decades ahead of his colleagues on the Court. He also offered a grimly accurate prediction of the damage “Plessy v. Ferguson” would inflict in the years to come, warning that the decision would prove “quite as pernicious as the decision made by this tribunal in the ‘Dred Scott Case.'”
John Marshall Harlan of Kentucky was right. The Supreme Court’s 1896 ruling in “Plessy v. Ferguson” opened the door to deeper discrimination against Black Americans, emboldened racial violence, and ushered in decades of regression in the struggle for full inclusion in the nation’s democratic republican system. Harlan—himself a native of the Ohio River Watershed—did everything he could to persuade his colleagues, but his was a solitary voice.
By contrast, the conservative majority on the Fuller Court remained deeply skeptical of federal authority, resisting both economic regulation and expansion of federal power into areas they viewed as the domain of the states. In this respect, the Court mirrored the broader conservatism—and the outsized national influence—of political leadership rooted in the Ohio River Watershed during the late nineteenth century.
Indeed, within the Court itself, those regional and ideological currents were unmistakable: Stephen J. Field, appointed by Lincoln; Henry Billings Brown, nominated by Harrison; George Shiras Jr., a Pittsburgh native and another Harrison appointee; and Edward Douglass White Jr., later appointed as chief justice by Taft. In many ways, the Court was firmly stacked in the conservative direction.
Paul A. Tenkotte, PhD is editor of the “Our Rich History” weekly series and Professor of History at Northern Kentucky University (NKU). To browse more than ten years of past columns, click here. Tenkotte also serves as Director of the ORVILLE Project (Ohio River Valley Innovation Library and Learning Engagement). For more information see orvillelearning.org/. He can be contacted at tenkottep@nku.edu .