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…

ABA’s 1st Novel for Young Readers

“Leapholes is a terrific way to introduce young readers to the legal concept of precedents and case law.  The unique concept of ‘leapholes’ will appeal to anyone, young or old, who may enjoy experiencing important legal decisions through the eyes, minds and souls of the people who lived those historic events.”

--ForeWord Magazine 

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: Dred Scott files suit in Missouri state court and loses 1847: New trial granted 1850: Verdict for Scott in trial court 1852: Missouri Supreme Court reverses and holds that Scotts remain slaves 1853: Scotts file in circuit court 1854: Circuit court holds Scott remains a slave;Scott appeals to Supreme Court 1856: 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 modern- day 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”?