Sunday, November 7, 2021
Sarah Isgur set off a fun, even if inconsequential, debate among the Supreme Court cognoscenti when she wrote an essay in Politico ("Name the Supreme Court After a Legendary Justice") that the building that houses the highest court in the land be named after the first Justice John Marshall Harlan. Isgur, a former Trump Justice Department spokesperson and host of a legal podcast, Advisory Opinions for the Dispatch, argued that the Supreme Court building and the court it houses “need a story to help Americans make sense of them.”
In suggesting Harlan’s name, she recognized that he opposed the Emancipation Proclamation and the Thirteenth Amendment, but suggested that his transformation into what she called the “greatest defender of racial equality in court history . . . shows how an intense and unfaltering faith in the Constitution can chart a path to enlightenment.”
Unlike the otherwise unnamed White House and Capitol, she contends that the building’s “symbolic anonymity” no longer serves as a “source of strength” as it once did. Naming the building, she writes, would help overcome a loss of “shared sense” about “what the Supreme Court stands for and what it should represent.”
The debate Isgur set off is fun, in part, because it is provocative. Should the citadel of justice for the nation bear any individual’s name? And, if so, is Harlan more appropriate than Chief Justice John Marshall or some other celebrated figure from American legal history? And, finally, would naming the building really help people understand the role of the Court or the rule of law more generally? The debate is also likely inconsequential because there really is no prospect that the Court’s building would be renamed to honor an individual.
My own view is that no renaming should take place. We take pride in being a nation of laws, not of men. Part of the problem in the public’s recent decline in faith in the Supreme Court comes precisely because people, often with some justification, think the justices maintain partisan allegiances to those who put them there and render decisions based on political leanings, rather than the application of some immutable law. (Harlan, incidentally, was very much a partisan). Naming the building after an individual will not change those perceptions or the public’s reactions to rulings that they find politically unpalatable or legally questionable. Nor is Harlan’s story, as interesting as it is, the story of either the Supreme Court or American law. Instead, I suggest that the Court’s decisions embody a wealth of stories worthy of being told that provide real insight into its operation.
Despite my opposition to naming the building after an individual, the suggestion provided an opportunity for more people to think about Harlan. There is no doubt he cut a colorful figure on the Court, where Justice Oliver Wendell Holmes once described Harlan as “the last of the tobacco-spittin’ judges.” Harlan acquired the nickname, the “Great Dissenter,” for writing oppositions, often alone, to decisions that the court of history has since similarly condemned. He is also widely celebrated by admirers of diverse political disposition and legal philosophy. Isgur notes that Justice Thurgood Marshall said he took inspiration from Harlan.
That inspiration may be encapsulated in Harlan’s dissent in Plessy v. Ferguson, which Marshall successfully argued should be overturned in Brown v. Board of Education. Harlan’s dissent stated:
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.
Let us remember John Marshall Harlan, but continue to call the Supreme Court’s building the “Supreme Court.”