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Awful Eight #8: “Speeding” the Court



In the summer of 1787 legislators from every state gathered in Philadelphia to debate and draft what became the Constitution of the United States. Their hopes were buoyed by the success two years earlier of the Mt Vernon Convention, when Virginia and Maryland drafted the first inter-state compact in American history, an agreement regarding commerce on the Potomac.

Over the course of that steaming summer optimism gave way to frustration and then cynicism as the Framers faced one seemingly intractable issue after another. None was more contentious than slavery. Since part of the legislative branch would be based on proportional representation, southern states wanted the slave population included. What they did not want, of course, were any rights or privileges for those slaves. In an infamous compromise, slaves (actually all other persons “not free” and “not Indian”) were to be counted, for census purposes, as three-fifths of a person.

The net result led to over-representation for the South. In 1812, for example, southern states sent 76 representatives to Congress instead of the 59 they would have had. Tensions reached the snapping point in 1819 when Missouri requested statehood as a slave state. This would upset the tenuous balance between slave and free states which at that time was eleven apiece. Even more contentious, it would set the precedence of Congressional acquiescence on slavery.

The explosive situation was defused, at least temporarily, by the Missouri Compromise of 1820. In exchange for Missouri entering as a slave state, territory originally belonging to Massachusetts would enter the Union as Maine thus preserving the slave/free balance. Additionally, all territories above the 36deg 30′ parallel would have to enter the union as free states.

The Missouri Compromise held the Union together for another thirty years until it was repealed by the Kansas-Nebraska Act of 1854. By this time factions in Congress had become so hardened that a legislative solution to slavery was, for all practical purposes, impossible. Congress and the nation looked to the Supreme Court for the answer.

Which leads us to Dred Scott and the winter of 1857.

Dred Scott was born the property of the Peter Blow family around 1799, in Southampton County, VA. The Blows moved to Alabama where they unsuccessfully tried farming, and eventually settled in St Louis, where Scott was sold to an Army doctor, John Emerson.

Emerson moved to Illinois, a free state, where he lived for two and a half years, and then to Wisconsin, also a free state. He took Dred Scott with him.

When the Army ordered Emerson south to St Louis and then Louisiana he left Scott behind in Wisconsin. While in a free state Scott had legal standing to pursue his freedom, but for unknown reasons never did. Perhaps he was unaware of his rights there, or perhaps he was content with his master.

Whatever the reason, when Emerson sent for him in Louisiana, Scott and his wife traveled over a thousand miles- unaccompanied- to rejoin his master. Emerson died a few years later and his widow leased out the Scotts (he now had a family of four) to her brother, Colonel John Sanford.

When Scott offered to purchase his freedom for $300 she refused and in 1847 Scott sought to win his freedom in the courts. The case was expected to be straightforward, as the state of Missouri had ruled in ten other cases where slaves had been taken to free territories.

The Missouri circuit court initially ruled in his favor but was overturned on a technicality: Scott’s legal team had failed to produce a witness establishing he was the property of Emerson’ widow. A retrial took place in 1850 and with the appropriate witness secured the circuit court followed Missouri precedence and granted Scott his freedom.

During this time Scott still worked as a hired slave and his rent was held in escrow. Unwilling to lose four slaves and the rent collected, Eliza Emerson transferred ownership to Sanford (she had moved to Massachusetts) and appealed to the Supreme Court of Missouri.

The state Supreme Court overturned 28 years of precedent under the Missouri Compromise and held that the Scotts were still slaves and should have sued for freedom while in a free state. As a slave in a slave-holding state, they reasoned, Scott did not have legal standing to file suit.

Since Sanford had moved to New York (a free state), Scott took his case to federal court. The federal court, directing the jury to try the case under Missouri law, found in favor of Sanford and Scott took his case to the US Supreme Court where it was finally heard in the winter of 1857, ten long years after Scott had first filed suit.

But there were machinations afoot a few months before that momentous decision, and they originated in the White House.

Candidate James Buchanan had campaigned for popular sovereignty, i.e. letting new states themselves decide if they were to be free or slave-holding, but he was conveniently silent on when a territory would decide. Northern Democrats wanted the decision made at the time a territory applied for statehood. Southern Democrats wanted the territorial government to vote the issue as soon as practicable. Buchanan threaded the political needle and won the enough support from both factions to secure the nomination and, running against a nascent Republican party, win the presidency.

Privately, Buchanan wanted the issue settled in favor of the southern viewpoint. Even though he was from the North (Pennsylvania), as a Democrat he viewed Republicans and abolitionists as dangerous, fearing they could foment a slave uprising or even threaten to split the Union itself. Politically, a pro-slavery decision by the Court could strike a mortal blow against the Republicans, whose primary objective had been stopping its spread. “It is a judicial question,” he said in his inaugural address “which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled.” Whatever the Supreme Court’s decision he declared, “in common with all good citizens, I shall cheerfully submit….”

Despite Buchanan’s apparent open-minded rhetoric, by Inauguration Day (March 6, 1857) the outcome had already been fixed, as we shall see momentarily.

The Case- Dred Scott v Sandford, 1857

Chief Justice Roger B Taney, a former slave holder, wrote the majority opinion (7-2). Initially he favored a narrow ruling based on Missouri law: a slave’s status was not affected by a temporary change in residence. Therefore, Scott would remain a slave. However, as a result of Buchanan’s cajoling Taney became convinced he needed to strike a decisive blow for slavery and the South.

The Court faced three questions.

First, did the Court have jurisdiction to take the case? The Constitution limits the circumstances under which a case may be heard in federal court. One of these is the Diversity Clause, which grants the federal courts jurisdiction if the case involves a dispute “between Citizens of different states.” Scott was born in America, and thus should have been a citizen, but he was a descendant of an imported African slave.

So Scott’s American birthplace was of no matter to the Court. Taney wrote that at the time the Constitution was adopted Negroes were considered “a subordinate and inferior class of beings, who had been subjugated by the dominant race.” Therefore, they had “no rights or privileges” except what the government or their masters would grant them. They were not members of the “political community.” Of course, if that was the end of the matter then Scott moving to a free state would mean he was now free since the government of that state had granted freedom to all. Taney forfended that argument by insisting that just because a person “has all the rights and privileges of a citizen of a State” he is not necessarily “a citizen of the United States.”

Naturalization is a federal responsibility, so a state could not grant naturalization status, Taney reasoned. Therefore free states lacked the power to confer freedom or “the rank of citizenship.” Dred Scott did not have standing to pursue the case.

But Taney did not stop there. With scant supporting evidence, Taney decreed that the rights of citizenship were reserved only for those so described at the adoption of the Constitution “and for their posterity and no one else.” So who were citizens? Certainly not “that unfortunate race” who were “an inferior order and altogether unfit to associate with the white race.” They were “so far inferior, that they had no rights which the white man was bound to respect.”

Taney went even further- he wanted every Negro in chains: “The Negro might justly and lawfully be reduced to slavery for his own benefit.”

So the Court declared Scott was not a citizen because of his race and no Negro could ever be a citizen. And the Court’s opinion, rather than serving as a guardian of liberty, screeched like the minutes of a KKK meeting.

In one titanic miscarriage of justice the Court not only declared slaves should remain slaves, but freed blacks should be enslaved. It eliminated the Missouri Compromise, which had stood for 40 years, opening the possibility of slave ownership beyond the southern states. This was only the second time the Court had declared an Act of Congress unconstitutional- the first was the landmark Marbury v Madison (1803). It was an opinion not only void of justice, but of wisdom and humanity.


Like most of the decisions we’ll examine, Dred Scott started out as something narrow and ended up overreaching. And, like other judicial mis-steps, part of the reason for this is the Court bowed to political and popular pressures.

Rigging the outcome was not a simple task, however. The case was first argued in February, 1856 and then re-argued in December. At the beginning of 1857 Justice James Wayne, a slave-holding Georgian, privately insisted the Court take up the larger issue of the Missouri Compromise. The other Justices were unconvinced. Taney especially was in favor of a narrower ruling and Justice Samuel Webster, a centrist New Yorker, had already penned such an opinion. Wayne argued the public expected an answer on the Missouri Compromise, especially since it had been argued before the Court twice previously.

After cajoling by Wayne and Buchanan, Taney made up his mind about a month before Buchanan’s inauguration to strike down the Missouri Compromise. Upon learning this Wayne confided to a Senator that he had “gained a triumph for the southern section” and that the Court “could put to an end all further agitation on the subject of slavery in the territories.”

Wayne was joined by Justice John Catron, a slave-holding Virginian and longtime friend of Buchanan. (A presidential secretary referred to Catron as Buchanan’s “wire puller.”) Both Catron and Buchanan realized a narrow Court majority along sectional lines would not carry the import of a greater majority. The support of a northern Justice was critical. In a letter of incredible bluntness, Catron wrote to Buchanan that he should “speed” a waffling Justice, fellow Pennsylvanian Robert Grier.

Initially Grier was in favor of a narrow ruling along the lines of Webster’s opinion. On February 23 Buchanan wrote Grier a strongly worded plea for ruling the Missouri Compromise unconstitutional. Grier showed it to his “friends” Taney and Wayne. (By that time, of course, Wayne had won Taney over to his side.) Grier quickly followed suit.

Catron wrote Buchanan that the decision would come March 6, two days after Inauguration Day. Catron even went so far as a draft a couple of flowery paragraphs for Buchanan’s speech, lauding the Court’s “high and independent character.” Perhaps even the morally-challenged Buchanan saw the hypocrisy in that request. He had corresponded with three of the Justices, had been on the receiving end of supposedly confidential information regarding the Court’s deliberations and had dropped all pretense of independence when he lobbied Grier. For whatever reason, he did not include the paragraphs in his speech.

In Dred Scott the baser elements of jurisprudence – political ambition, self-interest, legislating from the bench, and above all, weak moral constitution- combined to produce one of the most heinous decisions ever by a court at any level.

In most surveys Dred Scott ranks at the top of the list for all-time worst. I put it lower here not because of the terrible miscarriage of justice, but because the matter was settled less than a decade later by the Civil War and 13th – 15th Amendments. Thus, Dred Scott’s influence was mercifully limited, and it bears little effect on issues we face today.

Its legacy however, lives on, as we shall see in subsequent cases. In an opinion fraught with error, perhaps it is fitting that the clerk of the Court misspelled Sanford’s name “Sandford”, the name by which the case is known today.


The decision was instantly controversial. Southern newspapers lauded it, in many instances exulting that the slavery issue had been finally settled. More insightful articles, however, warned the decision would “precipitate rather than retard” the conflict between slavery and Abolitionism.

Northern newspapers focused their scorn upon Taney in particular, wondering how a deeply pro-slavery Southerner could decide the issue for the entire country. Several state legislatures viewed the decision as an attack on their sovereignty and passed laws preventing the kidnapping and returning of slaves.

The eighty-year-old Taney was already in frail physical and mental health (his wife and youngest daughter died from yellow fever in 1855), and the criticism exacerbated his decline.

By 1858, a year after the decision, even some of his friends condemned him for capitulating to political expediency. His most prominent critic was Abraham Lincoln, whom Taney would later denounce as a military despot. It must have been excruciating for Taney to administer the oath of office at Lincoln’s inauguration in 1861.

Taney believed the Union was indivisible and so remained on the Court even after the South seceded. This time, holding to his principals brought scorn from the South. He died in October 1864, in the waning months of the Civil War, disdained by both the North and South. Lincoln did not release any public statement but he and three of his cabinet members attended Taney’s funeral.

Interestingly, Taney is generally regarded as a competent Chief Justice. He was the fifth to hold that title, and considered the most capable of his predecessors except John Marshall. Of course, Dred Scott remains an indelible stain on any attempt to rehabilitate his reputation. His own view on slavery is a bit more complex; he freed his own slaves, but ardently supported the property rights of slave owners. A bronze statue of him stands on the grounds of the Maryland State House.

Justice Benjamin Curtis, who wrote a lengthy and detailed dissent, resigned after Taney re-wrote his opinion to counter Curtis’ dissent. He remains the only Justice to resign over a difference in principle.

The sons of Scott’s first owner (Peter Blow) paid for much of Scott’s legal fees. Their motivations remain unclear.

Eliza Emerson remarried to an abolitionist Congressman from Massachusetts named Calvin Chaffee. He was disparaged for his connection to the case even though it pre-dated his marriage. At Chaffee’s urging, Eliza sold Harriett and Dred Scott to the Blows for $750.

The Blows set them free. Dred Scott died nine months later.

Next up: You May Now Regulate Everything

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