The Dred Scott Case

"Dred Scott is one of the most infamous decisions in American constitutional history. Don Fehrenbacher, who was a historian at Stanford, gets 600 fascinating pages out of it. The issue was whether Congress could bar slavery from federal territories. Back in 1787, Congress passed the Northwest Ordinance, which barred slavery from the Northwestern territory of the United States, the area that later became Ohio, Illinois, Indiana, etc. Fehrenbacher follows that story through the various political crises provoked by slavery—the 1820 Missouri Compromise, the fight over the Kansas-Nebraska Act in 1854. Then you get to Dred Scott in 1857. A doctor in the army, who started out in Missouri and spent time in Illinois and the Minnesota territory, considered himself to be the owner of Dred Scott. When the doctor returns to Missouri, abolitionists in St. Louis get wind of the fact that Dred Scott has been taken to jurisdictions where slavery is forbidden. They bring a lawsuit, which winds its way through the state courts. Then the lawsuit winds its way through the federal courts to the Supreme Court. At that time, many feared the five Southern justices would split with the Northern justices in a way that would split the country. Fehrenbacher reveals the detailed internal history of how President James Buchanan tries to get the justices to write an opinion that will not reflect their regional split. He gets the justices to reveal what the decision will say so when he writes his inaugural address, which is delivered just before the Dred Scott decision comes down, he asks the nation to rally around the Supreme Court. Then Fehrenbacher faces the question of the decision’s impact. Some people think Dred Scott helped cause the Civil War. He analyzes what exactly happens after Dred Scott ; he looks at the state elections to figure out whether Dred Scott helped the Republican party. Does it produce a backlash that leads to Lincoln’s election? It’s 600 pages of brilliant legal and political history. Dred Scott is often seen as the most egregious decision in American constitutional history. Yet most Americans, ironically, almost certainly agreed with it when it was decided. It’s only with the aid of hindsight that it seems like such an abomination. Justices always think about those things, though most of them would deny it publicly. Chief Justice Taney clearly believed that he was doing the country a service by taking on the issue of slavery in the territories, which was too controversial for Congress, literally. Congress could not resolve it because the South tended to control the Senate and the North tended to control the House, so Congress was in a deadlock in 1849-1850, over what to do with slavery in the territory that had been acquired in the war with Mexico. So Chief Justice Taney thought he was taking a hot potato issue off the table and binding the country together by taking on Dred Scott . “ Dred Scott is one of the most infamous decisions in American constitutional history” They do that sort of thing all the time. That’s what the Supreme Court tried to do in the 1992 Casey abortion case, where the plurality opinion quite clearly says, ‘we are calling on the nation to come together and respect our decision on abortion.’ In a 2012 case, the Court came within an inch of striking down the Affordable Care Act, but we know that Chief Justice Roberts got cold feet at the last moment about striking down what was arguably the most important piece of domestic legislation since the 1960s in the midst of a presidential election. Other examples include Bakke , the famous affirmative action case in 1978. Four justices wanted to strike down affirmative action, and four justices wanted to uphold affirmative action. Justice Powell was the decisive vote. He split the difference. He said some forms of affirmative action are okay, but what the University of California Davis has done here is not okay. These decisions purport to be legal, but they’re statesman-like efforts to split the difference between the two sides. As for unpredictable consequences from decisions, in 1972 five justices clearly thought they were invalidating the death penalty. They were shocked when 35 states passed new death penalty laws within the next four years. And public opinion polls showed dramatically increased support for capital punishment. Four years later, the Court agreed to allow some forms of death penalty statutes and not others. It’s not unusual for a Court decision that advances too far beyond what public opinion will accept to produce backlash. Justices are aware of that. Even though they would deny that this is a legitimate thing to take into account, they do it all the time."