Dred Scott! 150 Years Later
ABA Criminal Justice
Section
The Honorable Theodore
McKee, Circuit Judge
Utah Attorney General,
Mark Shurtleff
Former NAACP President
Margaret Bush Wilson
- And-
James Grippando
(Moderator)
Was Rosa Parks a real Person?

Her arrest in 1955
started a bus boycott
in Montgomery,
Alabama led by Dr.
Martin Luther King,
Jr.;
 The battle eventually
ended up in the U.S.
Supreme Court.
“Can We Go There?”

To Montgomery Alabama?

To the U.S. Supreme Court in Washington D.C.?
“No, I want to Go to 1955.”
Why not? What if loopholes were…
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The Missouri Compromise

1803: U.S. purchases
Louisiana Territory from
France
 1820: Compromise
allows slavery in
Missouri, forbids slavery
in territory north of 36
degrees, 30 minutes,
and admits Maine as
free state
 1821: Missouri admitted
as slave state
Dred Scott v. Sandford: Facts

1833: Dred Scott sold to Dr.
John Emerson in Missouri

1833-36: Emerson and Scott
reside in Illinois, a free state

1836-37: Emerson and Scott
reside in a free portion of the
Louisiana Territory
(Wisconsin)

1843: Scott’s owner dies
Scott v. Sandford: case history







1846:
1847:
1850:
1852:
1853:
1854:
1856:
Dred Scott files suit in Missouri state court and loses
New trial granted
Verdict for Scott in trial court
Missouri Supreme Court reverses and holds that Scotts remain slaves
Scotts file in circuit court
Circuit court holds Scott remains a slave;Scott appeals to Supreme Court
Supreme Court arguments (twice)
The Taney Court in 1857





Chief Justice Roger
Taney once owned
slaves
5 southern justices: all
Democrats
McClean (OH) (Senior
justice): Republican
Nelson (NY) & Grier
(PA): Democrats
Curtis (MA): Whig
Dred Scott Holding (???)

Jurisdiction: No Diversity Jurisdiction based
on citizenship because descendants of slaves
cannot be citizens

Alternative Jurisdictional Holding: Jurisdiction
also lacking because Scott was a slave

Blurring of Jurisdiction/Merits: Scott was a
slave because (the merits) Congress has no
power to outlaw slavery in the territories
(Missouri Compromise void)
Place in History



“There are three U.S. Supreme Court
decisions that define the boundary between
law and politics so sharply and at the same
time make such an indelible impact upon our
public life that they can be said to have
changed the course of our history.”
Is Scott v. Sanford in the big three?
What should every lawyer/person/school
child know about Dred Scott?
Race and the Republic

Taney: At the founding of the republic, public
opinion held that “[negroes] were regarded as
beings of an inferior race…[and] had no rights
which the white man was bound to respect.”
 Taney’s personal views in 1857 aside, was he
right as to the views of the Founding Fathers?
 Judge Wisdom in 1968: it was Brown v. Board
of Education that finally “erased Dred Scott,”
for only then were negroes “no longer ‘beings
of an inferior race’—the Dred Scott article of
faith.” True?
Constitutional Construction

Chief Justice Taney (most oft-quoted language from Dred Scott): “as
long as [the Consitution] continues to exist in its present form, it
speaks not only in the same words, but with the same meaning and
intent with which it spoke when it came from the hands of its framers,
and was voted on and adopted by the people of the United States.
Any other rule of construction would abrogate the judicial character
of this court, and make it the mere reflex of the popular opinion or
passion of the day.”

John Marshall in McCulloch: "We must never forget that this is a
constitution we are expounding . . . intended to endure for ages to
come, and, consequently, to be adapted to the various crises of
human affairs."

Justice Brennan: "The ultimate question must be, what do the words
of the text mean in our time?"

Where are we today?
Judicial Activism



Chief Justice Taney: “It is the daily practice of this court,
and of all appellate courts where they reverse the
judgment of an inferior court for error, to correct by its
opinions whatever errors may appear on the record
material to the case; and they have always held it to be
their duty to do so where the silence of the court might
lead to misconstruction or further controversy, and the
point has been relied on be either side, and argued
before the court.”
Justice Curtis: “[A] great question of constitutional law,
deeply affecting the peace and welfare of the country, is
not ... a fit subject to be thus reached. . . . I do not hold
any opinion of this court . . . binding, when expressed on
a question not legitimately before it.”
Who’s Right? Then? Now?
Judicial Independence





Justice Cantor cited numerous breaches of
confidence to the press during deliberations
Justice McClean vying for Republican
presidential nomination
Two justices tipping president-elect Buchanon
as to the court’s ruling before his inauguration
Did we reach the high-water mark of politicking
in the court with Dred Scott?
How does politicking manifest itself in modernday jurisprudence?
Judicial Supremacy


Not yet established in
mid-nineteenth century
(Lincoln: decision binds
only the parties to suit)
With all the politicking
and breaches of
confidence, would a
decision like Dred Scott
be entitled to status as
the “law of the land”
under current views of
judicial supremacy?
Judicial Temperament


Vitriolic exchanges in
letters between Taney
and Curtis led to Curtis’
resignation from the
court
Where is the line
between voicing
disagreement with a
fellow jurist and
breeding public
disrespect for the judicial
system?

“It would seem from your
letter to me that you suppose
you are entitled to . . . it as a
right, being one of the
members of the tribunal. This
would undoubtedly be the
case if you wished it to aid
you in the discharge of your
official duties. But I
understood you as not
desiring or intending it for that
purpose.”
- Chief Justice Taney to
Justice Curtis, denying his
request for a copy of the
written opinion before official
publication in Howard
Reports
Judicial Opinion v. Political Act
The Cleveland Herald: Dred Scott “is not
a judicial opinion; it is a political act.”
 Was Dred Scott more political act than
judicial opinion?
 What, in modern day terms, pushes a
judicial opinion into the realm of “political
act.”

Judicial Precedent

Perhaps the closest the Supreme Court has
come to expressly overruling Dred Scott was
in Downes v. Bidwell (1901) (Brown, J.): the
Civil war “produced such changes in judicial,
as well as public sentiment, as to seriously
impair the authority of that case.”
 Are changes in judicial and public sentiment
enough to “seriously impair” a precedent
without formally overruling it?
 Does it take a civil war to create the level of
change in “judicial and public sentiment” that
would justify disregard of a precedent?
Dred Scott Impact

Republican Party surged
with anti-slavery support

Civil War loomed

Which is more true:
- “Dred Scott was a major
cause of the Civil War,”
or
- “The civil war led to the
demise of constitutional
doctrines embraced by
Dred Scott majority”?