A People's History of the Supreme Court

by Peter Irons

  President Jackson’s second chance to reshape the Marshall Court came in 1829 when Bushrod Washington died after thirty years of devoted service to the Chief Justice and their shared Federalist cause. Jackson chose Henry Baldwin of Pennsylvania for the post. Like McLean, Baldwin was a career politician; he campaigned for “Old Hickory” in the 1828 election and had earlier supported Jackson’s military suppression of the Seminole Indians in Florida. Baldwin sat on the Supreme Court bench for fourteen years, during which time he wrote no major opinions and teetered on the brink of mental illness, veering between amiable agreement and vituperative outbusts against his colleagues. The death of Justice William Johnson in 1834 gave Jackson a third opportunity to place a states’ rights advocate on the Marshall Court. His nominee, James Wayne of Georgia, was a former Representative and one of Jackson’s leaders in the House. Wayne, who served on the Court for thirty-two years, left the bench, as one Supreme Court historian noted, “without making any conspicuous contribution” to constitutional doctrine.

  Justice Gabriel Duvall retired from the Court in January 1835 at the age of eighty-two, having far outlived his ability to contribute to the Court’s work. Jackson promptly nominated a close friend and political supporter, Roger Brooke Taney of Maryland, to replace Duvall. An experienced and eminent lawyer, Taney seemed to have every qualification for the post. Born in 1777, he graduated from Dickinson College in Pennsylvania at eighteen, “read law” with a Maryland judge, and began his practice in 1799, the year he first gained election to the Maryland legislature. The aspring politician built a flourishing law practice in Baltimore and was elected as the state’s attorney general in 1827. Taney campaigned vigorously for Jackson in 1828 and was rewarded with appointment in 1831 as attorney general of the United States. In this post, he issued an opinion that upheld the power of southern states to prohibit free blacks (from other states or the British Empire) from entering their borders. Taney wrote that “the African race in the United States even when free, are everywhere a degraded class, and exercise no political influence. The privileges they are allowed to enjoy, are accorded to them as a matter of kindness and benevolence rather than right. . . . They are not looked upon as citizens by the contracting parties who formed the Constitution.”

  This legal opinion did not damage Taney’s position, but he later joined Jackson’s war against the Bank of the United States and drafted the president’s veto message against rechartering the bank in 1834. After two treasury secretaries refused presidential orders to withdraw federal deposits from the bank, Jackson fired them and gave Taney a recess appointment to the cabinet post. Taney loyally carried out the president’s directives and withdrew the funds from the bank. In retaliation, the bank’s supporters in Congress blocked his nomination as treasury secretary, whereupon Taney resigned and returned to private law practice in Maryland. President Jackson wrote him that “I owe you a debt of gratitude and regard which I have not the power to discharge.”

  Determined to place Taney on the Court, Jackson decided to bide his time. Reports of Chief Justice Marshall’s declining health affected this decision; his death in July 1835 gave Jackson the chance to fill two seats at once. James Madison’s “twin” appointments of Gabriel Duvall and Joseph Story in 1812 had placed one mediocre and one distinguished justice on the Supreme Court. Jackson’s “twin” nominations of Philip Barbour to replace Duvall and Roger Taney to succeed Marshall as Chief Justice did the same in 1836. Barbour, a Virginian and former speaker of the House of Representatives, was a staunch defender of slavery in Congress and a close ally of the president. He served for only five years before his death in 1841, and dissented in only two of the 155 cases decided during his brief judicial tenure.

  Barbour’s nomination sparked considerable Senate opposition, largely from northern Whigs who objected to his “strident” states’ rights views, but his confirmation battle produced little of the partisan combat that greeted Jackson’s choice of Roger Taney to replace John Marshall. Influential senators like Henry Clay, John Calhoun, and Daniel Webster argued strenuously against Taney’s confirmation, fearing that he would lead a new Supreme Court majority in a frontal assault on Marshall’s judicial nationalism. Despite these attacks, Tancy survived a three-month struggle in the Senate. President Jackson twisted enough arms to prevail by a vote of twenty-nine to fifteen, and Taney took his seat as Chief Justice on March 15, 1836. John Marshall’s dwindling band of loyalists expressed their dismay in private, “judge Story thinks the Supreme Court is gone, and I think so, too” lamented Webster to a friend.

  Webster had ample cause for lamentation, as a case he first argued before the Marshall Court in 1831—and confidently expected to win—dragged on without decision until 1837. The case of Charles River Bridge v. Warren Bridge has won renown (at least among constitutional scholars) not from its impact on the parties—although thousands of dollars were at stake—but. from Taney’s focus on “the happiness and prosperity of the community” as the Constitution’s first principle. The sacred rights of property, secured through the Contract Clause, lost their primacy in the Charles River Bridge case to the interests of “the people,” in whose name Taney wrote his opinion.

  Like most Contract. Clause cases decided by the Court during its first five decades, the dispute between the owners of two competing bridges in Boston stemmed from political conflicts between Federalists (later Whigs) and Republicans (later Democrats). Back in 1785, the Massachusetts legislature granted an “exclusive” charter to the Charles River Bridge Company for the construction of a toll bridge between Boston and Charlestown (which provided the fastest travel between Harvard College in Cambridge and Boston’s financial and legal district). Many of the bridge’s shareholders, in fact, had Harvard connections. The charter provided that after seventy years, in 1855, the bridge would become state property. But in 1828, Jacksonian Democrats won control of the Massachusetts legislature and chartered another group, the Warren Bridge Company, to build another toll bridges, just one hundred yards away. This company was authorized to collect tolls for six years, or until the costs of construction were met, after which it would revert to public ownership.

  The owners of the first Charles River bridge, who had profited handsomely from their monopoly over four decades, sought an injunction in state court to block their upstart competitors. The state judges upheld the legislature’s power to “revise” the first charter, and the losers appealed to the Supreme Court. Not surprisingly, they hired Daniel Webster to argue their case. Webster had argued and won the Dartmouth College case in 1819, and he relied on Marshall’s opinion—which largely repeated his own words—when he first argued the bridge case in 1831. But Marshall could not muster a majority of the Court to strike down the second charter, with two of the seven justices absent, one prepared to dissent, and another who felt the Court had no jurisdiction over the case. Marshall put off a decision and ordered reargument in 1833. Once again, he could not fashion a majority and the case languished on the Court’s docket.

  When the case returned for a third time in 1837, Taney had replaced Marshall as Chief Justice and Webster no longer felt confident of victory. Those who attended the final argument reported that Webster seemed resigned to defeat and merely went through the motions of arguing that granting a competing charter “would destroy the security of all property and all rights derived under it.” But the days of state chartered monopolies were ending, and competition had became the watchword of American economic expansion. Three weeks after this argument, which pitted Webster against Professor Simon Greenleaf of Harvard’s law school, the Supreme Court upheld the state court judgment for the Warren Bridge Company.

  Webster’s defeat had actually been foreshadowed by Justice Story’s concurring opinion in the Dartmouth College case, in which he hinted to state legislators that they Could “reserve” the power to change the terms of corporate charters. Greenleaf argued that the Massachusetts legislature had “reserved” this power
to act for the public welfare. John Marshall would have emphatically rejected Greenleaf’s argument, but it fit perfectly into Roger Taney’s goal of freeing the states from the constitutional shackles of the Contract Clause that John Marshall had forged.

  Taney’s opinion in Charles River Bridge patched together Jefferson’s political ideals and the economic expansionism of the new Democrats, led first by Jackson and then by Martin Van Buren, who became president in 1837. “The object and end of all government is to promote the happiness and prosperity of the community by which it is established,” Taney wrote. “And in a country like ours, free, active, and enterprising, continually advancing in numbers and wealth; new channels of communication are daily found necessary, both for travel and trade; and are essential to the comfort, convenience, and prosperity of the people.”

  At the time Taney wrote these words, the economy was booming, fueled by another frenzy of land speculation. Bank loans had grown by more than 500 percent since 1830; nearly forty million acres of public land were sold between 1835 and 1837; and Congress distributed a federal surplus of some $40 million to the states in 1836 for the construction of highways, railroads, and canals. Taney’s opinion fit perfectly into this optimistic scenario. When Andrew Jackson left office in 1837, he reminded the public in his farewell address that “the planter, the farmer, the mechanic, and the laborer, all know that their success depends on their own industry and economy”

  However solicitous of “the people,” Taney and his fellow Democrats harbored no animosity toward the “capitalists” who were busily constructing factories to manufacture goods and building railroads to ship them to markets. “While the rights of private property are sacredly guarded,” Taney continued in his Charles River Bridge opinion, “we must not forget that the community also have rights, and that the happiness and well being of every citizen depends on their faithful preservation” He looked closely at the original bridge charter and found n grant “exclusive privilege” against future competition. And he found no such privilege “by implication” in the charter. The Contract Clause could not invade “the rights reserved to the states” to protect the interests of “privileged corporations.” Taney reminded those who sought to protect monopolies for bridges, turnpikes, and canals that “newer and better modes of transportation” such as railroads would make their charters “not worth preserving.” The power of states to promote “internal improvement” through free competition could not be blocked by the Contract Clause.

  Justice Joseph Story, the last of Marshall’s loyalists on the Court, wrote a bitter dissent. He claimed that “the state, impliedly, contracts” in every charter not to “destroy or essentially to impair the franchise” granted for a monopoly. Story could not, however, point to any provision in the charter granted by the Massachusetts legislature to the Charles River Bridge proprietors that promised any protection against future competition. Lacking any express language to support his claim, Story used the words “implied” and “implication” more than a dozen times to patch the holes in his opinion. The English common-law judges whom Story venerated had often assumed the power to read “implied” terms into contracts in the absense of express provisions. But in relying on legal principles he called “as old as the very rudiments of the common law,” Story unwittingly exposed the crumbling foundation of doctrines that had outlived their usefulness. At the same time, and also unwittingly, Story’s opinion exposed the perils of economic competition that makes every contract subject to revision by the voters.

  The rampant speculation of the 1830s came to a crashing halt in the Panic of 1837. Hundreds of banks closed, thousands of businesses failed, unemployment rose to record levels, and “bread riots” broke out in several cities as the poor and hungry fought over food that was offered by charitable groups. The resulting depression, the worst the American people had yet experienced, lasted for five years. The Taney Court’s decision in the Charles River Bridge case cannot be blamed for the Panic of 1837 any more than the Marshall Court bore responsibility for the Panic of 1819 in its McCulloch and Sturges rulings. But in one sense, the Court’s decisions in both years affected national politics and contributed to the partisan battles that ultimately shaped a Supreme Court that viewed the nation’s greatest crisis—the conflict over slavery—through southern eyes, with a constitutional vision distorted by racism, controlled by men who could not hear what Jefferson had called the “fire-bell in the night” ringing louder and louder as the United States raced toward disunion and disaster.

  Writing for the Supreme Court in the Charles River Bridge case in 1837, Chief Justice Roger Taney proclaimed that “the community” had “rights” under the Constitution, and that “the happiness and well being of every citizen depends on their faithful preservation.” Taney’s glowing testament to the democratic ideal left unanswered three very important questions. First, which “community” did he have in mind—the United States as a nation or the individual states? Second, who were the “citizens” of this community, whichever one he meant? And third, what “rights” were granted by this concept of citizenship? One conclusion from Taney’s earlier and later opinions is perfectly clear: he never intended to include African Americans—free or slave—as citizens who belonged to the political communities of the nation or the states, and he denied that they had any rights protected by the Constitution. In short, Taney was a racist who looked at blacks as items of “property” and not as “persons” who shared with whites the “privileges and immunities of citizens of the several states.” He was not the only racist or defender of slavery to sit on the Supreme Court; most of the men who served with him shared his views, and many who succeeded Taney—well into the twentieth century—upheld the doctrines of white supremacy and racial segregation.

  Two factors make Taney’s racist views especially relevant to American constitutional history. First, he was the Chief Justice, holding a position of great influence and visibility. John Marshall had rescued the Court from weakness and obscurity, and Taney inherited his mantle of leadership. And second, Taney became Chief Justice at a time of bitter political conflict over slavery, with disputes that wound up on the Court’s docket and proved the truth of Alexis de Tocqueville’s comment written in the 1830s: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”

  Slavery was the most divisive political question confronting the nation between the framing of the Constitution and the Civil War. And it became the most divisive judicial question during Taney’s tenure as Chief justice, from 1836 to 1864. Of the dozen or so Supreme Court decisions in slavery crises during these years, three deserve special discussion. The first, which decided the fate of the Africans who rebelled against their captors on the slave ship Amistad, did not raise constitutional issues but captured the nation’s attention. The second, which stemmed from the Fugitive Slave Clause in the Constitution, tested the powers of Congress to force its provisions onto the states. And the third, by far the most famous (and infamous) of the Court’s slavery decisions, focused on whether a black man named Dred Scott, held in slavery in Missouri, was a citizen of the United States and thus capable of suing for his freedom in federal court.

  The background to these cases lies in the Great Compromise over slavery in the Constitutional Convention of 1787. In addition to placing clauses in the Constitution that counted slaves as “three fifths” of a person in apportioning House seats and allowing the slave trade to continue until 1808, the Framers also provided in Article IV that “No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered upon claim of the party to whom such service or labor may be due.” Stripped of verbiage, this meant that every state was bound to return escaped slaves to their owners.

  In 1793, Congress had also passed a Fugitive Slave Ac
t that authorized slave owners or their agents to cross state lines, seize escaped slaves, take their captives before any federal judge or local magistrate, offer proof of ownership, and obtain a certificate allowing the captor to return his quarry to slavery. The Fugitive Slave Act remained on the books for almost fifty years before the Supreme Court faced a challenge to its constitutionality in 1842. But it had provoked great conflict long before that year. Did the Fugitive Slave Clause and the other slavery provisions in the Constitution authorize Congress to pass laws on this issue that would bind the states? Or did they simply express policies that did not expand the powers delegated to Congress in Section 8 of Article I?

  As the nation’s westward expansion continued, many of the settlers who surged into the new territories brought slaves with them, raising the question of whether Congress had power to prohibit slavery in federal territories. Northern “abolitionists” claimed that it did, while southern defenders of slavery denied that Congress had any power to legislate on the issue. As the residents of the western territories pressed for statehood, the conflicting sides—almost evenly balanced in Congress—initially resolved their differences in the Missouri Compromise of 1820. But that political compromise, brokered by House speaker Henry Clay of Kentucky, enraged the militant abolitionists, who responded first with magazines like The Emancipator and later with the “Underground Railroad” that guided slaves to freedom in the North and to Canada. By 1827, more than 130 antislavery groups had spread across the country, even into the South.