hearing you talk and when we read these sections of the book, you yet a vision of what the country could have been like had, had a man like that been given a chance, had plessy not happened, had separate but equal never become the law of the land. i mean -- >> yeah. >> it's just, it's striking. and so tell us what happened to him at the end of his life after that really devastating supreme court decision. >> well, the rest of his life was certainly not, not a failure. we only got into that period of about 12 years when black rights were defended by the supreme court. you know, he rosemeadly to prominence -- rose immediately to h prominence at a time when, again, back votes were the difference between republicans winning and losing. ohio, which was the most important state at that time. so he was able to get -- for himself and others. he was able to play a role in creatinger a national african-american leadership with people like frederick douglass where there would be conventions every year and meetings where they would put forward a national political -- he became personal friends with people hlike ulysses grant and rutherford b. hayes. he entertained lavishly. he did things like he started the first all-back national guard battalion in cincinnati. all was not always peaceful on the political frontwa in that there were other african-american leaders who felt that he was too beholden to the republican party. there was a series of debates he had with sort of a rival but who was sometimes a friend named peter clarkme who believed that neither republicans nor democrat cans were ever going to serve black interests and that they needed to be savvy and negotiate with whites as a unified force. robert harlan took the party line in that, many that case. but it was almost like a lip done/douglass style debate between them in ohio. after 1876 there was a consensus inht the white community that sacrificing blacks was -- allow business to continue as normal. whitee southerners were never going to accept the equality of african-americans, and white northerners stopped trying eventually. because voting rights were somewhat more secure in ohio than in other states, the black community there retained some power, and robert harlan retained some power, and he even managed topo get elected to the state legislature. so it wasn't like there was a total barrier, but you could see in the arc of his life after 87, that he was sort -- it was sort of a slow period of disillusionment and loss. you know, there started to be more racial incidents. there was a terrible confrontation between the black national guardsmen and a group of white democrats on, before an election eve that almost became a legendary riot and partly because of robert harlan's efforts. his son, who was a lawyer and a prominent man himself, went to a theater, took his children to a birthday party to a theater many cincinnati and got -- in cincinnati and got forced to go up to the balcony and refused. and so, you know, here he was mt. same city where he's serving as state representative, his grandchildren are plaintiffs ina a case against racial segregation. so it was a period of, you know, decline and disappointment. nonetheless, he lived a buoyant, optimistic high, and there's so many more anecdotes you could throw in there. this was a globetrotter who, you know, was gambling with general santa ana in cuba and visiting paris and all this kind of stuff. so he was an amazing man. but what's notable is his descendants, all of whom were prominent in the african-american community, his grandson -- he were real sort of aristocracy within the black community, but there was no money in the black community. so they all sort of suffered in their own way, you know, prominent businesses started to tie out, and, you know, struggles foror money and that kind of thing. and it just, you can see how segregation constrained black -- [inaudible] >> so i want to bring in some of the questions from the audience here. edward asks, as a lone dissenter, how well or not did harlan get along with his colleagues on the court? >> that's a fascinating question, and there sort of are two answers. i think that he got along pretty well in terms of the basic social etiquette of the job, and he even occasionally there's a story of him sharing an apple on a streetcar with justice mckenna who was a frequent, frequently in the majority while he was dissenting. on the other hand, i think it was known that there was less decorum on the court generally in those those days. when the income tax was ruled unconstitutional, there was some commentary about how he was -- [inaudible] shaking his fist at justice fields who was an antagonist at various points. so i think some supreme court historians today would say, well, you know, it was a little wild west back then on court. they weren't entirely practicing decorum. of interestingly also, people in the black community who pay more attention to john marshall harlan than any of whites did, people like frederick douglass would write about his tremendous courage and his willingness to stand up to all of his colleagues, stand up to the white community. and that's a consistent theme among, among black people. i will say there's nothing in his letters or many his -- or in his, the written record that's available now to show that he was himself ostracized for these positions, that he was receiving death threats, aha he was getting, youat know, his family was being harassed. today may have been and chose not to collect those letters or -- but but the there isn't any evidence of hem. which leads me to believe many two things. one is because he was a lone dissenter, no one in the white community felt threatened by him. he was the only one, he was ec sent are rick, you know, somebody unlettenning but crazy -- unthreatening but crazy in their minds. in the black community, there was this assumption that whites were many collusion because whites sort of were in political collusion and a lot of these northerners were closing their eyes and voting in cases where they knew they were doing the right thing, but they thought it was right for the country to try to repair relations with the south. and yet, you know, the black community may have seen it as a more insidious conspiracy than itor actually felt to someone le john marshall harlan. >> there's another question that said wasn't there a gratuitous anti-asian -- [inaudible] in harlan's dissent in policely sr.s -- plessy v. ferguson? >> i think that's a fair comment, but it's part of a more complicated story. there's a line in harlan's famous dissent in plessy v. ferguson. this is by far his most famous dissent, and it's one that is frequently quoted today. it includes many sort of iconic lines, the constitution is color blind and neither knows or tolerates -- [inaudible] and the homeless is the peer of the most powerful. there's no caste here. at another point in the dissent, he says there is a race that is so different from our own or martialty or manager, so different from our own, whatever, speaking of chinese race, that we conot even allow them in this country. and then he makes point that, nonetheless, chinese people are allowed in the white code and african-americans were not. now, i think in part this was a reasonable legal point because the state of louisiana was saying everyone's treated equally here, there's one place forte blacks, one place for whites. and harlan was making the point that everyone knows purpose to separate out blacks is not to separate whites or anything, and one reason we know is there's no problem when chinese get in. there was separately a law reviewer article from about 25 years ago from somebody who i know who has read my book and blurbedd the book even, gabriel chen who sort of -- how harlan was not the hero of chinese that he was to african-americans. and i think if you keep it just at that point, that's true. finish i don't think there's any evidence that he had any sort of particulart animus towards chinese. i don't think that, i mean, there were some counter-examples. this was a supreme court case where the, a terrible case where a gang of whites in california, you know, chased and harassed a group of chinese so they ended up taking u refuge on a housebot on river that cap capsizedded and they died. and when they were, when they were prosecuted, the gang was prosecuted under the civil rights a act, they claimed that the language of the act said citizens, used the term citizens, and the chinese were not citizens. >> wow. >> nonetheless, they were in this country as part of a treaty thatpa said that they would be citizens.actly like none theless, the court majority could not see through to that citizen being equal and all that, and so they voided the prosecution. harlan took a very forceful -- [inaudible] in favor of the chinese victims in saying that, like, you know, the treaty says they be treated like citizens, therefore, these civill rights approximates -- protections need to be extended. it's a very mixed picture, and i think it's fair to say not only was he a hero to african-americans, but he stood up for hawaiians and puerto ricans, native americans. but the record in the chinese case is a little more difficult. >> so sarah is asking do we know much about his influences outside of the possible familial relationship something is so can you kind of tell us -- >> he had, he had other contacts with african-americans because he had grown up in a slave-owning family x and he had a, you know, he had a -- [inaudible] who was african-american. there's an incident where the daughter of his wet nurse had, her dress caught on fire x he jumped to try to save her and all that and ends up almost dying himself of burns. >> but there must have been -- [inaudible] there that that must have been true of a lot of white southerners. they were raised by black women. >> they were. and beyond that he also had a deep respect for frederick doug las. -- frederick douglass. he had a longstanding relationship with frederick douglass. his eldest daughter, edith, taught in the bethel industrial school in washington which was a school for the children of freed men and women to teach them industrial skills and hope to get them jobs. andem it was her charitable interest, but then she died of typhoid fever at age 26. and harlan wrote an anguished letter where he said every minute of every day is going to be devoted to preserving her legacy. she was really the heart and soul of the family. so i think he was influenced by her care and concern for african-american children. later in his life he spoke frequently at washington's met to propoll tan ame -- metro propoll tan, and he met, he would meet regularly with black lawyers. there was a case that, a horrific lynching case that he intervened many pretty much single-handedly to try to make sure that city officials who had allowed this legislation to take place were prosecuted. so his efforts on behalf of african-americans went way, way beyond his relationship with robert harlaning. so clearly, he, you know, he was committed to the equality of african-americans, and he believed that this was a way of repairing the damage -- [inaudible] and he, he came to believe that inequality under the law was what caused the civil war, it's what almost destroyed the american experiment and republican government. and so he was deeply committed to enforcing equality. and i think that also informed some of his views in the economic cases. because of dred scott, i think cred scott was the moment when he believe -- dred scott was the moment when he believed the civil war was inevitable and all that he had worked for was falling apart. so he understood what it meant for the supreme court to get it wrong. so unlike a lot of these other justices who it was sort of a theoretical challenge, he really looked at these cases in terms of who was being harmed, who was beingwh helped, wow how would ts affect the country 50 years from now. and all of that was in his opinions. >> we've got anonymous questioner who says can you comment on the way harlan's color blind constitution, poem formerly the bee con of civil rights, mainly to support claims of reverseof discrimination, affirmative action and similar policies. >> there's no question that that is an argument, that is anti-affirmative action forces it made for a long time. it started with william bradford refolds who was the head of the civil rights division under the reagan administration and began a period of retrenchment on some civil rights protections. he wrote an influential article in "the new york times" sort of saying that, you know, harlan is a hero, harlan got it right. he said the constitution's color blind, but color blind means no affirmative action. and that led to some, you know, angry feelings, obviously, from opponents. thurgood marshall, who was on the court then and was always an admirer of harlan's and put harlan's dissent of plessy -- [inaudible] thurgood marshall defended harlan and said the constitution is color blind, and if people would listen to harlan, we wouldn't have had 70 years in which it wasn't color blind, which is why we need affirmative action. i think it's a little bit of a semantical kind of debate. he didn't say, therefore, we will rule out any race-based remedies for past discrimination. i think that, you know, the challenge presented by affirmative action is an obvious one. but if harlan's comment about the constitution is color blind were not such a powerful statement, people would be arguing just about the concept of equality, you know? if does equality allow for racial considerations or like affirmative action. >> all right. we have -- are there any useful -- stephen, are there any useful parallels to be drawn with the great dissenter of the rehnquist and roberts courts, ruth bader ginsburg, which -- >> there are a lot of parallels. ruth bader ginsburg has cited harlan as an influence, and she very late in life when he really embraced the role of dissenter, she started praising great dissents from the past and would talk frequently about a harlan. she would mention benjamin curtis also, a massachusetts justice, who was the justice i had mentioned who objected to tred scott. dred scott. but i think that harlan presents a sense of hope or offers a sense of hope to someone like fans or people like -- who are fans of ruth bader ginsburg because, you know, he showed how defense in one era become majority opinions in another era and how those very documents and those very argues and those very records that are preserved can become part of the decision-making process in the next generation. and there's no one method for the supreme court by which the supreme court can change its mind and the law can change. but if you look at the history of harlan's dissents, almost all these mets combined. -- methods. let's look at the antitrust cases, the sherman antitrust act being declared unconstitutional. the supreme court found a way to say, no, they weren't a 40 knoply. harlan was the seoul dissenter -- sole dissenter. pretty much within five years the same justices who had ruled the other way began to kind of see the light are. i don't know that it was so much harlan that was persuading them, it may have been things that were happening in the country that was persuading them. but there are examples of the same people really changing theirli mind. oliver wendell holmes changed his mind onol the first amendme. so within harlan's lifetime, hay greatly relaxed the rules and allowedded for more trust actions. but it took maybe 15 or 20 years until they got to a position where they were really allowing antitrust. that's a very positive example. mt. mechanic tax days -- in the income tax case which overruled a hundred years of precedent and, you know, a case where everyone was rolling their eyes afterwards, it took a constitutional amendment to allow the income tax. but to get the process rolling, the big obstacle was less getting the states to ratify it as to get congress, which was full of rich people in especially the senate, to accept it. and this congressman who would later to go on to be secretary of state under franklin roosevelt, he would read harlan's dissent on the floor of the house as a way of showing how wrong headedded the original decision was andnd how important it was for an amendment to -- remove it and overrule it. so that's one example. the locker case gets overruled in time because of franklin roosevelt's threat to the e expand the court. the so-called switch in time and save nine. harlan, you know, in 1965, 1954, 1965, both of harlan's defenses in plessy very ferguson were part of the actual arguments in the brown case in '54, and his dissents in the civil rights cases ofof 1883 were parts of te arguments that overturned that in 1965. >> [inaudible] [laughter] >> it came in so many different forms. but nonetheless, if you are ruth bader ginsburg in the haas years of your life, yes, you can apply benjamin curtis for taking a principled stand and leaving the court after dred scott, but harlan is a actually the better example in terms of how your actual views can become participant of the law. >> we've got three more questions and only twelve more minutes, so let me get through these, and then i want to close out with sort of a thought about to to today and bringing this book forward. >> we'll do a lightning round. i'll give a quicker answer. [laughter] >> ellen, a former -- who i concern we love, is now a fantastic reporter for "the new york times," writes harlan was from kentucky, not a northern state or a southern state. to what tent tent did this inform his legal view and school of thought? if was he singular? if. >> there was a school of thought from the border states, and he frequently paid tribute to his professors at transylvania university law school for putting that view forward. there were some things that were problematic in that school of thought, and i think this also might be a critique of some of harlan's views in that they were, the elites in kentucky were constitutional unionists; that is, they believedt. in a national -- where the u.s. constitution is not sort of federal single destiny awaited the united states. the part of that is that they were in love with the idea that the united states was a unique experiment and that people in america were only place where people were not under the thumb of authority. and it made them skeptical of immigrants. so some of those professors that he was admiring in tran sill vain ya university were also people who joined the know-nothing party and also briefly associated with -- [inaudible] that were known for their anti-catholic feelings and many some cases, you know, anti-british and anyone who was living under an authoritarian force. the theory, the legal theory being that they didn't understand democracy. they were subservient. that, you know, that's probably too literal a kind of question. i thinkat the kentucky influence came in a lot of ways. we had mentioned earlier it's different economies not based on capital investments and, you know, tremendous imbalances of wealth gave him sort of a different perspective. and, you know, while its racial situation was horrendous, there was interaction with african-americans which none of the northern justices had at all. and the fact that the ku klux klan was asserting itself so strongly in kentucky, i think, also gave some of a moral impetition -- impetus. >> all right. nancy, i understand that he was a fundamentalist christian of the time. what do you know about how his faith may have influenced his thoughts and decision? >> this is a difficult question to answer, and i probably shy it a little too much becausee i think theology's a very difficultuc to grasp. obviously, i don't have a ph.d. in theolo