Commentary: Echoes of painful high court decision reverberated today

By Samuel Damren

In mid-December 2022, the House of Representatives passed legislation to remove the bust of Justice Roger Taney from the old Supreme Court Chamber, today a museum in the Capitol building. Taney was a justice of the Supreme Court from 1836-64 and the author of the majority opinion in Dred Scott v. Sandford (1857).

When announced, Taney’s opinion was vilified by Northerners. From the aftermath of the Civil War to the present, it is widely regarded as the worst decision in Supreme Court history.

This commentary is the first in a series discussing cautionary lessons from the case that are relevant today.

Reading Taney’s opinion is painful. A staunch supporter of President Andrew Jackson, and his Attorney General from 1831-33, Taney was a devout and uncompromising racist.

The Dred Scott opinion was crafted not only to deny Dred Scott and his family their freedom, but to decree that persons of “negro African descent” were inferior to “whites” and forever unfit to become “citizens” of the United States.

Based on the interpretive theory of originalism and contending that a singular meaning for the words of the Constitution is discernable and was forever fixed at the time of its signing and ratification, Taney made supposed findings of “historical facts.”

Those findings buttressed his legal conclusion that under the Constitution, states could make slavery a permanent institution within their borders for all descendant “negroes” and that slavery could expand in America’s territories without interference from the federal government.

Taney’s findings of “historical facts” were a concocted narrative of cherry-picked events from a much wider canvas.

In an exhaustive article in the June 2022 issue of the Journal of Constitutional Law, Paul Finkelman, the chancellor and distinguished professor of History at Gratz College, excoriates Taney’s supposed “findings” regarding “Black Rights in the Age of the Revolution” as “racist and historically inaccurate.”

How did Taney get away with this? The answer, confounding to any measure of judicial integrity, is easily and with impunity.

There is no Supreme Court of History, and Supreme Court justices have never been subject to a Code of Ethics. As a result, because justices of the Supreme Court practicing originalism can make findings of “historical facts,” they are also free to misrepresent “historical facts” and to call those supposed facts “truth.”

Under originalism, no guardrails exist to the presentation of “historical facts.” The supposed facts are not subject to cross examination, and do not satisfy evidentiary or other constraints of the adversarial system. Bias and partisan slants are not disqualifying. A majority of justices, then and now, can sort through whatever material they choose and make it up as it goes, just as Justice Taney did.

Professor Finkelman concurs. Taney “offered an originalist argument that was selective and misleading."

A threshold question in Dred Scott, according to Taney, was whether the federal courts had jurisdiction over the case. The answer, he asserted, turned on whether Dred Scott should be considered a “citizen.”

Taney framed the issue as follows: can the “class of persons” compromising the “descendants” of “negroes of the African race” who were “imported into this country, and sold and held as slaves” be regarded after “emancipation” as “citizens of a State, in the sense in which the word is used in the Constitution of the United States.”

The Constitution does not provide an explicit answer to Taney’s question. But framing the issue in this fashion, sets the narrative. Property can be “imported”; persons “arrive.”

In the trial court, the issue was not the subject of an evidentiary hearing; nor had the parties raised it in their appeals. However, Taney regarded the issue as jurisdictional and reached out to decide it based solely on the pleadings and supposed historical findings.

From Taney’s perspective, “citizens” composed the constituent members of the “sovereign people.”

That “class of persons” did not include Dred Scott. “On the contrary,” Taney found, persons such as Dred Scott “were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges.”

“It is true,” Taney found, “every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else.” Without any words in the Constitution saying so, Taney found that members of the “negro African race” were “intended to be excluded from” membership in the “sovereign people.”

“It is difficult at this day,” Taney observed, “to realize the state of public opinion in relation to that unfortunate race” at the time the Constitution was adopted. “But,” Taney continues, “the public history of every European nation displays it in a manner too plain to be mistaken.”

According to Taney, and in his words, members of the “negro African race” had “for more than a century” prior to ratification been regarded “altogether unfit to associate with the white race.” They possessed “no rights which the white man was bound to respect,” could be “reduced to slavery” and treated “as an ordinary article of merchandise.”

As a result of these supposed historical “facts,” Taney concluded that the colonists intended to erect “a perpetual and impassable barrier” between members of the “white race” and “negroes or mulattoes” such that “this stigma, of the deepest degradation, was fixed upon the whole race.”

There is nothing like this in the wording of the Constitution.

In his article, Professor Finkelman notes that contrary to Taney’s historical findings, “blacks voted in a number of states before ratification of the Constitution” and, as such, were part of what Taney called “the new body politic.” In addition, Taney well knew, but neglected to acknowledge, that blacks served as soldiers in the French and Indian War and many with the Patriots in the Revolutionary War.

Taney also cited legislation to bolster and reflect his findings. But, as Finkelman observes, those laws were an “idiosyncratic mishmash of statutes from the colonial era,” including bans on interracial marriage. As just one example, Taney conveniently ignored the fact that “New York, New Hampshire and Pennsylvania had never enacted prohibitions on interracial marriage.”

In analyzing Connecticut law, Taney similarly ignored a 1784 Connecticut statute providing “a gradual abolition, which put the state on the road to ending all slavery in the state.” In this instance, Finkelman concludes that Taney’s “analysis was simply dishonest.”

The two dissents in Dred Scott also point out numerous errors of fact and law in Taney’s opinion.

In sharp contrast to Taney’s view of American sentiments on race in the Revolutionary era, Finkelman asserts that the culture was rapidly changing in the Northern states. Indeed, it is his well-supported thesis that the American “age of Revolution” also contained “the first civil rights movement” on race.

Taney was not so poor a lawyer that he was unaware of the faults in his majority opinion. He drafted the opinion to satisfy President-elect James Buchanan’s request that the Supreme Court find a comprehensive solution to the slavery controversy to coincide with his inauguration. Taney obliged.

Taney betrayed his judicial integrity in service of this end not only by publishing and lending authority to a false narrative, but, as will be discussed, in his conduct toward his fellow Justices.

The urge to conflate judicial purpose with executive prerogative, as Taney did in acting on Buchanan’s behalf, exposed another tension and risk to the American form of government. From the past to the present day, many Americans, including some political leaders, have demonstrated a pronounced willingness to treat our democratic institutions as mere window dressing, or less, when voicing preference for a more “singular” authority.

Those topics are the subjects of the next commentary in this series.