Dred Scott v. Sandford is undoubtedly among the most reviled Supreme Court decisions, often invoked as a clear example of what judges should not do. Jamal Greene, a constitutional scholar at Columbia Law School, has described it as part of the “anticanon” of constitutional law, which includes Plessy v. Ferguson, of “separate but equal” fame, and Korematsu v. United States, which permitted the Japanese internment. But Greene has argued that the cases, including Dred Scott, are not necessarily poorly reasoned according to the forms of constitutional analysis that we still use today, involving the interpretation of text, structure, and history. Casting Taney as “a villain who ignored the Constitution,” Greene writes, may be “a distraction from the reasonable possibility that the Constitution itself enabled Scott to lose.”
When I spoke recently with Nikolas Bowie, my colleague and fellow constitutional-law teacher at Harvard Law School, he put it more strongly: “The Constitution sanctioned slavery.” He said that “it would be profoundly irresponsible to tell a history of the Constitution that intentionally ignores the injustice that the Constitution has perpetuated.” In his view, Dred Scott is not “a case in which the Supreme Court made a logical error or an analytic mistake,” nor can it be dismissed as “The Supreme Court was racist back then.” Rather, Bowie uses the case to “emphasize that what makes something constitutional is not its substantive justice but the ability of someone to justify it using constitutional vocabulary.” He said, “The reason the opinion deserves to be condemned is because it thought it needed to be bound by the constitutional drafters’ dehumanization of Black people. What sort of injustice has that obedience engendered or tolerated?”
In my own constitutional-law course, I assign Dred Scott as the first case for the first day, which is not uncommon. Doing so immediately foregrounds the centrality of slavery and white supremacy to the country’s origin, as a frame for understanding constitutional law. It shows that the standard techniques of constitutional interpretation that students are learning to deploy have enabled morally disastrous conclusions. It also helps to disabuse students of the impulse to approach the Constitution and the Supreme Court with uncritical worship. Julian Davis Mortenson, a professor at the University of Michigan Law School who also begins his course with Dred Scott, told me that teaching the case at the start “completely inverts the hero narrative of the Supreme Court, shows how rights can be deeply oppressive, and questions the legitimacy of the enterprise.” Mortenson believes that the decision unwittingly “conveys the essence of Critical Race Theory to a person encountering these ideas for the first time: this is the Supreme Court explaining how the United States has been superracist forever and endorsing the racism. It’s a powerful way for students to confront the racism that has been central to the United States.”