Once on the Supreme Court, Harlan could have swung back to a conservative position on civil rights. Instead, he became one of his generation’s most intense and uncompromising defenders of the Negro. Perhaps his was the psychology of the convert who defends his new faith more passionately, even more combatively, than the born believer. Harlan liked to think that he had changed because he knew the South and realized that any relaxation of federal protection of the rights of Negroes would encourage the “white irreconcilables” first to acts of discrimination and then to violence, which would destroy all hope of accommodation between the races.

When Harlan sat down in October of 1883 to write his dissent in the Civil Rights Cases , he hoped to set off a cannon of protest. But he simply could not get his thoughts on paper. He worked late into the night, and even rose from half-sleep to write down ideas that he was afraid would elude him in the morning. “It was a trying time for him,” his wife observed. “In point of years, he was much the youngest man on the Bench; and standing alone, as he did in regard to a decision which the whole nation was anxiously awaiting, he felt that … he must speak not only forcibly but wisely.”

After weeks of drafting and discarding, Harlan seemed to reach a dead end. The dissent would not “write.” It was at this point that Mrs. Harlan contributed a dramatic touch to the history of the Civil Rights Cases .

When the Harlans had moved to Washington in 1877, the Justice had acquired from a collector the inkstand which Chief Justice Roger Taney had used in writing all his opinions. Harlan was fond of showing this to guests and remarking that “it was the very ink-stand from which the infamous Dred Scott opinion was written.” Early in the 1880’s, however, a niece of Taney’s, who was engaged in collecting her uncle’s effects, visited the Harlans. When she saw the inkstand she asked Harlan for it, and the Justice agreed. The next morning Mrs. Harlan, noting her husband’s reluctance to part with his most prized possession, quietly arranged to have the inkstand “lost.” She hid it away, and Harlan was forced to make an embarrassed excuse to Taney’s niece.

Now, on a Sunday morning, probably early in November of 1883, after Harlan had spent a sleepless night working on his dissent, Mallie Harlan remembered the inkstand. While the Justice was at church, she retrieved it from its hiding place, filled it with a fresh supply of ink and pen points, and placed it on the blotter of his desk. When her husband returned from church, she told him, with an air of mystery, that he would find something special in his study. Harlan was overjoyed to recover his symbolic antique. Mrs. Harlan’s gesture was successful, for as she relates: The memory of the historic part that Taney’s inkstand had played in the Dred Scott decision, in temporarily tightening the shackles of slavery upon the negro race in those antebellum days, seemed, that morning, to act like magic in clarifying my husband’s thoughts in regard to the law … intended by Sumner to protect the recently emancipated slaves in the enjoyment of equal ‘civil rights.’ His pen fairly flew on that day and, with the running start he then got, he soon finished his dissent.

How directly the recollection of Dred Scott pervaded Harlan’s dissent is apparent to anyone who reads the opinion. He began by noting that the pre-Civil War Supreme Court had upheld congressional laws forbidding individuals to interfere with recovery of fugitive slaves. To strike down the Act of 1875 meant that “the rights of freedom and American citizenship cannot receive from the Nation that efficient protection which heretofore was unhesitatingly accorded to slavery and the rights of masters.”

Harlan argued that the Civil Rights Act of 1875 was constitutional on any one of several grounds. The Thirteenth Amendment had already been held to guarantee “universal civil freedom”; Harlan stated that barring Negroes from facilities licensed by the state and under legal obligation to serve all persons without discrimination restored a major disability of slavery days and violated that civil freedom. As for the Fourteenth Amendment, its central purpose had been to extend national citizenship to the Negro, reversing the precedent upheld in the Dred Scott decision; its final section gave Congress power to pass appropriate legislation to enforce that affirmative grant as well as to enforce the section barring any state action which might deny liberty or equality. Now, the Supreme Court was deciding what legislation was appropriate and necessary for those purposes, although that decision properly belonged to Congress.

Even under the “State action” clause of the Fourteenth Amendment, Harlan continued, the 1875 act was constitutional; it was well established that “railroad corporations, keepers of inns and managers of places of public accommodation are agents or instrumentalities of the State.” Finally, Harlan attacked the unwillingness of the Court’s majority to uphold the public-carrier section of the act under Congress’ power to regulate interstate trips. That was exactly what was involved in Mrs. Robinson’s case against the Memphis and Charleston Railroad, he reminded his colleagues; it had not been true before that Congress had had to cite the section of the Constitution on which it relied.