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the dred scott case

17 october 2008

There are four kinds of famous Supreme Court decisions. One consists of landmarks in the history of judicial review itself, like Marbury v. Madison: monumental, no doubt, but nobody gets very excited over them. Another consists of majestic decisions that everyone now feels very good about, where we really sense that the Court got it right for all time: Brown v. Board of Education, Gideon v. Wainwright, Miranda v. Arizona, United States v. Nixon. A third consists of those that remain controversial to this day, especially Roe v. Wade but also the irrevocable Bush v. Gore. And then there's the last category, of cases where the Court seemed to decide not just incorrectly but somehow evilly. Plessy v. Ferguson is high on that list, but the mother of them all is the 1857 case Dred Scott v. Sandford.

Don E. Fehrenbacher wrote the definitive book on Dred Scott back in 1978, a Pulitzer-Prize-winning study that continues in print 30 years later. It really is a magisterial book both in content and in method. And its closing words seem more justified as time goes on:

We have yet to glimpse the ultimate power of judicial sovereignty, a theory of power set forth by John Marshall in 1803 but first put to significant use by his successor on March 6, 1857. (595)
Marshall's successor was Roger Taney, Chief Justice, former slaveholder, Confederate sympathizer, and author of the court's opinion in Dred Scott. Furiously dissatisfied with the growing resistance to the expansion of slavery, Taney used a simple suit for freedom by an unassuming Missouri slave to rewrite the entire cobbled-together system of Federal law on race and slavery, and in some places to wrest the Constitution from its plain meaning. "The opinion was essentially visceral in origin . . . law and history were distorted to serve a passionate purpose" (559).

As Fehrenbacher shows, Dred Scott anticipates in its claims for the power of the judiciary not just the crusading work of the Warren Court but also much more recent decisions by its conservative heirs, such as Parker v. District of Columbia, which tips interpretation of the Second Amendment toward an absolute right to bear arms whether one is fixing to do militia duty or not, and of course the egregious Bush v. Gore. Hotly disputed Presidential elections had in the 19th century been settled by Congress, which has the responsibility of counting electoral votes, and hence in 1800, 1824, and 1876 Congressional compromises chose a President. In 2000, a heightened sense of judicial sovereignty meant mediation of a contested election by nine unelected justices.

With extreme close reading but ample clarity, Fehrenbacher explodes old myths about the Dred Scott case (it was a real suit for freedom, not a contrived test case; Taney was a real fire-eater, not a conscientious opponent of slavery). He also works through the tortuous implications of the bizarrely wide-ranging opinion itself, an opinion that strayed so far from the facts of the case that objectors to the decision liked to tar the entire opinion as obiter dicta, a rant with no legal force.

Dred Scott was still enslaved after Taney's opinion was published, but by that point he'd become a footnote to his own case. While re-enslaving him, Taney also decided that no Negro, free or slave, was a citizen of the United States. He also decided that Congress could not bar slavery from federal territories – an issue that had rent the nation apart for the entire preceding decade, over the Wilmot Proviso banning slavery from territories acquired from Mexico, over the admission of California to the Union, over Kansas. Dred Scott was moot within a few years of its promulgation. Slavery wasn't going to be established in any new states anyway. The Civil War destroyed slavery, and the 13th, 14th, and 15th Amendments overturned everything that Taney had argued. What remained, Fehrenbacher argues, is the privilege of the Court to rewrite large sections of American law.

During the final Presidential debate of 2008, moderator Bob Schieffer noted that the candidates disagreed on Roe v. Wade (Obama backing Roe, McCain favoring Wade). He proceeded to ask a nullity of a question about whether the candidates' values on Roe would be a litmus test in terms of their appointments to the Supreme Court. Of course they would be, and of course both candidates said they wouldn't be. But the fact that the question was asked at all is fascinating.

Abortion rights are one of the most permanently aggravating issues in the American polity. In writing the Court's opinion in Roe, Justice Harry Blackmun basically drafted a code governing medical, ethical, and reproductive choices for all 50 states at once. And despite some minor erosions at the edges, Roe v. Wade has not been seriously challenged in Congress ever since. Neither side wants to touch it: pro-choice advocates have what they want, and anti-abortion activists perceive it as much simpler and less politically costly to wait till the Court shifts to the right than to tackle the problem head-on via an all-out attempt at Constitutional amendment.

Judicial sovereignty now suits us just fine as a solution to many intractable social disputes, despite the fact that decisions like Roe or Parker might seem to be more political than Constitutional, based as they are in very grey areas of constitutional law (the self-consuming words of the Second Amendment, the uncertain penumbra of privacy exuding from the Bill of Rights).

And for this ever-more-powerful tradition of judicial sovereignty, we can thank, to some extent, the swiftly-crushed decision by the 1857 Taney Court and its fanatical Chief Justice. Taney lost both battle and war, but he helped set the terms whereby our fiercest disputes are increasingly entrusted to nine highly interested arbitrators.

Fehrenbacher, Don E. The Dred Scott Case: Its significance in American law and politics. New York: Oxford University Press, 1978.