A People's History of the Supreme Court

by Peter Irons

  In retrospect, it seems clear that the proslavery extremism of Chief Justice Taney doomed his cause to ultimate defeat. Most important, his assertion in Dred Scott that states which prohibited slavery nonetheless had to recognize the right of slave owners to bring their “property” into those states came close—some thought all the way—to ruling that slavery was lawful wherever slaves resided. In that case, the charge that Taney intended to “nationalize” slavery had force, and his opinion touched off an explosive reaction on both sides of the slavery issue.

  Republicans in the press and Congress denounced the ruling in heated terms: Horace Greeley’s newspaper, the New York Tribune, hurled invective at Taney’s “mean and skulking cowardice” and the “detestable hypocrisy” of his opinion. On the other side, defenders of slavery exulted: “Southern opinion on the subject of southern slavery,” trumpeted the Constitutionalist ot Augusta, Georgia, “is now the supreme law of the land . . . and opposition to southern opinion on this subject is now opposition to the Constitution, and morally treason against the Government.” Men of the cloth joined the fray, speaking from their pulpits and in the press. The Rev. George Cheever of the Church of the Puritans in New York sounded like his Puritan forebear Cotton Mather: “If the people obey this decision,” he warned, “they disobey God.” The Providence Conference of the Methodist Episcopal Church denounced Taney’s opinion as the first step toward “nationalizing slavery,” a charge soon taken up by Abraham Lincoln.

  These responses to the Dred Scott ruling, culled from a voluminous record, illustrate the extent to which Taney’s opinion dominated public attention and shaped the debate over slavery as the nation plunged into the most serious constitutional crisis in its history. The initial battles in the growing sectional conflict were fought in the halls of Congress, just above the Supreme Court chamber in which Taney struck down the congressional effort to forge a compromise on the slavery issue. The debate over slavery in the territories, of course, began more than three decades before the Court decided the Dred Scott case. But it threatened to dissolve the Union after that decision, as Congress debated the “Lecompton Constitution” for Kansas in early 1858.

  Settlers in Kansas had already fought bloody skirmishes over slavery, with deaths on both sides. Shortly after the Dred Scott decision in 1857, proslavery settlers gathered in the territorial capital of Lecompton and drafted a constitution that drew inspiration from Taney’s opinion. “The right of property is before and higher than any constitutional sanction,” it proclaimed, “and the right of the owner of a slave . . . is as inviolable as the right of the owner of any property whatever.” Taney had not based his opinion on “higher law” principles, but he clearly reflected the views of those who traced the “right of property” to a higher law than the Constitution.

  Congress became embroiled in debate over the Lecompton Constitution during much of 1858, with both the Republican and Democratic Parties seeking to curry support as elections approached in November. It was predictable that politicians, who had fought over the slavery issue for years, would pound their fists on the congressional podium. Republican senator John Hale of New Hampshire accused proslavery Democrats of attempting “to carry out this Dred Scott decision” by forcing slavery on Kansas. “I hope the men of Kansas will fight,” Hale thundered. “I hope they will resist to blood and to death.” Senator William Seward of New York, who coveted the Republican presidential nominations, spoke during the same debate. Recalling the “whisperings” between Taney and President Buchanan at the 1857 inauguration, Seward insinuated that the two men had conspired to hang “the millstone of slavery” on the peoples of Kansas.

  Southern defenders of slavery responded to this oratory with outrage. Senator Judah Benjamin of Mississippi, who had earlier declined a Supreme Court nomination and later served the Confederacy as secretary of war, defended Taney against his northern critics and praised his opinion for holding that slaves were property, a position Benjamin said reflected the “principles of eternal justice.” Taney’s old friend Reverdy Johnson, who argued and won Dred Scott before the Supreme Court, denounced Seward’s “mad and reckless” assault on the Chief Justice, accusing him of subjecting the Court, to “as calumnious all attack as ever dishonored human lips.” Taney later told his biographer that he would have refused to administer the oath of office if Seward had been elected president in 1860.

  Democrats controlled both houses of Congress in 1858, but their party was split over the Kansas question. Southern Democrats, supported by President Buchanan, tried to push the proslavery constitution through Congress. But the party’s northern wing, led by Senator Stephen Douglas of Illinois, feared that Republicans would brand them as pawns of the slave owners. Not only would Douglas face the Illinois voters that fall in seeking reelection to his Senate seat, but he also coveted his party’s presidential nomination in 1860. Douglas knew that most Illinois voters opposed the admission of Kansas as a slave state. Torn between party loyalty and personal interest, he decided to lead a revolt against Buchanan.

  Faced with Douglas’s defection, President Buchanan reached into his patronage bag and handed out enough federal jobs to force another compromise through Congress. He prevailed on Representative William English of Indiana to sponsors a “compromise” bill that would admit Kansas to statehood with the proslavery Lecompton Constitution, conditioned on approval by Kansas voters of a federal “land grant” from Congress, which offered the carrot of cheap farmland to settlers. Pressured by Buchanan, most northern Democrats supported the English bill, and it became law. Breaking with his party, Senator Douglas voted with the Republican minority, a stand that gained him votes in Illinois and cost him support in the South. Presented with a congressional “compromise” that would allow slavery in their state, voters in Kansas buried the Lecompton Constitution in August 1858 by an overwhelming margin.

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  “Another Explosion Will Soon Come”

  The most dramatic consequence of Taney’s ruling in Dred Scott, and the one most Americans recall from history lessons, came in the face-to-face debates between Abraham Lincoln and Stephen Douglas in 1858, when the two men campaigned across Illinois for the Senate seat Douglas then held. Douglas tried to distance himself from Taney’s effort to “nationalize” slavery by advocating “popular sovereignty” on slavery in the territories—letting the voters in each territory decide the question. Ironically, six months before the Dred Scott ruling, Abraham Lincoln had spoken for Republicans in telling Democrats that the Supreme Court was the body charged with deciding the issue of slavery in the territories and that “we will submit to its decisions; and if you do also, there will be an end to the matter.” Shortly after the ruling, Lincoln changed his tune and claimed that “the Dred Scott decision is erroneous. We know the court that made it has often overruled its own decisions, and we shall do what we can to have it overrule this. We offer no resistances to it.”

  During the twenty months between the Dred Scott decision and the 1858 elections, Lincoln and Douglas spoke to hundreds of audiences in Illinois and around the country, and they discussed the case in almost every speech. The seven formal—and now famous—debates between the two senatorial candidates focused largely on the Court’s ruling and its consequences for national unity, as talk of secession grew louder in the South. The Constitution had become the topic of stump speeches, barroom debate, and dinner-table conversation across the nation. During the Lincoln-Douglas debates, each man charged his opponent with hostility to the Constitution. Douglas accused Lincoln of conducting “warfare on the Supreme Court,” whille Lincoln shot back that Douglas was complicit in a “conspiracy to perpetuate and nationalize slavery.”

  As the Senate election neared, the campaign rhetoric became more heated. Douglas insinuated that Lincoln favored the “amalgamation” of the races, which drew an indignant denial. He had no desire to “set the niggers and white people to marry together,” Linco
ln assured his listeners in Ottawa, Illinois. During their debate in Charleston, Lincoln declared that “I am not, nor ever have been, in favor of bringing about the social and political equality of the white and black races.” In their last debate in Alton, Lincoln spoke for more than two hours on Dred Scott, tearing apart the ruling on the Missouri Compromise. But he pointedly denied any difference with Taney on the issue of black citizenship. “I am not in favor of Negro citizenship,” Lincoln stated firmly.

  Douglas narrowly bested Lincoln in this crucial electoral test of public sentiment on the slavery issue. Shortly after his defeat, Lincoln wrote to a friend that “Douglas had the ingenuity to be supported in the late contest both as the best means to break down and to uphold the slave interest. No ingenuity can keep these antagonistic elements in harmony long. Another explosion will soon come.” Lincoln was prophetic in more than one way. Douglas continued to support “popular sovereignty” in voting on slavery, which prompted the southern Democrats in the Senate to depose him as chairman of the Committee on Territories after eleven years in that post. As the presidential campaign of 1860 neared, the Democrats fought bitterly over southern demands for federal legislation to protect slavery in the territories. Douglas opposed the bill sponsored by Senator Jefferson Davis of Mississippi, and the Republicans exulted at the internecine warfare amoung their opponents. “The Dred Scott decision,” one Republican stated, “is the only Democratic platform that now exists.”

  The Democratic convention in 1860, which met in the proslavery stronghold of Charleston, South Carolina, turned conflict into chaos. Party rules required a two-thirds majority to nominate a candidate, but only a simple majority to adopt a platform. Delegates who favored Douglas outnumbered those who supported other candidates, but southerners had enough votes to block Douglas. The platform committee, with one delegate from each state, adopted by a one-vote margin a proslavery document that rejected Douglas’s “popular sovereinghty” position and called for support of the Jefferson Davis bill to protect slavery. The Douglas forces on the convention floor rejected the proposed platform, which prompted the delegates from eight, southern states to walk out.

  The convention promptly adjourned in confusion, and the delegates assembled two months later in Baltimore. After a bitter wrangle over seating rival delegations, the southerners again walked out, leaving Douglas with the nomination but without half of his party. Those who bolted in Baltimore later nominated Vice President John Breckinridge as the second Democratic candidate, running on a platform that endorsed the Dred Scott decision. Meanwhile, the Republicans surprised many, including Abraham Lincoln, by nominating him for president over Senator William Seward, a party stalwart with more national prominence than Lincoln. A fourth candidate, John Bell of Tennessee, represented diehard Whigs who now called themselves the Constitutional Union Party. The presidential campaign of 1860 had none of the drama or suspense of the Senate contest between Douglas and Lincoln. With the Democrats fatally Split, Lincoln won easily; although he received less than 40 percent of the popular vote, he garnered 60 percent of the electoral votes.

  Lincoln had predicted the “explosion” in the Democratic Party, which blew apart over the Dred Scott decision. But a much greater explosion shook the nation soon after Lincoln’s inauguration on March 4, 1861. The new president, the first Republican in the White House, spoke to a throng art the Capitol for an hour about the Constitution and the Supreme Court in measured, sober words. Lincoln appealed to the Constitution more than twenty times, as the foundation of the Union and protector of minorities, alluding to southern defenders of slavery and not to the slaves. “All the vital rights of minorities,” he said; “are so plainly assured . . . in the Constitution, that controversies never arise concerning them.” But the Constitution cannot “express provisions for all possible questions.”

  Lincoln turned to the burning questions of the time. “May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say. From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the government must cease.” Lincoln had discussed Dred Scott in hundreds of speeches over the past four years, deploring the Court’s decision, but he spoke in general terms in his inaugural address. He agreed that “constitutional questions are to be decided by the Supreme Court” and that its decisions were binding “upon the parties to a suit, as to the object of that suit,” but Lincoln did not show much deference to the Court. Its decisions were “entitled to very hight respect and consideration” by the other branches of government, a far cry from the position of judicial supremacy that Marshall had fashioned and that Taney had shaped to his own uses.

  With the Chief Justice sitting uncomfortably behind him, Lincoln spoke critically of the Court, asserting that “if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribune.” In this lengthy sentence, and without mention of the Dred Scott decision, Lincoln delivered a forceful rebuke to Taney and those who had voted with him, although he disclaimed “any assault upon the court or the judges.” The justices were not to blame “if others seek to turn their decisions to political purposes.” But the president did blame Taney for writing a political tract in his opinion, and for handing ammunition to his fellow proslavery extremists.

  Many presidents have criticized the Supreme Court, before and since Lincoln, from Jefferson’s campaign to impeach justice Samuel Chase to Franklin Roosevelt’s attack on the “Nine Old Men” who blocked his New Deal program. But never has a president spoken at such length of the Constitution and its role in national life. Lincoln, of course, came to office during the greatest constitutional crisis the nation ever faced, and he brought to his speech—delivered as the country slid ever more quickly into civil war—a profound respect for the Constitution, tempered with an appreciation of the Court’s role as a political body.

  Just five weeks after Lincoln’s inaugural address, on April 12, Contederate forces fired on Fort Summer in South Carolina, and its beleaguered defenders waved the white flag of surrender on April 14. That same day, Lincoln called the Congress into special session, citing “the power in me vested by the Constitution” to call out the state militias and “to cause the laws to be duly executed.” The Civil War had begun. Before it ended in 1865, some 600,000 Americans—most of them young men in blue or gray uniforms—lost their lives in battles whose first shots were fired by the Sipreme Court in 1857.

  The Civil War changed American society in profound and lasting ways, and the Supreme Court changed as well before that bloody conflict ended. The most significant change came with the death of Chief Justice Taney in October 1864, but the Taney Court was almost dead before its leader was buried, after the resignations of two justices and the deaths of two others. Both of the Dred Scott dissenters were gone: Benjamin Curtis resigned in disgust, six months after the decision; and John McLean died in April 1861, days before the Confederates fired on Fort Sumter. Two justices in the Dred Scott majority also left the Court: Peter Daniel died in 1860, and John Campbell resigned just days after Fort Sumter fell, to serve the Confederacy as assistant war secretary.

  The abrupt departure of Justice Curtis gave James Buchanan, a thoroughly undistinguished president, his only chance to influence the Court. He filled the “New England seat” in 1858 with a fellow Democrat, Nathan Clifford of Maine, who was a close friend of Chief justice. Taney and had expressed southern sympathies. Antislavery forces opposed his confirmation, and Clifford barely survived a Senate battle, winning his seat by three vot
es. After that shaky start, he served for twenty-three years and wrote some four hundred opinions, none of them still remembered. His judicial record was as undistinguished as Buchanan’s in the White House.

  The death of justice Daniel in 1860 actually gave Buchanan a second Court seat to fill. But be took too long to choose between several candidates, and his final choice, Jeremiah Black of Pennsylvania, fell victim to election-year politics. Buchanan’s party rival, Senator Stephan Douglas, opposed Black, and his confirmation lost by one vote. Douglas had reluctantly handed Abraham Lincoln a judicial plum, which the new president gave to Noah Swayne, an Ohio lawyer with strong abolitionist views but southern roots. His nominations sailed through the Senate in 1862 with just one dissent, and Swayne served for nineteen years, voting consistently to uphold civil rights laws and federal power over the states.

  Lincoln’s five Court nominations were tightly bunched together in the two years between 1862 and 1864. Samuel Miller of lowa, who replaced Peter Daniel, and David Davis of Illinois, who took the seat abandoned by John Campbell, both joined the Court in 1862. Lincoln hardly knew Miller, while Davis was a home-state friend and political ally, but both men were loyal Republicans and noted lawyers. Miller served on the Court for twenty-eight years and Davis for fifteen, and both left indelible marks on constitutional law, although their opinions in landmark cases rejected both presidential and federal power and would likely have pained Lincoln, had he lived through his second term.