Dred Scott — A Century After

The Dred Scott case of 1857 is the most famous — or notorious — in all of our judicial history,” says Fred Rodell, professor of law at Yale University. Mr. Rodell’s latest book, Nine Men, is a political history of the U.S. Supreme Court.

A RESPONSIBLE if somewhat sectionally slanted journal was commenting on a controversial decision of the Supreme Court of the United States. “The most sacred and binding compacts of former years,” it growled, “were annulled to make way for it; and the judicial department of the government was violently hauled from its sacred retreat, into the political arena, to give a gratuitous coupde-grâce to the old opinions and the apparent sanction of law to the new dogma.” And in a later issue: “Whatever the . . . judges of the Supreme Court may seek to maintain, they cannot upset the universal logic of the law, nor extinguish the fundamental principles of our political system.”

Plus ça change, plus c’est la même chose. This was not a Southern newspaper or magazine protesting the anti-school-segregation decision of 1954. It was New England’s own Atlantic Monthly, protesting early in 1858 the Dred Scott decision.

The Dred Scott case of 1857 is the most famous — or notorious — in all of our judicial history. It is the only one that every schoolboy knows by name, though rarely by its full name, which was Dred Scott v. Sandford. It is the only one that helped bring on a major war. It is one of only three decisions in 168 years of Supreme Court annals that were eventually reversed, not by the Court itself, not even, legally speaking, by war, but by amendment of the Constitution. (The other two were Chisholm v. Georgia, a minor insult to state sovereignty reversed by Amendment XI, and the Pollock income-tax case of 1895 reversed by Amendment XVI.) And when the anti-segregation ruling of three years ago was called by several commentators “a second Dred Scott case,” they did not mean to lump together, ideologically, the Court’s greatest anti-Negro and pro-Negro decisions; the metaphor merely put the new case beside the old at the pinnacle of political importance.

Yet, for all the familiarity of its name and of the bare fact that it bestowed judicial blessing on the institution of slavery, the full story of the Dred Scott case is not widely known, even among lawyers. Indeed, the off-stage scenario did not come to light until well into the twentieth century, when the papers of President Buchanan and, later, of Justice McLean were published. Had that story been contemporarily known, the newborn Atlantic Monthly might have used still harsher language than it did when it spoke of “a Court whose members are selected, not for uprightness of character or breadth of mind, but by the inverse test of their capacity for cringing subservience to party.”

For, when else has the Supreme Court been chivvied into making a major and explosive political pronunciamento out of a case it could have handled, and originally planned to handle, on a mild and minor ground — chivvied by the declared intent of one Justice, who was openly ambitious for the presidency, to turn his dissent into a stump speech in behalf of his future candidacy? When else has a President-elect (or a President) used his influence to change the vote of a Supreme Court Justice? When else has a President, in his inaugural address, blandly adjured the nation to accept in good part an anticipated Supreme Court decision, “whatever this may be” —as though lie were not fully aware of how that decision would go, of how each Justice had voted, and that the ruling would be handed down in exactly two days?

And when else have the echoes of a Supreme Court decision reverberated down the decades and come out, a century later, precisely in reverse? The Negro question, with its oratorical overtones of states’ rights against national power, is still very much with us, though on a slightly more civilized level. But today it is the North that lauds the Court, the South that damns. Today it is the South that talks of impeachment and nullification; after Dred Scott — until Lincoln went to the White House — these nostrums were bruited about in the North. If for no other reason than its immediacy as political paradox, that old case which was cooked up in the name of an illiterate Negro slave deserves centennial recollection.

THE flavor of the case and of the times is perhaps best recaptured by a verbatim transcription of part of the “agreed statement of facts" which opposing counsel submitted to the Court. The problem of Negro slavery — or, more accurately, of Southern planters against Northern merchants and traders — had been simmering at a slow boil throughout the first half of the century. By the mid-1850s the South was in the saddle in Washington. A hell-for-leather Democratic Congress had passed the Kansas-Nebraska Act, repealing the Missouri Compromise of 1820 and letting Kansas, Nebraska, and any other future states north of the old Compromise line come into the Union as slave states if they chose. Weak Democratic President Pierce, although a New Englander, had halfheartedly supported the act. On the Supreme Court, Chief Justice Taney could count on four Southern colleagues to make a majority, and one of his Northern brethren, Justice Grier, was not unsympathetic toward the South. Into this atmosphere came for decision the Dred Scott case, started in a federal district court in Missouri while the Kansas-Nebraska Act was winging its way through Congress, but dealing with events of twenty years before:

“In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff . . . to the military post at Fort Snelling, situate on the west bank of the Mississippi River, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north [this was the Missouri Compromise line] and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last mentioned date until the year 1838.

“In the year 1835, Harriet . . . was the negro slave of Major Taliaferro, who . . . sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson hereinbefore named. . . .

“In the year 1836, the plaintiff and said Harriet at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie . . . are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. . . .

“In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided.”

But it took eight years before said plaintiff suddenly started suit in the courts of Missouri to win the status of freeman for himself (and his family) on the ground that, by having once lived in a free state, Illinois, and a free territory, now Minnesota, he had automatically and permanently severed the bonds of slavery. And it took eight more years, after he lost in the Missouri courts, before the federal Dred Scott case got under way.

Meanwhile, “master” Emerson had died and his widow had married an abolitionist congressman from Massachusetts, named Chaffee. Twitted on all sides for his wife’s ownership of slaves, Chaffee soon fixed up a technical transfer of the Dred Scott family to his wife’s New York brother, John Sandford, who thus became the Dred Scott case defendant. That both Chaffee and Sandford encouraged, if they did not actually assist, Scott’s suit — after the aging Negro had been a bit lackadaisical about seeking his own freedom — and that Scott was promised that freedom beforehand (and later got it) no matter which way the case should be decided, make clear that this was one of those contrived “test cases” lawyers delight in.

Dred Scott v. Sandford reached the high tribunal, on appeal, early in 1856. The Court was then made up, along with Chief Justice Taney from Maryland, of four other Southern Justices — Campbell of Alabama, Catron of Tennessee, Daniel of Virginia, and Wayne of Georgia — and four Justices representing (and the word is accurate) the North — Curtis of Massachusetts, Grier of Pennsylvania, McLean of Ohio, and Nelson of New York. These nine, after they heard the case, decided in conference to dispose of it on a narrow and unexplosive ground. They would simply say that whether Dred Scott, once back in Missouri from his sojourn on free soil, was a slave or a freeman was the business of the Missouri courts, not of the federal courts; case dismissed. Had this plan of procedure been carried out, Northerners Grier and Nelson would have gone along to make the vote seven to two — Nelson was even prepared to write the Court’s opinion — and the Dred Scott case would have dropped into oblivion. But at this point personal and partisan politics began to seep, then to flood, into the case, until there was no stopping a judicial deluge on the whole seething subject of Negro slavery.

It was Justice McLean of Ohio who started it. His eye firmly focused on the White House come 1861, or even 1857, he bluntly informed his colleagues that if they went through with their plan of shucking the case off on a matter of minor moment, he would deliver a ringing dissent, not so much against the decision itself as against slavery, blasting the Court for supporting the evil practice by indirection. Then Georgia’s Justice Wayne counterthreatened a treatise in reply, which would defend slavery while chiding his colleagues for sliding away from the real issue; and Justice Curtis of Massachusetts got ready to answer Wayne and back McLean with an abolitionist tract of his own. Faced with this forensic free-for-all, the Court voted to put off decision until after extended reargument next term.

Postponement meant that a presidential election would intervene before the Dred Scott finale. And this accidental fact opened the case still wider to political influences and pressures. For Democratic President-elect James Buchanan, though a Pennsylvanian, was more than mildly sympathetic toward the Southern view and angrily impatient with the troublemaking abolitionists. Thus, with Congress safe for slavery, as for some time past, and a new President coming in whose sentiments were at least acceptable to the South, the Southern majority of the Supreme Court were emboldened to put the third branch of the federal government in the same camp — and in a substantial way. The result was the full-blown and inflammatory decision, holding that Negroes, per se, were not U.S. citizens (and so could not sue in U.S. courts) and that the Missouri Compromise (on which Scott had based his claim to freedom after living above the line) had been unconstitutional from the start, since no Congress had power to ban slavery on any Western soil, before or after statehood.

As they prepared to announce to the nation that slavery or no slavery was strictly a state (or territorial) question, constitutionally out of the reach of congressional control, the five Southern Justices were well aware that they were about to spike the biggest gun of the fledgling and fast-growing Republican Party. But the Taney quintet were also aware that if such a ukase should come from a Court split five to four on solidly sectional lines, any dunce would see the nakedly political nature of a supposedly nonpartisan proclamation of law. So in February, 1857, just before Buchanan’s inauguration, the behind-the-scenes finagling began.

First, Justice Catron of Tennessee sent off a note to Buchanan, informing him that the Court was ready to hand down its Dred Scott decision, revealing that the ruling would be based on broad grounds involving the constitutionality of the Missouri Compromise (Catron did not have to specify which way the case would go), and urging the President-elect to use his influence with fellow Pennsylvanian Grier toward a strong decision, to “settle the agitation.” Buchanan immediately complied. Whereupon Grier wrote back, telling Buchanan “in confidence” precisely how and by whom the case had been decided and assuring him that the decision would not be announced until March 6, two days after the inauguration.

Grier did not actually promise in writing to switch his own vote and so create a more impressive majority. But he made it safe for Buchanan, in his inaugural, to exhort his countrymen, North and South — with an air of innocent impartiality — to accept with good grace whatever decision came down. And when it did come down, the vote was six to two against the Missouri Compromise, with Justice Grier added to the Southern five. (Justice Nelson alone stuck to his guns, refused to consider the Compromise, and filed the brush-off opinion which would have been the Court’s had the case been disposed of the term before.)

Except for Nelson’s, and for Grier’s two brief paragraphs, all the opinions were long political tracts, for or against slavery. Taken together, they filled 234 small-print pages in the Court’s official reports. The opinion of the Court was, of course, written by Chief Justice Taney.

For fervor of feeling, for sectional chauvinism, not even the McLean dissent that had sparked the fireworks could match Fancy’s pseudo-judicial diatribe. With obvious relish, he castigated the holier-than-thou preachments of the North, “where the labor of the negro race was found to be unsuited to the climate and unprofitable to the master.” He spewed special scorn at coastal New England for professing a pious concern for the Negro while its bankers and shipowners prospered from “the slave trade, procuring cargoes on the coast of Africa and transporting them for sale” in the South. On a legal level, not satisfied to label the old Missouri Compromise unconstitutional and let it go at that, he insisted on adding gratuitously that no Negro, slave or free, could be a U.S. citizen, so that Dred Scott had no standing to sue in a federal court. (By proper judicial procedure, this last holding actually made the Missouri Compromise argument gratuitous; if Scott had no right to sue, the case should have been dismissed without further ado, on that ground.)

As soon as news of the decision was announced, the nation was rocked from top to bottom. One of the protestants, though his first reaction was milder than most, was Abraham Lincoln. Quoting Jefferson, he remarked that “our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.” Lincoln also expressed his belief, as a lawyer, that unpopular Supreme Court decisions could — and should — be reversed by a majority vote of Congress. He could not then know that it would take a civil war to reverse Dred Scott v. Sandford.

Plus ça change, plus e’est la même chose. Today again, though from the opposite point of the compass, come indignant denunciations of the Supreme Court and its highhanded declarations of law. Today again come plans and proposals — no less than seventy such bills were introduced at the 1956 session of Congress — to clip the Court’s wings. Today again, the old cry of “states’ rights” is in the air. Today again, it is our Negro compatriots who are the innocent cause of it all.

And yet, it is not the same thing today. The Negro is no longer a piece of property but a human being and a citizen, albeit too often a second-class citizen. The Supreme Court that called for an end to public-school segregation in 1954 did not do so by a sectionally split decision but unanimously, though its membership included Justices Black of Alabama, Reed of Kentucky, and Clark of Texas. No one in his right mind remotely supposes that President Eisenhower had to urge any of these gentlemen, or could have persuaded any, to vote as they did. And for all the fuss and the fury, the decision will result in no civil war. The nation has grown up a little since 1857.

But the nation has not grown up enough to distinguish clearly and consider separately the two basic and basically disparate issues that underlay the post-decision dispute in the last century and that underlie the post-decision dispute today. One is the status of the Negro — especially, though not exclusively, in the South. The other is the political power to be accorded to the nine men appointed for life who happen to make up the Supreme Court of the United States.

On the first issue, by every canon of democracy and humanity, the North was right in 1857 and is now right again. This is not to say there is not still, as Taney charged the last time, an element of hypocrisy in the Northern view — what with segregation in housing, discrimination in jobs, and a wealth of available private schools above the Mason-Dixon line. Nor is it to say that the Southern moderates do not have some sense on their side when they ask a little time to reorganize a sizable chunk of their social order. But in 1957, with the eyes of the nation turned anxiously outward toward a world peopled mainly by men whose skins are not white, it could be suicidal as well as inherently indecent to treat our own Negroes as less than complete equals.

On the second big issue — the power of the Supreme Court — the answer is not so clear. What is clear is only that the issue ought to be considered quite apart from the heated partisanship engendered, in 1857 and in 1954 (and also before and between), by a controversial decision. There is something to be said for the notion that the nine Justices hold, or at least wield, too much arbitrary political power, and it has been said in the past by such solid citizens as Jefferson, Lincoln, both Roosevelts, and Justices Holmes and Stone (in dissent). But to rest such a conclusion or its opposite — leave the Court alone — on the boiledup emotions of the moment is to invite trouble in the long perspective of time.

This is the least we might learn from the Dred Scott case, looking backward over one hundred years. Southerners of today may chortle at the old Atlantic Monthly’s anti-Supreme Court strictures, but they will find cold Southern comfort in the paeans of praise that emanated from their own political ancestors. Northerners may smile that the South once waved the banner of Court supremacy, but the words of Lincoln ought to give them pause. Let both sides ponder their present motives in the light of what they would have felt and said — not about the status of Negroes but about the Supreme Court—had they been alive when the nine Justices denied Dred Scott his simple plea a century ago.