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UC Historian Teams With Ginsburg to Give
New Voice to Wife of Supreme Court Justice

Date: July 16, 2001
By: Marianne Kunnen-Jones
Phone: (513) 556-1826
Historical Photos: Courtesy of the Library of Congress
Color Photo By: Colleen Kelley
Archive: Research News

UC associate professor of history Linda Przybyszewski and Supreme Court Justice Ruth Bader Ginsburg share a common interest - they both believe historians can learn a lot from the wives of Supreme Court justices. That connection has landed them both in the July 2001 issue of the Journal of Supreme Court History, which is devoted entirely to the memoirs of Malvina Shanklin Harlan, (below right), wife for 54 years to Justice John Marshall Harlan. Read more about their research in The New York Times.

Malvina Shanklin Harlan

Ginsburg had corresponded with Przybyszewski while the UC historian was writing a book on Malvina's husband. Justice Harlan is especially significant because of his lone dissent in Plessy v. Ferguson in 1896, the case that made "separate but equal" the racial law of the land until the 1950s.

While Przybyszewski drew heavily from Mrs. Harlan's memoirs for her biography on this early civil rights champion, Justice Ginsburg told Przybyszewski she would like to see Malvina's memoirs published. A few years later, Ginsburg's wish was fulfilled by the Supreme Court Historical Society, which invited Przybyszewski to do the editing.

The 120-page journal, which will be published late this month, includes a foreword by Ginsburg with an introduction by Przybyszewski, followed by the edited memoirs, which cover the Harlans' life together from the day Malvina and John met in 1854 to the day John died in 1911. Justice Harlan, the son of a Kentucky slave-holding family, served on the U.S. Supreme Court from 1877 to 1911, voting in over 14,000 decisions, said Przybyszewski. She writes, "He wrote more than 700 majority opinions and some of the most famous words uttered from the bench on behalf of the country's black citizens."

Linda Przybyszewski

To make sense out of how a slaveholder could support integration decades before desegregation, Przybyszewski, left, found it helpful to draw on Malvina's description of the Harlans' life. Although memoirs may be tainted with embellished memories and untruths, Przybyszewski argues that it would be silly to overlook the wife's perspective.

Not all her peers agree with her. Przybyszewski said she has been scoffed at by several fellow-academics, who questioned why anyone would care what justices' wives had to say. Przybyszewski replies: "How would you know if you never bothered to listen to them?"

"The idea that she (Malvina) would have nothing to tell us other than a few anecdotes is ridiculous. She has a lot to tell us."

Says Ginsburg in her foreword, "Malvina's manuscript is filled with anecdotes and insights about politics and religion in that era, the Supreme Court in the years 1877 to 1911, and the Harlan family.

"Malvina wrote of her adjustment as a 17-year-old bride, when she left the free state of Indiana in 1856 to reside with John and his parents in Kentucky, and of her feelings when her mother-in-law presented her, on arrival, with a personal slave. She strived to serve her husband selflessly, yet did not surrender all pursuits of her own, particularly, the music that brightened her life. She described the 'at home' Monday receptions Supreme Court wives were expected to hold, when visitors would show up in great numbers, 200 or even 300 in late afternoon hours. The reader is drawn into the Hayes White House through Malvina's friendship with First Lady Lucy Hayes, nicknamed 'Lemonade Lucy' for her avid temperance."

Justice Harlan's wedding photo

With the help of Malvina's narration, Przybyszewski has concluded that Justice Harlan clearly "wasn't a 20th century racial liberal. It's clear he was a paternalist. He owned slaves, and his father owned slaves. It's also clear that he never lost the thoughts of a man who had owned slaves, even long after the Civil War had ended. The good part is that it was a kinder sort of paternalism that included a refusal to advocate violence," she said.

This paternalistic attitude did, however, see racial differences and a hierarchy based on race. In describing the era of slavery, Malvina depicts blacks as having an innate gift for music and as somehow less sensitive to heat than whites. She also noted that only those slaves with "unusual ability" deserved the opportunity to free themselves by self-purchase.

Mrs. Harlan's memoirs also show that she did have influence on her more famous husband. She tells us that she approved of the sentiments voiced by James M. Barrie in his 1908 play What Every Woman Knows. The play depicts a politician whose success turns out to depend on his wife's brilliant but unacknowledged advice, although the husband never quite realizes it. "The wife doesn't mind this," Przybyszweski writes. "Her last speech is this, 'Every man who is high up loves to think that he has done it all himself; and the wife smiles, and lets it go at that. It's our only joke. Every woman knows that.'"

Malvina's influence on her husband is evident in her decision to offer an inkwell that once belonged to Chief Justice Roger B. Taney as an inspiration for Justice Harlan while he was having trouble drafting a dissent from the Civil Rights Cases of 1883. In Dred Scott, Taney had written that blacks could not be citizens of the United States under the Constitution. But Harlan wrote that the 13th and 14th amendments had effectively undone that ruling and had corrected the constitutional errors of the past, said Przybyszewski. "The legal briefs placed before the court had not brought up Dred Scott, yet Harlan's dissent dwelled on its meaning for understanding the war and its constitutional outcome. Malvina Harlan had helped make history."

The historian's hope now is that other scholars will listen to unheard voices of the past to shed light on the individuals who served on the country's highest court.

Assisting Przybyszewski in the memoir research and editing were UC graduate students Kelly Wright, Gregory Long and Stephen Rockenbach and journal managing editor Clare Cushman. The work was funded by Supreme Court Historical Society.

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