Bench & Bar January/February 2026

PRESIDENT'S PAGE

construction upon it.’" Harlan’s Great Dis sent by Charles Thompson. In “The Great Dissenter,” Peter S. Cannel los’ biography of Harlan, the author paints a picture of Harlan at the time of his dissent in Plessy as an established jurist who had developed his vision of a color-blind Con stitution. Nevertheless, his role of dissenter must have taken its toll. “Despairing of the future under a compromised Constitution; furious over the betrayals of his judicial brethren; seething with compassion over the wrongs done to people of color, Har lan’s dissent was a monumental statement.” Canellos at p. 325. It is hard to believe that a man of Harlan’s accomplishments could be despairing, furious, and seething. But he was and this fact shows the toll being a dissenter can take. As well, it shows how courageous one must be to step forward, break from the crowd, and argue for truth and justice when it is against the will of the majority. Despite public and judicial opinions being strongly contrary, Harlan argued boldly for racial equality. In Plessy , Justice Harlan wrote: “Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.” This clear enunciation of a guiding principle of law

has stood the test of time and defined how American's interact with each other to this day. But these words were not written in a vacuum, Justice Harlan was taking an unpopular stand on a then-divisive issue. This took incredible bravery. He had moral courage, intellectual honesty, and the willingness to speak the truth even when the majority were against him. He was a lawyer-statesman. Harlan’s ability to dissent came from his skill as a judge and lawyer. By the time of his dissent in Plessy , Harlan “had introduced novel legal theories and interpretations, seeking to preserve what he saw as the true intent of the post-Civil War [consti tutional] amendments; in 1896, he offered a perfect distillation of those theories, fully thought through and mature.” Canellos p. 346. Thus, to be a lawyer-statesman, you must have honed your craft to build your worldview on a solid foundation. When he authored his dissent in Plessy , Harlan had spent decades as a lawyer and decades as a justice of the Supreme Court. Do we have lawyer statesmen today? From my perspective, it strikes me that we lack people with vision who can look into the future and dissent today in order to make meaningful changes tomorrow. Our society is in a rut, and we need lawyer-statesman to break the status quo. There are countless

issues where there are two cohesive sides vehemently opposed to the other’s position. We seem too tribalistic and divided to give room to dissent. As well, lawyers need to shed bland corporatism, which does not breed leaders willing to take controversial stands. Too often, practicing law seems more about who has the best billboard or marketing campaign instead of who is a leader. Lawyers need to see themselves as agents of change and not revenue genera tors. Who has intellectual honesty, moral clarity, takes a long view and is willing to stand alone? The bigger question may be who has the moral courage to stand up to their tribe or faction? The 21 st century seems to me to have been a rudderless century of war, divisiveness, and economic stagnation. At this time, we need ethical leaders who take the long view with moral clarity. We need lawyer-statesmen. So, how do we make this happen? I sug gest that those of you who find yourselves wanting to dissent should raise their hand and dissent. Be bold! Take on a case for a dissenter. But only do so when you have carefully considered your position and believe it has merit. Be like Harlan and hone your craft. Law does not have to be so corporate and careful. In decades past we have had great lawyers who dissented. Abra ham Lincoln is perhaps the most famous lawyer-dissenter. There are many others. So many of these people have helped create meaningful change and progress. As Kentucky lawyers, we are the heirs of Harlan’s legacy. The lawyer-statesman ideal is not nostalgia; it is a challenge to each of us who sees injustice or corruption to act. Harlan faced all of the established forces. He acted anyway. A lawyer-statesman does not need to be right for today but needs to be right for tomorrow. While we do not have the platform of the United States Supreme Court, we do have sway and influ ence where we live. We all face our Plessy moments that require us to raise our hand to defend an unpopular person or make that unpopular argument in court. Be the person who embodies Harlan and seek positive and meaningful change through vigorous dissent. Photos provided for publication from Centre College.

4 january/february 2026