Vivande and the U.S. Supreme Court

By THOMAS REYNOLDS

When the first Monday in October arrives and the United States Supreme Court takes the bench after its summer recess, all eyes will be on the newest justice, Sonia Sotomayor.

Lisa Middione at Vivande in 2009.

Lisa Middione at Vivande in 2009.

But Lisa Middione, co-owner with chef Carlo Middione of Vivande on Fillmore Street, will be thinking instead of two justices from the past: her great-grandfather, Justice John Marshall Harlan, who served from 1877 to 1911; and her uncle, her mother’s brother, Justice John Marshall Harlan II, who served from 1955 to 1971.

“We were very close to Uncle John,” she says of the younger Harlan, having grown up near him in New York. “The family just adored him — and he had a great sense of humor.”

The family’s commitment to law and public service was established early on. Expecting greatness, the first John Marshall Harlan’s father had named him after Chief Justice John Marshall, who in the early days of the republic was primarily responsible for establishing the court’s authority.

The Harlan family hailed from Kentucky. They owned slaves, but when the Civil War came, John Marshall Harlan fought to maintain the Union. Despite his misgivings during the Reconstruction era, he would go on to become one of the nation’s most important voices for equal rights.

“The image of leadership was very important to the family when I was growing up,” Lisa Middione says. Her great-grandfather continued to exert a powerful influence on the family, which gathered in the summers at Murray Bay, Quebec, a family compound he had established on the St. Lawrence River across the border in Canada.

‘The President picked me up and carried me piggyback.’

“That was a special place we used to go in the summer,” she says. The extended Harlan family summered near their friends the Tafts, including William Howard Taft, who would go on to become President and later chief justice.

“One of my first memories is of a birthday party at the Tafts’,” Middione says. “I was maybe three years old and I got lost. The President picked me up and carried me piggyback to my family.”

Growing up in New York near Uncle John Marshall Harlan II and his family, she remembers him doing “many amazing things.” He was a Rhodes Scholar who studied law at Oxford and returned to become a patrician partner at a prominent Manhattan law firm. While he was heading a team of lawyers defending the DuPont family in a major antitrust case in Chicago, Lisa Middione came to town on business, and Harlan’s wife insisted she stay in their suite at the Drake Hotel.

“Mr. Pierre DuPont also stayed in the suite,” Middione says. “I recall him as a very dignified, courtly old gentleman, and he had a French accent. We all had dinner together every night, along with key lawyers working on the case. The conversation was fascinating.”

She remembers: “Eisenhower had just been elected. Every evening the telephone wires were burning back and forth with the Republican Party chiefs in Washington about who was being appointed to this and that position.”

In 1954, Harlan II was nominated to the Supreme Court, where Harlan I had served with such distinction, and sworn in wearing his grandfather’s gold pocket watch. He joined the court just months after his grandfather’s once-lonely dissenting position that racial segregation was unconstitutional had become the law of the land with the court’s unanimous ruling in Brown v. Board of Education.

“I remember taking my grandmother to Washington for the induction,” Middione says. “She thought he was too young,” at 55, even though his grandfather had been appointed when he was only 44, becoming one of the youngest justices in the history of the court. “It was an extraordinary experience,” Middione says.

Harlan II served through the Warren Court’s legal revolution of the 1950s and ’60s. A more conservative judge than his grandfather, he was often in dissent. He also struggled with declining eyesight. In his final years on the court, he became almost completely blind.

That made the pornography cases that came to the court in the ’60s particularly challenging — and ripe for his roguish sense of humor. In the court’s basement was a screening room where the justices watched films alleged to be pornographic. Harlan purposely sat beside prudish colleagues and insisted on hearing a blow-by-blow description. “Oh, extraordinary!” he would exclaim.

‘It was a lot to live up to. It was inspiring.’

Lisa Middione doesn’t doubt the story, but never heard it at family gatherings. “We didn’t talk about anything to do with the court,” she says. “He couldn’t talk about it.”

Of her remarkable family heritage, she says: “It was a lot to live up to. It wasn’t overwhelming. It was inspiring.”

In fact, she followed another family tradition, music, and studied piano at Julliard, encouraged by her mother, an accomplished musician who studied piano in Paris. After Middione came to California, she became an impresario, sometimes presenting 350 events per year, including Marion Anderson and Marlene Dietrich, and helping to create the Stern Grove Music Festival.

“Carlo loves music,” she says of her partner in life and business. “We got together because of my involvement in music. Somebody brought him to Stern Grove. The story is that he saw me and announced: ‘That’s the woman I’m going to marry.’”

He did, in 1968. At the suggestion of her aunt Janet Harlan, the sister of her mother and Harlan II, Lisa and Carlo came to Nevada to be married. “The courthouse was closed in Carson City,” she says. “So we were married at the Delta Saloon in Nevada City. We had two choices — either there or the Bucket of Blood.” Aunt Janet was their witness. “Then we went to Janet’s house and called Uncle John at the Supreme Court and told him. He had met Carlo and liked him.” Of marrying into her family’s judicial heritage, Lisa Middione says: “Carlo was equal to it.” They later went to Washington to visit Harlan at the court.

“Uncle John gave me a great compliment,” Middione says. “He said I would have made a great lawyer.” At one time she contemplated a career in judicial administration, convinced she could help the courts operate better, but never pursued it.

Her family’s history came to the fore a few years ago when Justice Ruth Bader Ginsburg, while doing research in the Library of Congress, came across a manuscript written by Middione’s great-grandmother, Malvina Shanklin Harlan, wife of the first Justice Harlan. Ginsburg urged that it be published, and it was, in 2002, by Random House.

The publication of Some Memories of a Long Life was celebrated with a reception at the Supreme Court attended by the Middiones and other members of the Harlan family, along with Justices Ginsburg and Sandra Day O’Connor. Middione’s cousin performed a concert.

“It was very exciting,” she says. “I had ended up with my great-grandfather’s Civil War brass stirrups, which my Aunt Laura Harlan had mounted into bookends and used in her charming Murray Bay cottage, which my mother inherited from her. When Carlo and I went back to the court for the memoirs publication, I demounted the stirrups and gave them to the court archives, where I felt they best belonged.”

Harlan-book

THE TALE OF THE TANEY INKSTAND

By MALVINA SHANKLIN HARLAN

A certain historic inkstand played an unexpected, dramatic and inspiring part in one of the most important of my husband’s [U.S. Supreme Court Justice John Marshall Harlan] numerous dissenting opinions.

One day during (I think) his second or third year in Washington [1878-79], in the office of the marshal of the Supreme Court, he spied a very old-fashioned and unique inkstand. The quaint little inkstand had about it such an air of mystery and history that my husband asked the marshal for its story. He learned that it had belonged to Chief Justice Roger Taney and that it was the one constantly used by him in his judicial work. Those innocent wells had furnished the ink with which he penned the famous Dred Scott decision, which, more than any single event during the agitation over the slavery question in the antebellum days, had served to crystallize the antislavery feelings in the northern states.

My husband’s interest in Taney’s inkstand was so marked that the marshal asked him if he would like to have it. My husband answering most eagerly in the affirmative, the marshal at once wrapped up the historic little inkstand and gave it to my husband, who put it in his coat pocket and brought it home as a great treasure.

A few months afterwards, the court decided the famous Civil Rights case, involving the constitutionality of the Act of 1873, which was introduced by Charles Sumner for the purpose of assuring civil rights to the Negroes throughout the Union.

As all lawyers know, the court declared the Sumner Act unconstitutional, my husband alone dissenting.

His dissent (which many lawyers consider to have been one of his greatest opinions) cost him several months of absorbing labor, his interest and anxiety often disturbing his sleep. Many times he would get up in the middle of the night in order to jot down some thought or paragraph he feared might elude him in the morning. It was a trying time for him. In point of years, he was much the youngest man on the bench, and standing alone as he did in regard to a decision the whole country was anxiously awaiting, he felt that, on a question of such far-reaching importance, he must speak not only forcibly but wisely.

In the preparation of his dissenting opinion, he had reached a stage when his thoughts refused to flow easily. He seemed to be in a quagmire of logic, precedent and law. Sunday morning came, and as the plan that had occurred to me in my wakeful hours of the night before had to be put into action during his absence from the house, I told him that I would not go to church with him that day. Nothing ever kept him from church.

As soon as he had left the house, I found the long-hidden Taney inkstand, gave it a good cleaning and polishing, and filled it with ink. Then, taking all the other inkwells from his study table, I put that historic and inspiring inkstand directly before his pad of paper; and, as I looked at it, Taney’s inkstand seemed to say to me, “I will help him.”

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 the antebellum days, seemed that morning to act like magic in clarifying my husband’s thoughts in regard to the law that had been 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.

It was, I think, a bit of poetic justice that the small inkstand in which Taney’s pen had dipped when he wrote that famous (or rather infamous) sentence in which he said that “a black man had no rights which a white man was bound to respect,” should have furnished the ink for a decision in which the black man’s claim to equal civil rights was as powerfully and even passionately asserted as it was in my husband’s dissenting opinion in the famous Civil Rights case.

— Excerpted from Some Memories of a Long Life © 2001-2002.