Academic

Harlan’s dissents in Plessy v. Ferguson and the Civil Rights Cases are well known, but the June 2009 issue of the ABA Journal has a story about Harlan’s role in another little known, but significant,  civil rights case: United States v. Shipp.

In Chattanooga, Tennessee in 1906, a black man named Ed Johnson was accused of raping a white woman. Barely escaping a lynching, he was found guilty and sentenced to death by an all white jury despite overwhelming evidence of his innocence. His white lawyers gave up at this point, but two black lawyers who had assisted at the trial appealed the verdict all the way up to the Supreme Court. The judge who heard the lawyers and granted their appeal? John Marshall Harlan.

Harlan’s decision so enraged the citizens of Chattanooga that they, with the collusion of the sheriff, lynched Johnson for real this time before the case could be heard by the Supreme Court. The Court, in turn was enraged by the crowd’s actions and indicted the sheriff and 8 others for contempt, which led to the first and only criminal case heard by the Supreme Court.

United States v. Shipp isn’t technically a civil rights case as it dealt primarily with federal habeas corpus. Still it’s significant in that it marks the first time that a black lawyer was lead counsel in a case for the Supreme Court. Also, it foreshadows the fight between the Supreme Court and the southern states that occurred after Brown v. Board of Education 50 years later. It’s interesting to speculate how history would have differed if another judge other than Harlan had heard the appeal. Would any of the others have been outraged and courageous enough to grant the appeal?

The whole article is available on the ABA Journal’s website.