Justice Goodwin Liu on Justice Harlan (Among Other Things)

Today I had the opportunity to hear an address by Associate Justice Goodwin Liu of the California Supreme Court at the City Club of Cleveland. Justice Liu, as some may recall, was nominated to a seat on the U.S. Court of Appeals for the Ninth Circuit by President Obama. Then-Professor Liu was filibustered in the Senate, but is likely to be on President Obama’s short list for the U.S. Supreme Court should there is another vacancy before 2017.  Justice Liu’s remarks, part of the Sidney D. Josephs Memorial Forum on the Bill of Rights, focused on the life and legacy of the first Justice John Marshall Harlan.  I have summarized his remarks below the fold.

Justice Liu began his remarks noting the common tendency to evaluate judges in reductionist terms, such as by attaching political labels that fail to capture the nuances of particular judicial philosophies.  He acknowledged that he may have fallen prey to this tendency himself.  This was a prelude to his discussion of Justice John Marshall Harlan and his effort to assess the totality of Harlan’s record as a judge and politician.  Though there is much to admire about Justice Harlan, he was anything but perfect.  If we are to admire a judge, Justice Liu suggested, we should confront the full record.

Justice Liu first became interested in Justice Harlan as a law student after reading Harlan’s lone dissent in Plessy v. Ferguson.  This canonical opinion continues to reverberate in American law.  In 2007, for example, Harlan’s dissent was cited approvingly by four separate opinions in Parents Involved in Community Schools v. Seattle School Dist. No. 1 on all sides of the issue at hand.  Justice Thomas, for his part, not only cited Harlan’s Plessy dissent, but noted this opinion had served as the late Justice Thurgood Marshall’s “’Bible’ to which he turned during his most depressed moments” in order to buoy his spirits.

Plessy was hardly the only case in which Justice Harlan authored an admirable dissent, Liu noted. He also authored solo dissents in the Civil Rights Cases and Berea College v. Kentucky, dissented in E.C. Knight, several of the Insular cases, and Lochner v. New York.  In many respects, Liu noted, Harlan’s dissenting opinions in these cases have been vindicated, at least insofar as they have been embraced by subsequent courts.

Harlan’s record is not unimpeachable, however.  While dissenting in Plessy, he was not always on the side of civil rights for blacks, as he authored the opinion for the Court in Cumming v. Richmond County Board of Education (upholding de jure school segregation) and joined the Court in Pace v. Alabama, upholding Alabama’s anti-miscegenation statute.  He also notably marred his Plessy dissent with his disparaging reference to Chinese immigrants and joined Justice Fuller’s dissent in United States v. Wong Kim Ark.

To fully appreciate Harlan, Justice Liu counseled, one has to take the measure of the full man, and not view a single opinion or decision in isolation.  One should also look at his life beyond the Court.

Harlan was something an unlikely civil rights icon.  He was raised by a prominent slaveowning family in Kentucky.  His father apparently considered himself a “benevolent slaveowner” and likely fathered Harlan’s half-brother with one of the family slaves.  He ran for Congress as a Whig in 1859, at which time he staunchly defended “property rights” in slaves and fervently opposed abolition.  He was an equally fervent nationalist, however, so he nonetheless opposed secession and joined the Union Army.  His military experience, fighting alongside men of various backgrounds and creeds, apparently tempered his nativism, at least to some degree.

In 1863 he was elected Attorney General of Kentucky, on a pro-war ticket.  Though he supported the Union cause, he had no brief against slavery, and he tried to “carve a middle road,” in Liu’s words, between those who supported the Union and slave owners.  Thus he opposed the 13th and 14th Amendments in part due to their effect on slave states, such as Kentucky, that had never left the Union, but he found few takers to his cause.  When this effort to pave a middle path failed, he cast his lot with Republicans, and made peace with the Reconstruction Amendments he had previously opposed.  Running for Governor in 1871 he announced he had changed his mind on the rights of free blacks, and now supported full enforcement of the Reconstruction Amendment.  “Let it be said that I am right, rather than consistent,” Harlan remarked.

Harlan ran unsuccessfully for Governor of Kentucky in 1871 and 1875, but his stock rose within the Republican Party his political defeats notwithstanding. As a consequence, Rutherford B. Hayes nominated him to the Supreme Court in 1877. At the time, some were suspicious of Harlan’s late conversion to the Republican cause of civil rights, but he was confirmed nonetheless.

While Harlan is best known today for his Plessy dissent, Harlan was apparently more proud of his dissent in the Civil Rights Cases. Noted Justice Liu, this opinion was “remarkable for its expansive constitutional vision.” Among other things, Liu noted Harlan’s invocation of the 13th Amendment and his argument that the federal government’s power to protect the civil rights of free blacks had to be as broad as the antebellum Congress’s ability to protect slavery, as it had through the Fugitive Slave Acts and other measures. In Harlan’s view the 13th and 14th Amendments, taken together, promised more than individual freedom. They guaranteed membership in the national polity as citizens. Noted Liu, this notion of citizenship was central to Harlan’s vision of racial equality.

Despite Harlan’s comparatively progressive view of racial equality, Harlan was not particularly sympathetic to the rights of immigrants. Liu suggested this was because Harlan remained a nationalist. Thus he vigorously supported extending constitutional protections to all citizens, without regard to race, but was willing to exclude those – such as Chinese immigrants — who were outsiders.

Harlan’s progressive Plessy and Civil Rights Cases dissents notwithstanding, Liu noted Harlan did not reject contemporary claims of racial identity, or perhaps even racial superioriy (as suggested by some passages of his Plessy dissent). Liu suggested this understanding of Harlan could explain his refusal to challenge contemporary taboos against interracial sexual relations and interracial schooling in cases like Cumming and Pace. The promise of citizenship did not necessarily include an end to separation or elimination of caste. Yet perhaps it is notable, Liu suggested, that Harlan did not view his Cumming opinion as among his best work. He elected to exclude this opinion in a collected volume of his work at the end of his life.

Harlan’s views surely fall short of contemporary notions of racial equality, but Liu suggested Harlan’s views should be evaluated as against his contemporaries, and not by modern standards. In this regard, his lone dissents on civil rights were remarkable given how unpopular such views were among his contemporaries, including his colleagues on the Court. As Reconstruction ended, racist and segregationist views were on the rise.

Liu also suggested that Harlan should be judged based upon the total arc of his life – and the distance traveled from his upbringing in a slave-holding home to his days on the Court. So while we should not forget Harlan’s flaws, Liu concluded, there was much in Harlan’s life and legacy to admire.

During the question and answer session, Liu was asked about Justice Harlan, his work as a judge, and broader issues facing the judiciary.  Challenged on whether his assessment of Harlan was too forgiving, given the abolitionist tradition that had preceded him.  Should Harlan have pushed beyond those who came before him?  Justice Liu noted that Justice Harlan was a judge, and “Judges are not philosophers.”  Harlan had to confront the cases before him given the law of the time.  Further, Liu noted, by the time Harlan was on the court, segregationist views were on the rise and the influence of pro-civil rights reconstruction legislators was on the wane.  As mild as his dissents may have been to modern readers, his opposition to state-mandated segregation was out of the mainstream at the time.  Justice Harlan’s record was “mixed” to be sure, Justice Liu noted, but his opinions were “courageous for the time.”

Asked about the problem of judicial vacancies in federal courts, Liu did not express much hope for improving the confirmation process. “The unfortunate thing is that it is not a problem that captures the public’s imagination,” he remarked.  While lawyers and academically certainly care about vacancies in the federal judiciary, such vacancies do not have the same salience to the public at large – in contrast with state courts that tend to effect more people more directly.

Liu added that the confirmation process is “a political process” and was designed to be political by the Constitution.  So there is no way to remove politics from confirmation fights and, in Liu’s view, Senators should be free to support or oppose nominees for any reason whatsoever.  The problem, in Liu’s mind, is the de facto requirement of 60 votes for confirmation, not the political evaluation of nominees.

Asked if he thinks any of his decisions as a judge were wrong, Liu noted he has only been on the court for a year and a half.  He added that it would be hubris to never question or second-guess one’s own prior decisions.  He admitted encountering many cases in his short time on the court that were closer than he might have expected – and far closer than the resulting opinions may suggest.  Judicial opinions, after all, are supposed to convince the reader that a case was correctly decided, and don’t always acknowledge the closeness of the question at hand.  Justice Liu also noted that judges, particularly those on courts of last resort, should seek to ensure continuity in the law and try to “do no harm” in their decisions.

Asked about the doctrine of enumerated powers and whether it was possible to reconcile the limited view of federal power articulated in The Federalist  with modern Supreme Court doctrines, Liu demurred.  “If I had an answer to that I’d have written a book,” he quipped, observing the question of federal power is an enduring constitutional and political debate.  Despite the language of enumeration, he noted, “there are certain economic realities that have shifted our understanding of these words over time,” such as the increasingly integrated economy. Nonetheless he noted that it is a hotly debated proposition whether courts should rely more on founding era understandings or contemporary realities.

Asked about what he would want his judicial legacy to be, Justice Liu said he felt it was too soon to think along those lines.  That would require seeing the forest, whereas Liu said he was still “stuck in the trees,” dealing with the steady stream of cases that come before the court.

Overall, Liu’s remarks were thoughtful, informative and interesting (as were his off-the-cuff remarks at breakfast with some Case faculty and students this morning).  They scarcely hinted at the conflict and controversy that surrounded his nomination to the Ninth Circuit — and that will almost certainly resurface should he be nominated to a higher court.