My Own Words

by Ruth Bader Ginsburg

  My talk limelights three nineteenth-century ladies whose names even the most diligent students of the Court might not know: from the first part of the nineteenth century, Polly Marshall and Sarah Story; and from the middle of the nineteenth century through the early years of the twentieth century, Malvina Harlan—wives of, respectively, Chief Justice John Marshall (served 1801–35), Justice Joseph Story (1811–45), and the first Justice John Marshall Harlan (1877–1911) (whose grandson became the second Justice John Marshall Harlan). I will devote principal attention to Malvina Harlan, but will also speak of a dawn of the twentieth-century Court spouse, Helen Herron Taft, called Nellie by family and friends, wife of William Howard Taft, who (as Nellie willed) served first as president, then as Chief Justice (1921–30).

  “Behind every great man stands a great woman,” so the old saying goes. Yet little attention has been paid to the lives of the women who stood behind the Justices, and one trying to tell the nineteenth-century wives’ stories runs up against a large hindrance—the dearth of preserved primary source material penned by the women themselves. A volume titled My Dearest Polly, for example, reprints letters Chief Justice John Marshall wrote to his wife. Sadly, according to the compiler of that volume, “while Polly saved [John Marshall’s] letters to her,” John was not a great saver and “left . . . not one word written by Polly to him.”1

  William Story, son of Joseph and Sarah Story, collected and published a wide range of letters concerning his father’s life; not even one of Sarah’s letters to Joseph appears in the collection.2 The index of an otherwise thorough Joseph Story biography contains under Sarah’s name only these entries: “marries Story”; “grief at daughter’s death”; “as invalid”; and “finds Cotton Mather dull.”3 Surely there was more to Sarah than that.

  Malvina Shanklin Harlan, wife of the first Justice John Harlan, did write a work of her own. She described her work and days in an engaging memoir for too long barely noticed, lodged among the Justice’s papers in the Library of Congress. I will speak later about the ultimate publication of Malvina’s memories and present several samples of her commentary.

  Helen Herron Taft, born a quarter century after Malvina Harlan, also told of her life and times. Her manuscript did not languish in a library collection. Her husband and daughter had arranged attractive terms for its publication. They thought work on her life’s story would help her overcome post–White House blues. Nellie pored over papers and letters. She reminisced and her daughter, on leave from Bryn Mawr College, did the writing. Helen Taft’s Recollections of Full Years was published in 1914.4 The book sold well. By then, the women’s suffrage movement had become vibrant in our land. Just this year, HarperCollins published a new biography by Carl Sferrazza Anthony, titled Nellie Taft: The Unconventional First Lady of the Ragtime Era.

  In the beginning, Washington, D.C., the Federal City, was a swampy, barely built town, a place slept in by many more men than women. Justices of the Supreme Court, in those early days, resided under the same roof, in one boardinghouse or another, whenever the Court sat in the Capital. They left their wives behind.

  Wives generally remained at home, too, during the rigorous, sometimes dangerous, circuit rides to U.S. courthouses distant from D.C., arduous journeys that burdened the lives of Supreme Court Justices through most of the nineteenth century.5 There were notable exceptions; I will mention two. Justice William Cushing, who served from 1789 until 1810, had a carriage specially designed so that Mrs. Cushing could ride circuit with him. Her task was to read aloud to her husband as they jogged along, in weather fair and foul, on unpaved roads.6 (Julia) Ann Washington also rode circuit with her husband, George Washington’s nephew Bushrod, whose Court service ran from 1798 until 1829.7 Ann Washington’s health was poor; to make the bumpy way more tolerable, Bushrod read aloud to her.8 But these instances of togetherness were uncommon. For most couples, circuit riding and D.C. boardinghouse living meant long periods of separation.

  If boardinghouse living when the Justices sat in D.C. diminished family life, it served one notable purpose—togetherness day and night helped to secure the institutional authority of the nascent, underfunded Supreme Court. Recent biographies of the great Chief Justice tell how John Marshall used the camaraderie of boardinghouse tables and common rooms, also madeira, to dispel dissent and achieve the one-voiced Opinion of the Court, which he usually composed and delivered himself. The unanimity John Marshall strived to maintain helped the swordless Third Branch fend off attacks from the political branches.9

  Although Chief Justice Marshall strictly separated his Court and family life, he did not lack affection for his wife. In a letter from Philadelphia in 1797, John Marshall told Polly of his longing. “I like [the big city] well enough for a day or two,” he wrote Polly, “but I then begin to require a frugal repast with cool water. I wou[l]d give a great deal to dine with you today on a piece of cold meat with our boys beside us & to see little Mary running backwards & forwards over the floor.”10

  In 1832, a year after Polly’s death, Marshall reflected: “Her judgement was so sound & so safe that I have often relied upon it in situations of some perplexity. I do not recall ever to have regretted the adoption of her opinion. I have sometimes regretted its rejection.”11 In truth, however, the marriage, which spanned nearly a half century (forty-nine years),12 caused John Marshall no little anxiety.

  By all accounts, Polly was a frail woman and chronically ill.13 So acutely noise sensitive was she that John Marshall, to avoid disturbing her, would walk in and around his home without shoes. Richmond, Virginia, officials muffled the town bell so that Polly could sleep undisturbed.14

  Polly’s importance in her husband’s life is perhaps best indicated by the simple engraving placed on Marshall’s tomb, carrying out a request he made just two days before his death. The engraving records, by names and dates, only three events in Marshall’s nearly eighty years on earth: his birth; his marriage to Polly; his departure from this life.

  If John Marshall acted as his fragile wife’s benevolent protector, the Chief Justice’s junior colleague, Joseph Story, thrived in a marriage closer to a joint venture.15 Joseph Story’s first marriage ended tragically with the death of his wife Mary just seven months after their union. His second marriage, to Sarah Waldo Wetmore, proved a happy and enduring match. Joseph’s letters to Sarah indicate a relationship of mutual respect. Joseph gave Sarah detailed accounts of the cultural and political life of the capital and of the Court’s work, including his impressions of the advocates and their arguments.16 After delivering an opinion disposing of a well-known will contest, for example, Justice Story wrote, intriguingly, that he would have much to tell Sarah about the case when he got home, for “there are some secrets of private history in it.”17

  In his will, signed in 1843, Story declared his “entire confidence in the sound Discretion of [his] Wife” to provide for the welfare of their children.18 He bequeathed to Sarah “all the . . . Stock[s] standing in her name, or held by [him] for her use [though purchased] out of her own separate funds.”19 Joseph was of the view that this property fully belonged to Sarah20 although the Massachusetts legislature had not yet provided that a woman, post-marriage, could hold and manage her own property.21 He left to her as well all of his copyrights, manuscripts, letters, and other writings.22 (Story’s book royalties, I should add, amounted, annually, to more than twice his judicial salary.) The final statement in Story’s will is touching, emblematic of a life partnership, responsive to a question Joseph did not want Sarah to worry over. “I recommend,” he wrote, “but do not order, that my wife sell & dispose of all my wines, & all of my Books . . . , which she may not want for her own use, & not . . . keep them merely because they belonged to me, as a memorial of our long & affectionate union.”23

  Joseph Story was the first Justice to break with the Court’s brethren-only boardinghouse tradition. Sarah Story accompanied Joseph to Washington, D.C., for the February 1828 Term. Chief Justice Marshall was ambivalent. H
e told Story it would be fine if Sarah dined with the Justices, whose circle might benefit from a woman’s “humanizing influence.”24 On the other hand, there was work to be done. Marshall expressed the hope that Sarah would not “monopolize” her husband.25 The experiment was not altogether successful. Sarah Story apparently enjoyed Washington society well enough; her digestive system, however, did not take well to boardinghouse fare.26 And she perhaps grew tired of “waiting in the wings for conferences to cease.”27 She departed town before her husband, and did not return in subsequent years.28

  But her stay unsettled the boardinghouse culture. Justice John McLean, appointed in 1829, decided he would reside at home in D.C. with his wife and would not board with the brethren. Justice William Johnson, an early dissenter, also stayed away from the group quarters. Chief Justice Marshall was not pleased. The scattering of the Justices, he correctly anticipated, would mean more separate opinions, undermining the unified voice Marshall labored to install.29

  I turn now to the first wife to tell her own story, Malvina Shanklin Harlan, whose husband, John Marshall Harlan, served on the Court from 1877 until 1911. It was a story known to members of the Harlan family and the Justice’s biographer, but until 2001, read by few others. Malvina Shanklin Harlan lived from 1839 until 1916, but she dated her memoir, which she titled Memories of a Long Life, from 1854, the year she met John Marshall Harlan, until 1911, the year he died. Malvina’s manuscript contained well-told anecdotes and keen insights about the Harlan family, politics in Indiana, Kentucky, and Washington, D.C., in pre– and post–Civil War days, religion, and of course, the Supreme Court.

  I was drawn to Malvina’s Memories as a chronicle of the times, as seen by a brave woman of the era. I thought others would find the manuscript as appealing as I did. For many months, I tried to interest a university or commercial press in Malvina’s Memories, to no avail. When I was about to give up on the endeavor, the Supreme Court Historical Society rescued the project.

  The society devoted the entire summer 2001 issue of its journal to Malvina’s Memories. Pre-publication in the society’s journal, the manuscript was carefully annotated and helpfully introduced by historian and University of Cincinnati law professor Linda Przybyszewski, author of an engaging biography of the Justice titled The Republic According to John Marshall Harlan. The historical society acquired, and placed throughout the issue, a number of attractive photographs. On the cover is a portrait of Malvina, age seventeen, and John, age twenty-three, on their wedding day in 1856.

  To call attention to the society’s publication, I asked the New York Times Supreme Court reporter, Linda Greenhouse, if the Times might publish a review of the memoir. She said the Times was not likely to write a book review of a periodical issue, but added, perhaps something useful might be done. She would think about it. As those who read her Times reports know, Linda is a very good thinker.

  In August 2001, the New York Times ran two feature stories about Malvina’s Memories. On page one of a Sunday edition, the Times ran the wedding photograph and described the memoir. A follow-up story the next week included several quotations from the manuscript. Among them were memories relating to the Civil War.

  The first quotation concerned Malvina’s decision to marry John, a slave-owning Kentuckian. Malvina, who lived her first seventeen years in Indiana, wrote:

  All my kindred were strongly opposed to Slavery, the “peculiar institution” of the South. Indeed, an uncle on my mother’s side, with whom I was a great favourite, was such an out-and-out Abolitionist that I think (before he came to know my husband) he would rather have seen me in my grave than have me marry a Southern man and go to live in the South.

  Although Kentucky was a slave state, it remained loyal to the Union. After consulting with Malvina, John Marshall Harlan joined the Union army five years after their marriage, when two children were part of the family. He remained in service throughout the war.

  Decades later, in 1903, war stories were still retold. Malvina wrote of a dinner party that year:

  There were perhaps a dozen people at the table. My husband, being in the best of spirits, began to tell the company some of his experiences in the Civil War.

  He was describing a hurried march which he and his regiment made through Tennessee and Kentucky in pursuit of the daring Confederate raider, John Morgan. He came to a point in his story where he and the advance guard of the pursuing Union troops had nearly overtaken the rear-guard of Morgan’s men, who had just crossed from the opposite shore.

  Suddenly, Judge Lurton [a guest at the dinner] laid down his knife and fork, leaned back in his chair, his face aglow with surprise and wonder, and called out to my husband in a voice of great excitement, “Harlan, is it possible I am just finding out who it was that tried to shoot me on that never-to-be-forgotten day?”

  In a tone of equal surprise . . . my husband said, “Lurton, do you mean to tell me that you were with Morgan on that raid? Now I know why I did not catch up with him; and I thank God I didn’t hit you that day.”

  The whole company was thrilled by the dramatic sequel to my husband’s story, as they realized afresh how completely the wounds of that fratricidal war had been healed; for there were those two men, [one from Kentucky, the other from Tennessee,] fellow citizens of this one and united country, serving together as Judges on the Federal Bench. It was as if there had been no Civil War.

  Judge Lurton, at the time of the dinner party, served on the U.S. Court of Appeals for the Sixth Circuit; he was appointed to the Supreme Court seven years later, in 1909, and served his first two years on the Court together with Justice Harlan.

  Indicating the power of the press, the Times coverage of Malvina’s Memories garnered the attention of several publishers. Random House made the offer most attractive to Justice Harlan’s heirs and the Supreme Court Historical Society. The Modern Library edition was in bookshops in the spring of 2002, in good time for Mother’s Day. Malvina’s memoir was well received. One reviewer commented that reading it “[was] like engaging with a fine conversationalist,” and encountering a “gifted storyteller.”

  By the time of John Harlan’s appointment to the Supreme Court in 1877, boardinghouse days were long over, and a Supreme Court appointment meant a move to Washington, D.C., for all in the Justice’s immediate family. It also meant an unpaid job for the Justice’s wife.

  Malvina Harlan wrote of the “at home” Monday receptions Supreme Court wives were expected to hold. The callers came in numbers. Malvina reported she might receive as many as two hundred to three hundred visitors on an “at home” Monday.30 These events were more fancy than plain. Tables would be spread with refreshing salads and rich cakes. Musicians were engaged so the young people might dance a waltz or two while the older folk looked on.31 “At home” Mondays held by Court wives continued into Charles Evans Hughes’ Chief Justiceship in the 1930s.32

  In 1856, when seventeen-year-old Malvina Harlan left her parents’ home in Indiana to begin married life in Kentucky, her mother counseled: “You love this man well enough to marry him. Remember, now, that his home is YOUR home; his people, YOUR people; his interests, YOUR interests—you must have no other.”33

  Malvina valued that advice, but did not follow it in all respects. She continued to pursue her interest in music34 and eventually sojourned abroad on her own35 when her husband returned to the United States to attend the Court’s Term. Of her decision to tour Italy with a few friends during that time, she wrote: “This exhibition of independence was so new and surprising to my daughters that they called my Italian trip ‘Mother’s Revolt.’ ”

  In the main, however, her ambition was her husband’s success. She sought to be helpmate to, not independent from, John Marshall Harlan. She took pride in his nickname for her, “Old Woman.” She thought it showed “he looked upon [her] as having the judgment and experience that only years can bring.”

  When John became a Supreme Court Justice, Malvina developed a friendship with First Lady Lucy Hayes,
nicknamed “Lemonade Lucy” for her avid temperance.36 This friendship yielded the Harlans more than occasional invitations to the White House.37

  At White House evenings, Supreme Court wives did not always stand solidly, or at least silently, behind their men. Malvina Harlan tells of a dinner at which Chief Justice Waite endured some teasing by his wife and the First Lady for having “squelched” Belva Lockwood’s 1870s application to be admitted to practice before the Supreme Court.38

  Malvina reported an episode, my favorite, showing that Supreme Court wives attended to more than just the social side of their husbands’ lives. Justice Harlan was a collector of objects connected with American history.39 He had retrieved for his collection, from the Supreme Court Marshal’s Office, the inkstand Chief Justice Taney used when he penned the 1857 Dred Scott40 decision,41 which held that no person descended from a slave could ever become a citizen of the United States, and that the majestic Due Process Clause safeguarded one person’s right to hold another in bondage. It was a decision with which Harlan, as a Justice, strongly disagreed, an opinion overturned by the Civil War and the Fourteenth Amendment.

  Chivalrous gentleman that he was, Harlan promised to deliver the Taney inkstand to a woman he met at a reception, who claimed a family relationship to Chief Justice Taney. Malvina thought the promise unwise, so she hid the inkstand away among her own special things, and Justice Harlan was obliged to report to the purported Taney relative that the item had been mislaid.

  In the months immediately following the incident, the Supreme Court heard argument in the so-called Civil Rights Cases,42 which yielded an 1883 judgment striking down the Civil Rights Act of 1875,43 an act Congress had passed to advance equal treatment without regard to race in various public accommodations. Justice Harlan, alone, resolved to dissent, as he did thirteen years later in Plessy v. Ferguson, the 1896 decision that launched the “separate but equal” doctrine. He labored over his dissenting opinion for months, but “his thoughts refused to flow easily.” He seemed, Malvina wrote in her memoir, trapped “in a quagmire of logic, precedent, and law.”44