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Yesterday, in the midst of a Senate confirmation hearing for Judge Ketanji Brown Jackson, who has been nominated to serve on the U.S. Supreme Court, the question was posed: “What do you think is the purpose of a dissent?” In her response, Judge Jackson made reference to a famous dissenting opinion by a noted Presbyterian jurist whom we have written about previously on Log College Press. She said,
There are actually many justices in history who have used the dissent mechanism to discuss the law in ways that others find, over time, to be more persuasive,” Jackson said. “I’m thinking of the first Justice Harlan, who dissented famously in Plessy v. Ferguson [1896]. He dissented alone. All of the other justices agreed with the proposition of ‘separate but equal,’ and he said ‘no’ in a dissent. And his dissent generations later became … the blueprint for Justice Marshall to make arguments that led to Brown v. Board [of Education of Topeka, 1954].
When Justice Harlan dissented from the Plessy “separate but equal” doctrine, he wrote:
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. In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.
Fifty-eight years later, in Brown v. Board of Education, the U.S. Supreme Court repudiated Plessy in favor of the principle that racial segregation, even regarding otherwise equal facilities, is unjust, and finally affirmed the dissenting opinion of Justice Harlan, giving encouragement to those who, taking the long view, and trusting in God, believe that justice and truth will ultimately prevail.
