Thursday, July 23, 2009

SCOTUS, Politics, and Dred Scott (And Hello Again)

Prof. Sandy Levinson takes Chief Justice Roberts to task over Dred Scott v. Sandford. Roberts attended a conference in West Virginia about a month ago where he was asked to discuss a Supreme Court case that seemed particularly important to him. Roberts remarked:
Well, I do think there's one that stands out, and it's a counterpoint. I mean, people talk about the monumental cases, and you assume they're talking about the good ones -- Marbury and Brown. I would say the third most significant case in the court's history was Dred Scott in the sense that while Marbury and Brown are good examples of what to do in very challenging situations and how to handle it, Dred Scott's an example where things went terribly wrong. And you need to look at that and try to figure out why.

And I think some of the reasons are pretty clear. You had, of course, the most divisive issue in our history, leading the country toward civil war, sectionalism overlayed on top of that, the political branches failing to address it in the case of the executive and failing and causing more harm than good in the case of the legislature.

And you had Roger Taney, whose reputation would be quite different if it weren't for this one case, looking at it and saying the other branches aren't working, this issue is threatening to destroy the country, and I'm going to solve it. I'm the only one who can. And he, more or less, took it upon himself to lead the court into a resolution of those issues that were dividing the country. And in a broad way, that really had no basis in a proper reading of the Constitution and in a decision that could have been resolved either way on much narrower grounds, which would have preserved the court above the fray. [...] You need to look at Dred Scott and think, well, this is a good example of how not to do it. And that can teach you just as much as the good examples.

I think what Taney did is he used a case that could have been resolved on quite narrow grounds -- and I'm not suggesting it would have resulted in a noble decision, you know, freeing the country from slavery. It might well have resulted in the same decision, but it wouldn't have had the dramatic political impact. Taney went quite beyond what was necessary. It could have been resolved on several different levels and either resulted in relief for Dred Scott or not. But instead, he resolved it on the broadest possible grounds. And as a result, I think, threw the court into the political realm quite self-consciously. [...] And as Taney did not, I think it's important to recognize there are going to be huge consequences if you do leap ahead and involve the court in politics.

Levinson pounced:
There are many things that can be said about Dred Scott; indeed, Jack Balkin and I published an article, Thirteen Ways of Looking at Dred Scott. And, of course, there is Mark Graber's magnificent book on Dred Scott and the Problem of Constitutional Evil. The Chief Justice would be well advised to spend some of his summer vacation reading Mark's book, so perhaps he would no so foolishly argue that Taney's opinion, egregious as it is in all sorts of moral dimensions, "really had no basis in a proper reading of the Constitution." What Roberts is doing is simply conveying the "judges on a rampage" view of Dred Scott, which allows us, among other things, to avoid coming to terms with the possibility that William Lloyd Garrison may have been right, that the Constitution really was a "Covenant with Death and an agreement with Hell" and that "honorable" judges had to live up to the deadly bargain (as Joseph Story, far more honored that Taney, did, with arguably lesser legal warrant, in the just-as-egregious case of Prigg v. Pennsylvania in 1842). [...] Nor were Taney and his colleagues on a rampage; they were accepting a gilt-edged invitation to try to resolve an issue that the legislature had been exposed as incapable of doing so.
If Prof. Levinson is correct (and I suspect he is), the implications are far-reaching and troubling. There is a tradition of what you might call American mythology that makes secular saints of the Founders and holy scripture of the Declaration of Independence and the Constitution. Of course, people should always strive for a better and more nuanced understanding of history, but nonetheless, it seems to me that there is some utility to American mythology. It inspires us, it gives us an ideal to reach for, and it keeps us from growing complacent with the imperfections of the present. And it is a useful corrective to our society's pervasive cynicism: after all, some of these people were truly incredible, and their lives and accomplishments merit admiration.

But Levinson is certainly right to note that there are limits to this mythology, and when it obscures proper understanding of our history, a dose of reality becomes necessary. Our admiration for the Founders and for our founding documents must never blind us to the darker moments of our history. (In particular, I can remember one day in my high school civics class when the teacher happily informed us that the U.S. Constitution was conceived by such forward-thinking individuals that it was entirely free of racism! The teacher reacted with an annoyed sigh when I raised my hand to mention the three-fifths Compromise.)

It is very difficult for Americans to except that there may be something fundamentally evil about our Constitution, and so the "judges on a rampage" theory of the repulsive Dred Scott decision can be very comforting. Instead of casting the Constitution in such a negative light, it tries to portray the question of Dred Scott's freedom as a very narrow one - one that a more restrained Court could have answered without making such sickening and unnecessarily broad declarations about who can be a citizen of the United States. I am familiar with this narrative because I myself once unsuccessfully tried to advance it. The following excerpt comes from my analysis of the political climate that led to Dred Scott:

The broader political developments of the 1820s and 1830s, including the development of abolitionist political movements and major sectional tensions over the expansion of slavery, undermined the old notion that a single national interest existed and could be promoted by politicians. When the construction and intent of the Constitution with regard to slavery came into question, the Court’s ability to simply answer constitutional questions and avoid political judgments was deeply compromised. The country was beginning to drift into North and South, and a paralyzed Congress feared exacerbating the tensions that poisoned political debate.

It was a time that called for extreme judicial restraint and increased focus on allowing the proper political bodies discuss the controversial question of slavery. Yet the developments of previous decades had moved the Court away from Marshall’s deference to legislative action [...]

This, I suppose, is accurate enough, but what follows (and what the Chief Justice was arguing) is a very difficult case to prove. Nonetheless, I continued:

Keith Whittington describes the volatile circumstances: “In the final years before the Civil War, Congress extended an invitation to the Supreme Court. Congress invited the Court to decide a constitutional question that it was unwilling to decide itself: whether the federal government had the power to prohibit slavery in the territories.”10 The issue had been disastrously destabilizing for national politics, and was even giving rise to a new Free-Soil party which threatened the established party system. In 1857, the Court, led by Chief Justice Roger Taney, saw just such an opportunity to address the question of slavery in the territories when it heard the case of Dred Scott, a slave who had been brought into free territory before returning to Missouri. Scott argued that by entering and temporarily living in free territory, he had secured his freedom.

The ruling was utterly calamitous. In his infamous opinion for the majority, Chief Justice Taney rejected Scott’s claims of citizenship on racial grounds, but more importantly for the question of slavery’s expansion, he denied the Congress’s right to ban slavery in the territories at all. This undermined the position of both the Free Soilers and advocates of popular sovereignty, since it took away the right of settlers in the territories to decide if they wanted to allow slavery. The Court, stepping far beyond the boundaries of the case, even overturned the Missouri Compromise, sending national politics into a tailspin. Alexander Bickel’s analysis of judicial review explains the Court’s need for prudence and illuminates why its broad declarations in Dred Scott only inflamed the very tensions it was meant to ease:

    When it strikes down legislative policy, the Court must act rigorously on principle, else it undermines the justification for its power. It must enunciate a goal, it must demonstrate that what the legislature did will not measure up, and it must proclaim its readiness to defend the goal – absolutely, if it is an absolute one. But it is not obligated to foresee all foreseeable relevant cases and to foreclose all compromise.11

[...] The Taney Court could not avoid the impression that it was entering a political debate, and in fact, it was only too eager to do just that.

My citation of Alexander Bickel is particularly problematic, for, as Levinson correctly notes, "To say that Taney should have exercised more Bickelian "prudence" is simply to say that he should have acted even more as a "politician," and it has nothing to do with the legal merits of Taney's arguments. After all, Bickel developed his theory of the "passive virtues" precisely in order to allow the Court, on patently political grounds, to avoid legal hot potatoes."

When I wrote this analysis, I was convinced of the convenient theory that Taney had simply gone beyond his proper role and created chaos where a more narrow ruling would have sufficed. But this misses the point: even if one charges that Taney was improperly attempting to settle a political question, it does not follow that his ruling was devoid of legal merit. The Constitution, prior to the 13th, 14th, and 15th Amendments, made it perfectly possible to do horrendous evil against African-Americans. That is a very uncomfortable thing for us to admit. And Taney's argument - based on a reading of fundamental property rights that protected citizens from giving up their slaves upon entering free territory - was, sadly, not a crazy opinion. Slaves were property. And property was protected.

I discovered, in a futile attempt to defend my own articulation of the "judges on rampage" theory, that it cannot withstand a more comprehensive look at the history of the period, and when the legal arguments of Taney are considered in the context of the era, the convenient, Constitution-exonerating approach of blaming the Court falls apart. It's good that we have respect and admiration for our founding documents. But our ultimate fidelity must be to the truth, or our ongoing struggle to form a more perfect Union is doomed.


10Whittington, Keith E. “The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions.” The Journal of Politics 63, no. 2 (May 2001): 365-391. <>.

11Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New Haven: Yale University Press, 1962.


I guess this means the end of my hiatus from blogging. Weirdly enough, traffic remained about the same even when I wasn't updating, but now I'm starting again, so those of you still checking this page will have something to read. Enjoy, and don't be afraid to comment. This operation runs more smoothly when communication goes both ways.


JDR said...

I think the most important point, at least looking at this as a statement from Roberts, is that IT WAS THOSE DAMNED ACTIVIST JUDGES.

Enlightened strict-constructivists like Roberts would thus never dictate such a horrible opinion, right? It's only those baby-killing liberals that would...

N. said...

To a certain extent, I think that's right. There's definitely an anti-"judicial activism" aspect to his comments, but I think the narrative he's trying to construct is more about preserving a certain image of the Constitution than it is about attacking the left. Even if you accept and apply Roberts' "umpire" metaphor, Dred Scott still presents huge problems, because the case forces you to make a statement about who gets to be an American citizen.

And that, I think, is why he's ultimately wrong: focusing on "restraint" causes us to avoid the biggest issue, which is that slavery was not some aberration from an otherwise-perfect ideal of freedom, but instead was central to the entire apparatus of early American government and society. Dred Scott not only brought that contradiction between freedom/slavery into stark relief - it suggested that our laws required us to take sides with the latter.