Confederate "Heritage" Month 2022, April 30: The "Dred Scott" decision and the politics of a radicalized Supreme Court

This year's daily April posts against Confederate "Heritage" Month spilled over into May until today. Earlier in this year's series of posts, I discussed the Supreme Court catastrophic Dred Scott decision (1857).

During the first week of May, we've seen a leaked Supreme Court majority opinion draft by Justice Samuel Alito overturning Roe v. Wade that reminds us that a radicalized, crassly ideological, reactionary Supreme Court is by no means only a phenomenon of the 1850s. As of this writing, the decision described in Alito's leaded draft has not been formally announced.

Dred Scott still stands as the Supreme Court decision most destructive in its immediate effects, and I certainly wouldn't want to deprive Chief Justice Roger Taney and his judicial confederates of that malign distinction.

But it has certainly not been the only one. Plessy v. Ferguson (1896) and Bush v. Gore (2000) are high on the list.

So the example of a radical Supreme Court as a significant anti-democracy actor represented by the Dred Scott Court is sadly still relevant.

Paul Finkelman in his essay "The Strange Career of Dred Scott: From Fort Armstrong to Guantánamo Bay" (in The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law 2010) describes the decision:

In Dred Scott the Supreme Court held three things: that blacks could never be citizens of the United States and, therefore, could never sue in federal court as citizens of a state; that Congress had no power to regulate the territories beyond setting up a minimalist form of government; and that the Bill of Rights was applicable to all federal territories and thus neither Congress nor a territorial government could ban slavery in the territories, because this would be an unconstitutional taking of property in violation of the Fifth Amendment.

This decision effectively eliminated the possibility of an abolition of slavery without widespread violence. In fact, the Kansas-Nebraska Act of 1854 had already set off five years of a mini-civil-war in the Kansas Territory ("Bleeding Kansas"). The Dred Scott decision added more fuel to the fire.

Finkelman gives further disturbing details of Chief Justice Taney's majority opinion:

Taney used some of the most racist language in American jurisprudence, arguing that at the nation’s founding blacks were “not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which the instrument provides for and secures to citizens of the United States. On the contrary, they were at that time [1787] 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 but such as those who held the power and the Government might choose to grant them.” According to Taney, blacks were “so far inferior, that they had no rights which the white man was bound to respect.” [my emphasis]

He also notes:

Taney in effect argued that the Constitution created a kind of dual citizenship—state and federal—and that, while the states might make anyone a citizen, federal citizenship was limited only to whites because it was impossible for Taney to imagine that the Southern founders of the nation would have agreed to the Constitution if blacks were to be citizens.

And he writes of the political aftermath:

In reaching this conclusion Taney held that the Missouri Compromise, in force since 1820, was unconstitutional. This was only the second time in U.S. history that the Court had held an act of Congress to be unconstitutional. The last time had been in 1803 when the Court struck down a minor provision of the Judiciary Act of 1803 in Marbury v. Madison. But here the Court struck down a major statute — one of the most important in the nation’s political history — and one that had been in force for thirty-seven years. This was truly a bombshell and, combined with the racism of Taney’s opinion, led to a huge backlash against the decision in much of the North. [my emphasis]

He also points out that Taney was plainly wrong in his reading that the denial of citizenship to Black Americans was not what Sam Alito might call "deeply rooted in this Nation's history and tradition." In fact, Finkelman writes:

In 1787 blacks voted in at least six states (Massachusetts, New Hampshire, New York, New Jersey, Pennsylvania, and North Carolina) and thus took part in the ratification of the Constitution. By 1800 Vermont and Tennessee had also enfranchised blacks. ...

[Taney] was of course wrong in his assumptions. Many white Northerners who were conventionally racist and did not want blacks to have significant rights still believed they had some rights. They were shocked by the boldness of Taney’s racism and his slanted, one-sided, and often wrong history of the founding. Free blacks had, after all, voted in at least six states when the Constitution was ratified. It was simply impossible for these Northerners — typified by Lincoln — to accept that free blacks had “no rights” under the Constitution. Even some white Southerners were not willing to accept the idea. [my emphasis]