In an epic act of transactional brokerage, managed by Senators Henry Clay of Kentucky, a Whig, and Democrat Stephen Douglas of Illinois, Congress hammered together a new bundle of agreements in 1850 that included admission of California as a free state. In return, the South received a tougher Fugitive Slave Law and the ambiguous prospect of “territorial sovereignty” that would allow territories to decide for themselves whether to exclude slavery, so long as their actions were “consistent with the Constitution.” Firebrands North and South, with their radically different views of what the Constitution required, condemned the Compromise of 1850 as an evasion, and so it was, undermining the Missouri Compromise without settling the central question of federal power over the territories. The issue of slavery in the United States could not be faced squarely. The Compromise was politics both at its best and at its worst as the art of the possible. At stake, the great Massachusetts senator Daniel Webster insisted, was “the preservation of the Union.”
EVEN AS POLITICIANS bickered and bargained, the Supreme Court was largely a bystander. For decades after the nation’s founding, no questions of slavery’s constitutional status came before the court, nor did justices seek them out. John Marshall’s nationalizing crusade raised Southern fears that federal power would strike at slavery, but the chief justice, a slave owner himself and well aware of the dilemma slavery posed for the Union’s survival, shunned confrontation. The man who spread federal power over the widest ranges of politics, law, economics, and society decided that slavery was the business of the states.
As polarization over slavery had intensified in the decades between the two great compromises, the Supreme Court was packed by aggressively pro-slavery Southerners and Northerners sympathetic to the South’s concerns. Control of the presidency and Congress by the Democratic party with its dominant Southern base ensured this distorted representation. Nominees had to be sound on states’ rights—no more Marshalls!—and attuned to the South’s peculiar sensitivities. Four of Andrew Jackson’s six appointments in his two terms were Southerners and slave owners. One, Philip Barbour, had played a prominent role in his native Virginia’s resistance to Marshall. Though Barbour died after only four years on the court, in 1841, President Martin Van Buren, a New Yorker who was the heir to Jackson’s Democracy, quickly named an even more extreme anti-nationalist Virginian, Peter Daniel.
But Jackson had already left a time bomb on the Supreme Court—Marshall’s successor as chief justice, Roger B. Taney. Born in Maryland to a family of planters, Taney joined the Federalists in the 1790s, becoming a party leader in his home state and a supporter of the Bank of the United States in the controversy that led to Marshall’s McCulloch decision. But in the early 1820s, when he was in his forties, Taney underwent a conversion. With the Federalist party in tatters, Taney fell back on the states’ rights doctrine. By 1824, he was the most loyal of Jacksonian Democrats. Later, as Jackson’s attorney general and, on a recess appointment, secretary of the treasury, his enthusiastic support of the president’s war on the Bank earned him Jackson’s lasting gratitude—and the enduring enmity of the opposition Whigs. After pro-Bank Whigs in the Senate blocked Taney’s confirmation as treasury secretary in 1834, an angry Jackson vowed to discharge the “debt of gratitude and regard” he owed Taney as a “martyr” to the “corrupting domination of a great moneyed power.”
The retirement of Justice Gabriel Duvall in January 1835 gave the president his chance. He named Taney to the court as an associate justice. But Whigs stalled the nomination. When Marshall died a few months later, Jackson sent Taney’s name back to the Senate, now for the chief justiceship. This time Democrats pushed the nomination through.
Taney’s late conversion to anti-Marshallian doctrines was apparent in his first major decision, the 1837 Charles River Bridge case. The corporation that owned a half-century old bridge between Boston and Charlestown had sued to stop the construction of a competitor chartered by Massachusetts in 1828, arguing that the new bridge violated its own 1785 charter with the state. Its appeal rested on the Constitution’s prohibition of state laws that impaired “the obligation of contracts.” The case had first come before Marshall’s Supreme Court in 1831, but divisions among the justices prevented a decision. By the time it was reheard in 1837, the competing bridge had been in operation for nearly a decade—and Taney was chief justice. In his opinion for the court’s majority, Taney put into the balance a corporation’s property and contract rights and the responsibilities of government. Marshall would have favored the “sacred” rights of property and contract over a state law, but Taney wrote that “while the rights of private property are sacredly guarded, we must not forget, that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation.” Over the objections of Marshall’s old collaborator Justice Story, who dismissed Taney’s invocation of social benefits as “speculative niceties or novelties,” the court upheld the Massachusetts charter of the competing bridge. Some Democrats who had feared that Taney might revert to Federalism once on the bench breathed a sigh of relief.
But Taney did not aim to overthrow his predecessor. In cases involving implied powers, while not rejecting Marshall’s McCulloch holding, Taney construed the sphere of federal authority more narrowly, all the while cautiously extending the powers of state governments in areas where Congress had not legislated, especially in matters of commercial regulation and public health. And in 1849, in Luther v. Borden, Taney announced an appealing new doctrine of judicial restraint, writing that certain inherently political issues were the exclusive province of the political branches, whose decisions “could not be questioned in a judicial tribunal.” Even many Whigs were impressed by the modesty and pragmatism of the chief justice’s jurisprudence.
There was, though, one exception to Taney’s moderation and restraint, where those qualities might best have served the court and the country. As Jackson’s attorney general, he had held a racist conception of the constitutional status of African Americans, writing in an unpublished opinion that “the African race in the United States even when free, are every where a degraded class.” Even when free, blacks “permitted to be citizens by the sufferance of the white population . . . hold whatever rights they enjoy at their mercy.”
As chief justice, Taney would brook no tampering with the status quo of slavery, no matter the source, and especially not from Congress, whose power he saw as limited to the protection of slavery and slave owners. The chief justice lost no opportunity to make that clear. In one of the first slavery cases to come before Taney’s court, in 1841, the chief justice wrote a concurrence—one of only fourteen separate opinions he wrote in thirty years—to underline his view that the federal government had no power whatever to regulate the interstate slave trade, an issue that did not happen to be before the court in that case.
A decade later, a case arrived at the Supreme Court that involved a group of slave musicians from Kentucky who had been taken to perform in the free state of Ohio. They returned to Kentucky but later, with the aid of sympathetic whites, escaped to Canada. Their owner sued the white sympathizers for damages, his loss of property in the slaves. The defendants argued that they were not liable because the musicians had not been the owner’s property at the time of their escape—their sojourn on free Ohio soil had made them free men.
Deciding Strader v. Graham in 1851, Taney first denied that the Supreme Court had jurisdiction—thus allowing a Kentucky court’s ruling against the white defendants to stand—and then went on gratuitously to opine that the slave state, Kentucky, had exclusive control of the legal status of its black residents. It was not the business of the federal government or for that matter of Ohio. For Taney, states’ rights reached their limit when a state’s laws protected the rights of blacks. In an earlier decision, Prigg v. Pennsylvania, the Taney Court had upheld the constitutionality of the 1793 Fugitive Slave Act even though, as abolitionists pointed out, the law interfered with the right
s of Northern states to offer procedural safeguards, such as jury trials and habeas corpus, to fugitive slaves pursued by “slave catchers.”
It was no wonder that Taney’s court, packed as it was with slave owners, consistently returned decisions supporting slavery. The real wonder was that, in the mid-1850s, desperate politicians, including Northerners, were looking to this Supreme Court for the ultimate compromise—the final settlement—that would save the Union from political collapse and war.
AS THE CASE of Dred Scott worked its long way through state and federal courts, the Compromise of 1850, whose authors had promised it would bring “finality” to the slavery conflict, was inciting new rounds of violent talk and action. Fire-breathing secessionists mobilized in the South, while abolitionists vowed defiance of the new Fugitive Slave Law. In 1854, a last, futile compromise was forced through Congress to get the lawmakers out of the hopeless business of deciding slavery in the territories. The Kansas-Nebraska Act enshrined the principle “that all questions pertaining to slavery in the Territories, and in the new States to be formed therefrom,” should be left to the people who lived there. By explicitly repealing the Missouri Compromise’s exclusion of slavery from northern territories, Congress opened the Great Plains to colonization by slaveholders. It ignited a proxy war in Kansas as free-state and pro-slavery emigrants flooded in to battle for control of the territory. The act was also a political catastrophe: the Whig party collapsed and Democrats split between North and South. A new Republican party emerged from the ashes, pledged to resist the slave power.
Dred Scott was born a slave, probably in Virginia, and taken by his first owner to Missouri in 1830, when he was about thirty years old. After that owner died two years later, Scott was sold to an army doctor, John Emerson, and taken to posts in the free state of Illinois and the Wisconsin Territory, which was free soil under the Missouri Compromise. After six years, Scott returned to Missouri, and in 1846 he filed the first suit for his freedom in a Missouri court. Scott claimed that he had been emancipated by his long residence in free jurisdictions and could not be reenslaved on his return to Missouri. A lower court, relying on state precedents that went back to the 1820s, granted Scott his freedom, but in 1852, the Missouri Supreme Court overturned the decision. It threw out the precedents because “times are not now as they were.” Now “a dark and fell spirit in relation to slavery”—abolition—was threatening “the overthrow and destruction of our government.”
Scott and his supporters—including children of his first owner—turned to the federal judiciary, bringing a new freedom suit in circuit court in 1854. By now Emerson was dead, and Scott had become the property of his brother-in-law John Sanford. Filing as a Missouri citizen, Scott again claimed that his stay on free soil had made him a free man and he could not be held by Sanford against his will. But Sanford’s attorney argued that as a black man, Scott could not be a citizen of Missouri and so could not file a federal suit. Without settling the issue of Scott’s citizenship, the federal judge accepted the suit. But when the case came to trial, the judge, citing Taney’s opinion in Strader, instructed the jury to find against Scott.
Then the case moved to the Supreme Court, where it was first argued in February 1856. To their brief against Scott’s citizenship, Sanford’s attorneys added a new—and potentially explosive—contention. Part of Scott’s claim to freedom rested on his residency in the free Wisconsin Territory. But, Sanford’s lawyers maintained, the legislation that had established Wisconsin as a free territory was unconstitutional because Congress lacked the power to regulate slavery in the territories. In other words, the Missouri Compromise was unconstitutional. Though Congress had repealed it in 1854, the principles the Compromise embodied—above all, Congress’s authority over slavery—were still dividing the nation in 1856. A few newspapers noticed the daring argument, but the press was distracted by the Kansas violence, volatile debates in Congress, and the start of the presidential campaign.
Early signs suggested that the justices would prudently avoid ruling on the Compromise, but they could come to no decision on Scott’s citizenship and ordered a rehearing on that issue in December 1856. By that time, a Pennsylvania Democrat, James Buchanan, had won the presidency in a bitterly fought election that settled nothing. Congress was racked by debates over an inflammatory statement by the outgoing president, Franklin Pierce, that Congress had no power over slavery in the territories. The Missouri Compromise, Pierce declared, was unconstitutional, a “dead letter in law.” Eyes now turned to the Supreme Court, where a case involving that very issue was being heard.
At the December rehearing, the lawyers only briefly addressed Scott’s citizenship. Instead, in an echo of the political debates in Congress and across the country, they clashed over congressional power. Sanford’s attorney acknowledged that the Missouri Compromise may have been a “compromise of principle necessary to the existence of the Union,” but that did not justify Congress’s unconstitutional action in legislating limits on slavery.
The justices again seemed reluctant to involve themselves in the furor. The initial opinion, drafted by Samuel Nelson, a New York Democrat expert in admiralty and patent law who had been appointed to the high court by the lapsed Whig John Tyler in 1845, was a model of judicial restraint, little more than an affirmation of the circuit court’s ruling against Scott. Political questions would have been left to the political branches to resolve—or fail to resolve. On any issue other than slavery, the chief justice might have drafted such an opinion himself, as Nelson subtly suggested by quoting Taney to prove there was no reason to rule on the Missouri Compromise.
But in mid-February, on a motion by Justice James Wayne, a slaveholding Jackson appointee from Georgia, the court abruptly shifted course. The Southern justices abandoned Nelson to form a new majority behind a strong pro-Southern opinion. Taney, who until then had been sitting neutrally in conferences on the case, agreed to write it himself.
Why the sudden switch? The Southerners blamed the two Northern dissenters from Nelson’s opinion, Justice McLean, Jackson’s first appointment, and Benjamin Curtis, the court’s sole Whig, a Massachusetts conservative named by Millard Fillmore in 1851. The Southerners claimed that they had been willing to go along with Nelson, but when McLean and Curtis insisted on defending the Missouri Compromise in their dissents, they could not leave them unanswered. James Buchanan also came in for blame. The president-elect was in touch with John Catron, the Tennessee slave owner who was Jackson’s last justice, nominated on Jackson’s last day in office to fill one of the two new seats Congress had created in 1837 to cement the Democratic hold on the Supreme Court. Buchanan indicated that he was eager for the court to settle the territorial question before he took office. A pro-Southern Pennsylvanian, he feared that the issue would otherwise swallow his presidency. He successfully pressured his fellow Pennsylvanian, Justice Robert Grier, to join Taney’s Southern bloc so that it should not appear, in Grier’s words, that “the line of latitude should mark the line of division in the court.”
The true reason for the Southern switch may have been the simplest. The Southern justices, while ostensibly backing Nelson, had waited for the excuse to issue the pro-slavery opinion they had wanted in the first place. And Taney’s passivity in conference? As historian Don Fehrenbacher concluded in his exhaustive study of the case, “The Chief Justice wrote the opinion that he had wanted to write all along.”
That opinion was not long in coming, only two weeks after the Southern coup in conference. Perhaps Taney had been writing it all along. The verdict could scarcely have been more sweeping and decisive. On the jurisdictional issue, Taney constructed an intricate and confused distinction between state and federal citizenship, but his conclusion was stark: Dred Scott was not—could never be—a citizen of the United States. No black man or woman descended from an American slave could claim national citizenship under the Constitution, which relegated blacks to a “subordinate and inferior class of beings who had been subjugated by th
e dominant race” and who had “no rights which the white man was bound to respect,” including the right to seek redress in a federal court. In Taney’s reading, Scott could not be a citizen of Missouri either—or of any state for that matter, since, the chief justice mistakenly asserted, no state had accorded blacks that status—but Scott was subject to Missouri law, and by the ruling of the state’s highest court, he remained a slave.
Having vehemently denied his court’s jurisdiction, Taney had no need to go further. But further he did go, on to the Missouri Compromise. For the first time since Marbury, the Supreme Court exercised the power of judicial review of acts of Congress that Marshall had so emphatically claimed a half-century earlier. What Taney now declared “void,” though, was not an obscure provision in an “ordinary act,” but the keystone to a carefully wrought structure that for three decades had kept the Union from exploding. Also void, by implication, was the Compromise of 1850 and any future attempt by Congress to “interfere” with slave owners’ rights. “The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate.” The only power over slavery that the federal government could “constitutionally exercise”—indeed, it was its “duty”—was “that of protecting the rights of the owner.”
The chief justice’s opinion, with its distorted reading of the Constitution as a charter for slave owners, its illogic, bigotry, and partisanship, was not the Supreme Court’s only word in the case. Each of the other six justices in the majority issued separate concurrences, including Nelson, who published his original draft opinion, while Justices McLean and Curtis wrote separate dissents. Curtis’s opinion was an overwhelming rebuttal of Taney’s evidence and reasoning, and he warned that the chief justice had abandoned the law for politics and assumed an authority that rightfully belonged to the political branches.
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Page 6