UC Historian Pens Play About A Supreme Court Justice Who Championed Civil Rights

“The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.” – U.S. Supreme Court Justice John Marshall Harlan (1833-1911)

In the wake of the 50th anniversary of Brown v. the Board of Education, the U.S. Supreme Court ruling that ended “separate but equal” in education, a University of Cincinnati historian is collaborating with the Kentucky Historical Society on a play that highlights the contributions and the complexities of a Supreme Court Justice who was the lone dissenter in another “separate but equal” case – the 1896 Plessy v. Ferguson decision – that established separate accommodations for railway travel.

That lone dissenter, Supreme Court Justice John Marshall Harlan, was a Kentucky slave owner, descended from a family of slave owners, and yet eventually condemned segregation and upheld constitutional freedoms established for African Americans. UC Associate Professor Linda Przybyszewski and Mike Thomas, museum theatre director for the Kentucky Historical Society, were commissioned by the Kentucky Bar Association to develop a play about Harlan’s famous decisions and writings that will be performed at the Kentucky Bar Association’s annual convention Friday, June 25, at the Lexington Civic Center.

Przybyszewski says the 15-minute play, “In the Shadows of Great Men,” has three key characters: John Marshall Harlan, his wife of 54 years, Malvina Shanklin Harlan, and a fictional character that Przybyszewski named Goode Freeman, an African American law student. Przybyszewski says Goode’s name was inspired by U.S. Supreme Court Justice Thurgood Marshall, who was said to have often quoted Harlan and when Marshall argued against segregation before the U.S. Supreme Court in the Brown v. Board case. Przybyszewski says the Goode character’s last name reflects a tradition among African American families after Emancipation who changed their last name to Freeman.

“There are two points that I want to make in the play. First, you can’t understand Harlan unless you understand the relationship with his wife and with African Americans at that time,” Przybyszewski says. “The second point is that his relationship with African Americans evolved over time. He was a slaveholder. His father was a slaveholder. He first opposed the 13th amendment abolishing slavery and the 14th amendment establishing citizenship for African Americans.

 “My interpretation of Harlan is that he embraced the notion of paternalism – the refusal to abuse power” says Przybyszewski. “After the Civil War, tens of thousands of people who fought for the Confederacy were coming back to Kentucky and terrorizing freed African Americans in the form of lynchings, burnings and beatings. I believe Harlan felt that he came from a long line of lawyers and that the Harlans have an undertaking to uphold the law. He felt he had to uphold the constitution and that the Harlans do not abuse power – they do not abuse people.”

“We wanted to take a look at what establishes greatness in a man – how does a man achieve greatness and how does he come to his title as a great dissenter on ‘equal but separate,’ yet come from a family of longtime slave holders,” says Thomas.

Przybyszewski wrote the history, The Republic According to John Marshall Harlan, published by the University of North Carolina Press in 1999. In 2001, she collaborated with U.S. Supreme Court Justice Ruth Bader Ginsburg to publish the memoirs of Malvina Shanklin Harlan, titled, Some Memories Of A Long Life, 1854-1911.
 
“She adored Harlan, absolutely,” Przybyszewski says of Malvina Shanklin Harlan. “She thought of him as this incredible, accomplished, wonderful man that she really did adore.”

The 1896 Plessy v. Ferguson decision establishing “equal but separate,” was opposed only by Justice Harlan. Segregation was struck down 58 years later as Thurgood Marshall argued against segregation in the Brown v. Board case in 1954. “Marshall was said to have quoted Harlan often from the Plessy dissent, and I bring Marshall in at the end of the play,” says Przybyszewski. “In Plessy and in a number of other civil rights decisions, Harlan dissented by himself. And, he was surprised the first time that happened in Plessy v. Ferguson. He was shocked to find that no one agreed with him that segregation was illegal.”

Thomas says the background of the play will include a multimedia presentation featuring images of Harlan and his family, along with some of his famous quotes. “As the play has evolved, the show has really grown much more of a heart,” he says. “It turned into an interesting portrait of three people. It paints a portrait of a time and uses Goode to describe how some things have changed since Harlan’s time, and some things remain the same.” Thomas adds that the play will also be performed during future galleries and exhibits at the Kentucky Historical Society in Frankfort, Ky.

“Being a historian, I am utterly rooted in the historical record, so this has been an interesting experience, trading drafts of the play in e-mails with Mike,” Przybyszewski says.

At the June 25 presentation before the Kentucky Bar Association, the character of John Marshall Harlan will be portrayed by Michael Friedman, a former theater professor at the University of Kentucky. Malvina Shanklin Harlan will be played by professional actress Donna Ison; and Goode will be played by Jaress Turner of Georgetown, Ky., who has studied at The Actors Guild in Lexington, Ky. Rehearsals are underway through June 23 at the Kentucky History Center in Frankfort.