NARRATOR: In 1883, that law was challenged. The case, besides rewriting the nation's long-running racial drama, would produce the Supreme Court's first great dissent ... and its first great dissenter.
The Civil Rights Cases was a consolidation of five separate cases that spanned the country. Owners had been fined or indicted for denying black citizens seats at theaters in New York and San Francisco, rooms at hotels in Kansas and Missouri, a seat on a ladies' car of a Southern railroad. The owners wanted the law under which they'd been prosecuted struck down.
Much had changed in the eight years since the law's passage. Even in the North, people had grown weary of Reconstruction. Radical Republicans had lost control of Congress and the Southern statehouses. Federal troops had been pulled from the old Confederacy.
Members of the Court had no problem gauging the force and direction of the political winds. As Joseph Bradley's majority opinion circulated among the justices, eight of the nine signed on.
KLARMAN: The Supreme Court in 1883 strikes down the Civil Rights Act of 1875. And what the Court says is the Fourteenth Amendment prohibits a state from denying equal protection. Individual behavior does not offend the Constitution. And the federal government doesn't get to come in and fix this problem.
WEINBERG: The Court took the view that the Fourteenth Amendment gave no protection from private discrimination. The landlord could exclude you from renting his house. The innkeeper could exclude you from the inn. The theater could exclude you from the theater. The Fourteenth Amendment said no state shall; it didn't say no landlady, no innkeeper, no theater manager.
POWE: The opinion ends with Justice Bradley saying, "There comes a time when, after the emergence of slavery, a person must take on the role of mere citizen and cease being a special favorite of the law." And what the Court is announcing then is, "Reconstruction is over. You're just like anyone else."
NARRATOR: There was only one justice who refused to join the majority. He was a starch-collared, fundamentalist Presbyterian and former slave holder from Kentucky named John Marshall Harlan. He was also the only justice who'd seen slavery and Reconstruction up close.
As attorney general of Kentucky just after the Civil War, Harlan had been a vocal opponent of the Thirteenth and Fourteenth Amendments. He'd been among the office holders who stirred white rage against freed slaves. In Harlan's hometown of Frankfort alone, there were 64 catalogued acts of white supremacist terror against freed blacks and their political allies. When Harlan saw the bitter fruit of his politics, he'd been shamed.
PRZYBYSZEWSKI: Even though he was raised as a white supremacist, raised as a slave holder, at the same time he firmly believed that his father had been an honorable white man, that he had never abused power. That may be a myth, but that's what he believed. And he wanted to live up to that kind of honor. And so people threw his history back in his face. And he said, "I would rather be right than consistent."
GILLMAN: The Northern members of the Court could talk in generalities about how the freedmen had become equal in the eyes of the law, and no longer needed the special help of the federal government. But Harlan knew better. He knew the predicament that blacks faced in the South. And he knew that civil rights could not be protected simply with the abstractions of the language of equality -- that civil rights required the federal government to give the aid that was necessary.
NARRATOR: Harlan determined to dissent in the Civil Rights Cases and to dissent loudly, but once he began to write, he found himself paralyzed ... until his wife pulled from storage a strange memento the Harlans had bought: the inkstand Chief Justice Roger Taney had used to write his infamous Dred Scott decision, a decision in which he had observed that blacks had no rights a white man was bound to respect.
PRZYBYSZEWSKI: She cleaned it. She filled it with ink and she put it on his desk so that when he came home from church one Sunday it was sitting there. And in effect, what she was reminding her husband was that the Dred Scott case needed to be undone.
AMAR: Harlan's dissent in the Civil Rights Cases says, we the Court protected the rights of slave masters and upheld congressional laws protecting slave masters. And now, when the Constitution has been amended to protect the rights of former slaves, we're striking down congressional laws designed to enforce that right. We are not treating the former slaves with the same kind of generosity that we once treated slave masters, and that's hypocrisy.
GILLMAN: Harlan is that one voice on the Court that still embodies that previous commitment that was made just a few years earlier to that goal, to the goal of racial equality. But the rest of the country, and the Court, had moved on.
KLARMAN: The country doesn't want to continue with this experiment in coerced reform of race relations in the South. And I think the Supreme Court is basically putting its stamp of approval on that. They're saying the national government is not going to intervene anymore in Southern race relations. We are restoring home rule on the race issue to the South. We're gonna return to the status quo, which is: upper-class whites in the South get to decide what race relations are gonna look like.