by Martin Magnusson, Editor-at-Large
This month marks the 150th anniversary of the Supreme Court's infamous Dred Scott v. Sanford case, in which an African American slave sued for his freedom. Dred Scott's argument was that because he had been brought into free territories, he could not be returned to the bonds of slavery. Over the course of eleven years, his case was litigated several times over and eventually wound its way into the United States Supreme Court.
On March 6, 1857, Chief Justice Roger Taney issued what is widely regarded as the worst Supreme Court opinion ever. He noted that the question before the Court was whether African Americans are citizens of the
[African Americans] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.
The response to this opinion was immediate. Rather than settle the issue of slavery, it simply inflamed public opinion and divided the country further. Frederick Douglass assailed Chief Justice Taney's opinion, noting that the rights of African Americans derive not from any judicial pronouncement, but from natural law:
We are now told, in tones of lofty exultation, that the day is lost all lost and that we might as well give up the struggle. The highest authority has spoken. The voice of the Supreme Court has gone out over the troubled waves of the National Conscience, saying peace, be still . . . The Supreme Court of the
is not the only power in this world. It is very great, but the Supreme Court of the Almighty is greater. United States
This understanding of Dred Scott has now become almost universal. During his recent confirmation hearings, Chief Justice John Roberts was asked about the Dred Scott decision. He characterized it as a deplorable act of judicial fiat, claiming that it is
[P]erhaps the most egregious example of judicial activism in our history . . . in which the court went far beyond what was necessary to decide the case. And really I think historians would say that the Supreme Court tried to put itself in the position of resolving the dispute about the extension of slavery and resolving it in a particular way that it thought was best for the nation. And we saw what disastrous consequences flowed from that.
Chief Justice Roberts seems to define judicial activism as the Court's officious resolution of an ongoing national debate. It is certainly easy to decry the Dred Scott decision, which is uniformly reviled, as judicial activism. If the Court had concluded that freed slaves were entitled to full national citizenship, though, would it be as easy to characterize that conclusion as judicial activism? In a recent episode of C-SPAN's America and the Courts, Professor Mark Graber expressed his sentiment on that issue, noting that “judicial activism is when the court makes rulings that I do not like . . . I think we would all be better off if we skipped the words the 'judicial activism' from our vocabulary.”
The Dred Scott decision is remembered as dividing the nation, precipitating the Civil War and ultimately being overturned by the Thirteenth and Fourteenth Amendments. 150 years later, one might ask what the legacy of the Dred Scott decision is. Perhaps its legacy is seen most starkly in the war on terror. In a recent SSRN paper, Professors Jack Balkin and Sanford Levinson suggests that Chief Justice Taney's analysis of who is a entitled to the rights of citizenship is eerily evocative of ongoing debates over who is entitled to constitutional protections:
We get closer to understanding Taney’s logic when we think about the obligations we owe to suspected enemies of the state, and, in particular, how we should conduct what the Bush Administration terms the “global war on terror.” Surely the most dramatic example involves the Administration’s assertions of authority in a famous Office of Legal Counsel . . . memo to engage in torture—or “cruel, inhuman, and degrading” methods of interrogation—on those persons the President deems, often by fiat, potential enemies of the country. Torture, almost by definition, requires treating another person as if he or she has no rights that the interrogator is “bound to respect.”