August 5, 2001
A Justice Champions a Witness to History
By LINDA GREENHOUSE
Harlan family photograph, courtesy of the Supreme Court Historical Society Malvina Shanklin Harlan wrote of her 55-year marriage to Supreme Court Justice John Marshall Harlan. They married on Dec. 23, 1856.
The Associated Press The efforts of Justice Ruth Bader Ginsburg led to the publication of the memoir of Malvina Harlan in The Journal of Supreme Court History.
ASHINGTON, Aug. 4 Like Abigail Adams a century before her, Malvina Harlan used astute powers of observation and a natural gift with words to leave a written legacy, one that illuminated not only her life and that of her famous husband, Justice John Marshall Harlan, but the momentous times in which they lived.
Abigail Adams's status as America's rediscovered sweetheart is hardly in doubt, thanks to David McCullough's best-selling biography, "John Adams" (870,000 copies in print). But Mrs. Adams may soon be sharing at least a bit of the historical spotlight with Mrs. Harlan. That is, if Justice Ruth Bader Ginsburg has her way.
Mrs. Harlan's memoir of life by her husband's side as the court and the country wrestled with the meaning of the Civil War has just been published in The Journal of Supreme Court History (circulation 6,000). Justice Ginsburg came upon the 200-page typed manuscript of the memoir several years ago when the Supreme Court Historical Society, which publishes the journal, invited her to give its annual lecture. As a leading women's rights lawyer before she became a judge, Justice Ginsburg had a longstanding interest in the lives of women.
She decided to heed Abigail Adams's famous injunction to "remember the ladies" by making Supreme Court wives the topic of her lecture. Researchers at the Library of Congress pointed Justice Ginsburg to Mrs. Harlan's unpublished memoir, titled "Some Memories of a Long Life, 1854- 1911," among the Harlan papers there. "I read it and it was terrific," Justice Ginsburg said in a recent interview in her chambers, at which it was evident that she felt a strong personal connection with this particular wife of a Supreme Court justice.
John Marshall Harlan, who served on the Supreme Court from 1877 until his death in 1911, is a major figure in its history. His eloquent dissents from the court's cramped interpretations of the meaning of equality for black citizens in the period after the Civil War put him many decades ahead of his time.
His grandson, also named John Marshall Harlan, served on the court as well, from 1955 until 1971, giving Malvina Harlan a unique position as the wife of one Supreme Court justice and the grandmother of another. But unlike the famous men in her life, Malvina Harlan is now all but unknown beyond the Harlan family and a small circle of scholars.
Written in a strong declarative style, full of anecdotes and occasional humor, the memoir conveys a sense of the historical significance of the events Mrs. Harlan witnessed. But what captured Justice Ginsburg's interest was the deeply personal story of a girl's transformation from a 17-year-old bride to a confident woman, a mother of six, who offered food and drink to the 200 to 300 visitors who thronged the Harlan residence every Monday afternoon, when the wives of Supreme Court justices were expected to be "at home" to Washington society.
"He had taken me into his life when I was still a child, having little or no confidence in myself and no knowledge of the world," Mrs. Harlan wrote in the memoir, explaining why she cherished the nickname "Old Woman," which her husband gave her early in their 55-year marriage. This "unromantic title was very sweet to my ears," Mrs. Harlan wrote, because it helped her "to take myself at his own estimate for he looked upon me as having the judgment and experience that only years can bring."
One incident in particular captured Justice Ginsburg's imagination. In 1892, Mrs. Harlan made her first trip to Europe when her husband was appointed to sit on an international arbitration tribunal. After the justice had to return to the Supreme Court, Mrs. Harlan stayed on in Europe, accepting with some trepidation an invitation from several American female friends to travel around Italy.
"I took my courage in both hands, and decided to go," she wrote. "This exhibition of independence was so new and surprising to my daughters that they called my Italian trip `Mother's Revolt.' " She had a grand time, even though she lacked the nerve to climb the Leaning Tower of Pisa, explaining, "I will confess that I was afraid to add my weight to the down side, for fear that it might be the `last straw on the camel's back.' "
Justice Ginsburg, in the interview, said, "This was a woman who was so timid at the beginning, and then when she was finally able to assert herself, she felt so proud." And then Justice Ginsburg, known for her coolly rational powers of legal analysis and persuasion, offered the surprising observation that Malvina Harlan reminded her of herself.
Reflecting on a year she spent in Sweden working on a comparative law project, Justice Ginsburg said, "When I went off to Sweden at the age of 29, I had never lived alone." The decision to go was not easy but the personal rewards were great, she said, recalling that as a young woman she had gone from her parents' home in Brooklyn to her college dormitory to marriage.
"I wanted to do it, but I was a little frightened by it," the justice said of the project. "There's a pride in being on one's own, overcoming that insecurity."
Justice Ginsburg determined to bring the memoir to a wider audience. But even with the justice behind it, that goal was not easy to accomplish. The project did not seem commercial enough to interest a publisher, even a university press. Finally the Supreme Court Historical Society, which had helped Justice Ginsburg look for a publisher, decided to devote an entire issue of its journal to the memoir. "I think it's so compelling, so intelligent," Clare Cushman, the journal's managing editor and herself a writer of Supreme Court biographies, said in an interview.
Justice Ginsburg's foreword to the issue calls publication of the memoir "cause for celebration." Linda Przybyszewski, a history professor at the University of Cincinnati, annotated the memoir with 207 footnotes and wrote an introduction. Her biography of Justice Harlan, "The Republic According to John Marshall Harlan," published in 1999, made extensive use of the memoir.
Malvina Shanklin Harlan was born into an antislavery family in Indiana in 1839 and was educated at girls' seminaries until the age of 16. The dates she used in her title, 1854-1911, were those from the time she met her future husband, an ambitious and well-connected Kentucky lawyer, through their years of marriage. The memoir is dated 1915, the year before she died.
The memoir begins with her describing her first glimpse of Mr. Harlan, from behind a window shade of her home in Evansville, Ind. She wrote of "his magnificent figure" striding down the street "as if the whole world belonged to him." From those words on, the memoir is very much a love story.
But it is much more. Among the more striking scenes are those that deal with slavery, race, and the Civil War and its consequences. Justice Harlan is best known for his solitary dissent from Plessy v. Ferguson, the court's 1896 decision that endorsed "separate but equal" racial segregation. "Our Constitution is colorblind, and neither knows nor tolerates classes among citizens," Justice Harlan said in his dissenting opinion. He was a person of stark contradictions, a slave owner who fought on the Union side in the Civil War and organized his own regiment, the 10th Kentucky Infantry.
Mrs. Harlan's first encounters with slavery, as a young bride, were highly disconcerting, as she had been sent off to marriage by her mother with the injunction to "remember, now, that his home is YOUR home; his people YOUR people; his interests YOUR interests."
Moving with her husband into her father-in-law's home in Frankfort, Ky., the young woman found that "there were almost as many slaves as there were members of the family," and was presented with a "special maid" of her own. The attitudes of both the Harlans toward the black people in their world was paternalistic to a degree that is jarring to a modern reader.
Beyond the boundaries of the memoir lies a complex and fascinating story. In discussing her father-in- law's "sympathy for the unfortunate race," Mrs. Harlan alluded to one Harlan slave who, after buying his freedom, struck it rich in the California gold rush.
One of Professor Przybyszewski's footnotes identifies him as Robert James Harlan, who, after making a fortune in California, became a successful businessman and politician in Ohio. She is now directing a genetic study, with the cooperation of male Harlan descendants, to test a theory that Robert and John Harlan were half-brothers.
In an interview, Professor Przybyszewski said that for historians seeking to understand the contradictions of Justice Harlan's life and jurisprudence, the significance of the memoir lay in the light it sheds on his complicated attitudes about race, long a subject of debate. "People looking for a late-20th- century liberal don't find one," Professor Przybyszewski said. What they do find and what various incidents in the memoir illuminate, she continued, is the belief that whites were both innately superior and, in the aftermath of the Civil War, uniquely obliged to make good on a national commitment to civic if not social equality for black people.
The most telling episode in the memoir, showing both Harlans' commitment to the ideal of equality, was labeled by Mrs. Harlan "An Inspiring Inkstand." As an avid collector of Americana, Justice Harlan had acquired a "quaint little inkstand" once owned by Chief Justice Roger B. Taney, the author of the Dred Scott decision, which denied slaves the rights of citizenship. Justice Harlan later promised the inkstand to a Taney descendant, a promise Mrs. Harlan considered rash and decided to thwart by hiding the inkstand.
A few months later, Justice Harlan was laboring over his solitary dissent from a group of five decisions known collectively as the Civil Rights Cases. In those cases, decided in 1883, the court struck down the Civil Rights Act of 1875, in which Congress had tried to guarantee equality of access to public accommodations.
Justice Harlan thought the majority opinion was profoundly wrong, but he was having trouble writing his dissenting opinion. "His thoughts refused to flow easily," Mrs. Harlan wrote. "He seemed to be in a quagmire of logic, precedent and law." To inspire him one Sunday morning, she removed the Taney inkstand from its hiding place, polished it, filled it with ink, and removed all the other inkstands from his desk. When he returned from church, she told him that she had given him "just what you need."
As she then told the story, making reference to Senator Charles Sumner of Massachusetts:
"The memory of the historic part that Taney's inkstand had played in the Dred Scott decision, in temporarily tightening the shackles of slavery upon the Negro race in antebellum days, seemed that morning to act like magic in clarifying my husband's thoughts in regard to the law that had been intended by Sumner to protect the recently emancipated slaves in the enjoyment of equal `civil rights.' His pen fairly flew on that day and, with the running start he then got, he soon finished his dissent."
That impassioned dissenting opinion today forms an important part of Justice Harlan's judicial legacy.
Malvina Harlan "understood the kernel of truth of what the Civil War meant, and what it meant to both of them," Professor Przybyszewski said. At academic conferences, the professor said, she is often challenged to explain why the wives of historical figures are worth studying.
To that question, Malvina Harlan's memoir is the answer, she said, adding, "Their husbands couldn't have done it without them."
Copyright 2001 The New York Times Company