OPPOSITE:

Harlan's view in Plessy is one we now see as foundational to liberal democracy, and it's not just progressives who venerate him. Neil Gorsuch cited him as a role model at his confirmation hearing in 2017, and Chief Justice John Roberts put Harlan's portrait in the conference room where justices decide cases. But left unasked by Stewart was the question at the heart of his shrewd rhetoric: Would Harlan himself really have dissented in Roe? Would he support those who wish to see it overturned today?

The question can't be answered with any certainty. No one can probe so deeply into the mind of a historical figure as to ascertain how he or she would view later events. But the unusual prescience of Harlan -- who earned the sobriquet The Great Dissenter for his willingness to stand on principle -- provides a unique lens through which to view the deliberations of current-day justices. He was thoughtful and foresighted, and even in his own time was seen as something of an apostle of the American system -- a man who, in the words of his Supreme Court colleague David Brewer, "goes to bed every night with one hand on the Constitution and the other on the Bible, and so sleeps the sweet sleep of justice and righteousness."

A man like that presumably would have the sovereign wisdom to untangle the legal and ethical knots in Roe v. Wade. But Stewart may be wrong to locate that wisdom in Harlan's Plessy dissent. As many have noted, the parallels between Plessy and Roe that Stewart tried to draw go only so far. Perhaps the most notable is their relationship to rights: In Roe, the court conferred a right, the right to choose to terminate a pregnancy within certain parameters, and Stewart asked the court to roll it back. In Plessy, the court refused to confer a right, that of Black people to travel alongside white people.

Tweet   @brothersjudd