Justice  /  Comparison

‘The Dred Scott of Our Time’

The Supreme Court has invested the presidency with quasi-monarchial powers, repudiating the foundational principle of the rule of law.

Until this Court’s tenure, Dred Scott had been the most notorious example of the Court’s violation of that principle. The case was political dynamite. By deciding the fate of Dred and Harriet Scott, slaves claiming their freedom based on their residence in Illinois and the free territory of Wisconsin, the Court intervened in the mounting crisis over Congress’s ability to halt slavery’s spread in the territories—the main issue behind the rise of the antislavery Republican Party. President James Buchanan, a Democrat and a northerner of southern sympathies, interfered outrageously in the Court’s deliberations prior to his inauguration, secretly pressuring justices to issue a comprehensive ruling that barred black people, enslaved and free, from national citizenship, which is precisely what those justices ruled. (The full extent of Buchanan’s intervention was hidden for decades.) 

Chief Justice Taney was the original originalist. He based his majority opinion, he asserted, on the Constitution’s precise meaning at its framing and ratification. In ruling against Scott, Taney not only proscribed black citizenship but also denied Congress any authority over slavery, effectively (and ironically) nullifying Article IV, section 3, clause 2 of the Constitution, which gave it “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Black people had never been considered citizens, he pronounced, and the Constitution explicitly rendered property in humans secure from federal government action. Both claims—as critics, including two dissenting justices, pointed out—were manifestly erroneous. Apart from degrading the status of black Americans, the decision in effect proclaimed the Republicans’ antislavery program unconstitutional, making Dred Scott the most direct intervention by the Court in partisan politics leading up to a presidential election in American history—at least until now. Lincoln famously refuted Taney’s claims about the founders and the Constitution in his Cooper Union address in early 1860. 

Northern outrage at the ruling helped elect Lincoln, but Taney’s decision remained in place until the ratification of the Thirteenth and Fourteenth Amendments abolished slavery and declared that all persons born in the United States were citizens of the United States. It informed the proslavery legal order promulgated by the constitution of the Confederate States of America in 1861, which codified Taney’s specious originalism as its cornerstone by explicitly enshrining slavery as an unassailable institution. 

Until Trump v. United States, no one decision by the Roberts Court carried significance comparable in magnitude to that of Dred Scott. Numerous other shamefully activist rulings—the Dobbs decision on abortion, the Bruen decision on gun regulation, dozens of others—have been just as egregious in their flawed reasoning and transparent political purposes. But Trump v. United States is distinct as a deliberate attack on the core institutions and principles of the republic, preparing the way for a MAGA authoritarian regime much as Dred Scott tried to do for the slavocracy.