Peter S. Canellos writes:

When Donald Trump’s first Supreme Court nominee, Neil Gorsuch, went before the Senate Judiciary Committee for confirmation in early 2017, he offered a surprising choice of role model. Gorsuch — a conservative member of the Federalist Society, carrying the personal imprimatur of Mitch McConnell — named John Marshall Harlan, the progressive 19th-Century justice best known as the sole member of the Supreme Court to stand up for Black rights and economic protections.

“Justice Harlan got the original meaning of the Equal Protection Clause right the first time, and the Court recognized that belatedly,” Gorsuch said, in one of multiple references he made to Harlan. “It is one of the great stains on the Supreme Court’s history that it took it so long to get to that decision.”

Harlan was known as the Great Dissenter — an intellectual powerhouse who articulated what, for the time, were extremely forward-looking views on what the Constitution said about rights in a post-slavery society. A few years before Gorsuch’s confirmation, another justice, the liberal icon Ruth Bader Ginsburg, had been asked about her role models, especially in looking ahead to her judicial legacy. She, too, mentioned Harlan, citing his powerful dissent against the separate-but-equal doctrine in Plessy v. Ferguson. [Continue reading…]