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The first Justice John Marshall Harlan has long been recognized as a defender of Black civil rights. Yet some scholars challenge Harlan’s egalitarian reputation by arguing that he was anti-Chinese. In this Article, the Author discusses the evidence which has been offered to support the claim that Harlan was anti-Chinese and offers additional evidence never before presented to argue against this hypothesis. Harlan’s critics have assembled some evidence in a way that suggests Harlan had an anti-Chinese bias. The Author suggests that the evidence is ambiguous and that it can be assembled to produce a different picture from the one Harlan’s critics create. The Author also argues that Harlan’s critics give insufficient weight to the fact that, sitting as a judge, Harlan was often constrained in his decision-making by stare decisis and his conception of the judicial role. The issues presented by the Chinese cases should be viewed in the context of their time and understood not as abstract statements of the Justices’ personal beliefs but as a series of discrete judicial problems presented to the Court for decision. When one examines both the context and the details of the cases, the picture of Harlan that emerges is more nuanced than his critics have suggested.
James W. Gordon, “WAS THE FIRST JUSTICE HARLAN ANTI-CHINESE?”, 36 W. New Eng. L. Rev. 287 (2014), https://digitalcommons.law.wne.edu/lawreview/vol36/iss3/5