Justice  /  Comparison

How To Resist Bad Supreme Court Rulings

What Dred Scott teaches us about thwarting bad law.
Demonstrators protesting Trump's immigration policy toward Muslims outside the Supreme Court.
Manel Ngan/AFP/Getty Images

When the Supreme Court last week upheld the Trump administration’s travel ban, opponents expressed their horror through analogy: comparing the decision to Dred Scott v. Sandford, the infamous 1857 decision that held that people of African descent, because of their color, were categorically ineligible for U.S. citizenship. “Move over, Dred Scott,” read a June 26 headline at The Washington Post, where the legal director of the American Civil Liberties Union, David D. Cole, made the case that the travel-ban ruling, like the Dred Scott decision, is “likely to be judged by history as one of the court’s greatest failures.”

The comparison of Trump v. Hawaii to Dred Scott hinges on the argument that the two cases are similarly egregious, turning on specious ideas about racial difference: then against black people and now against Muslim people.

That’s true, and certainly a reason we should study Dred Scott in this moment. But which lessons we draw from the past matters. The Dred Scott decision was a bad one, and yet it also exposed the limitations of the court’s power — and how lawyers and activists curbed its influence. Chief Justice Roger B. Taney overreached when he aimed to seal the fate of black Americans, and the resistance to his ruling is instructive for those who are seeking to do the same in the face of Trump v. Hawaii.

No sooner had the Dred Scott decision been handed down than it was under attack from many sides. African American activists and members of the abolitionist movement immediately opposed what was a blow to those who had long claimed that former slaves were free people and also citizens. At stake was whether the United States was destined to be a white man’s country or whether there was a future for an interracial democracy on the horizon.

Taney’s fellow jurists also objected to the blanket exclusion of black Americans from the body politic. Lower federal courts resisted in surprisingly effective ways. Their willingness to interpret Taney’s decision narrowly and treat black litigants like citizens was a blow that sapped Dred Scott of much real influence.

Sitting on the federal circuit court for Illinois, Justice John McLean — who also sat on the U.S. Supreme Court and penned a dissent in Dred Scott — reined in the ruling in Mitchell v. Lamar just a few months after Dred Scott was decided. McLean deemed Joseph Mitchell, a free African American from Illinois, a citizen, thwarting Taney’s attempt to render all black Americans people without rights under the Constitution. Because Mitchell was descended from free people, rather than slaves, his status before the Constitution differed from that of Scott.

State courts also resisted Dred Scott. In Ohio, one court confronted the question of black citizenship when called upon to interpret the phrase “citizen of the United States” as set forth in its state constitution. Determining that Taney’s opinion applied only to those who, like Scott, were descendants of slaves, the court decided that a free man of mixed racial descent could be considered a citizen.

In Maine, by request of the legislature, the state’s high court interpreted a key provision of the state constitution in a way that similarly narrowed Dred Scott. The question was whether free men of color could serve as electors under a provision limiting that role to “male citizens of the United States. Yes, the court concluded: “Our constitution does not discriminate between the different races of people which constitute the inhabitants of our state; but that the term, ‘citizens of the United States,’ as used in that instrument, applies as well to free colored persons of African descent.”

Even in Taney’s home state of Maryland, where he was generally admired, the state’s highest court refused to adopt the logic of Dred Scott. When asked in the 1858 case of Hughes v. Jackson whether a free man of color could bring suit in a state court, the answer was a clear yes. Taney might have barred black litigants from federal courts as noncitizens, but the Maryland court determined that his approach was not consistent with the state’s interests. There, it was deemed essential that free black men and women have the ability to protect their property and persons by way of court proceedings — that, contra Taney, they did indeed have rights that white men were bound to respect.

By the fall of 1858, Taney was despondent over the criticisms of his ruling. “I do not feel willing to write a defense of one of my judicial opinions,” he wrote to his son-in-law and confidant J. Mason Campbell. Yet he very much wanted to. Taney’s need to justify his ruling reflects the degree to which Dred Scott was widely reviled. A sense of judicial propriety kept him from speaking out publicly, but his personal writings reveal the depth of his disappointment. Taney lamented how “disingenuous perversion and misrepresentation” were shaping the fate of Dred Scott.

So he privately penned a supplemental opinion to Dred Scott, one he hoped to publish “while the question is still exciting attention.” As he had in Dred Scott, Taney’s supplement drew upon historical analysis to argue that people of African descent had enjoyed no rights from 1689, as British subjects, through 1787, when the Constitution was ratified. And he stood ready to reargue the issue, though he suspected that the supplement’s publication would take place only after his death: “My executors must in some form or other bring it before the public.” That is indeed what would happen.

Dred Scott was good law for the briefest time, and even then was never given the full force in the daily lives of black Americans that Taney intended. Ultimately, it took the Civil War to resolve the controversy over black citizenship that Dred Scott had ignited. A consensus emerged in which black Americans were deemed citizens by virtue of their birth on U.S. soil, first in an 1862 opinion by Attorney General Edward Bates, then in the Civil Rights Act of 1866 and, finally, with the ratification of the 14th Amendment to the Constitution in July 1868. Dred Scott was undone.

Invoking Dred Scott today should do more than provide an example of how courts have, from time to time, made bad decisions. It should also show how these bad decisions can be undermined, undercut, resisted and, ultimately, even overturned.

We should remember Dred Scott as an example of how high courts can err, but it is most valuable as a primer on what can follow in the wake of a court’s injustice and as a cautionary tale about what might await a nation that fails to respond to it.