A People's History of the Supreme Court

by Peter Irons

  With four southerners on the Taney Court, the North got its due in the next three appointments. President John Tyler, himself a Virginian, shored up the Democratic Party’s shaky northern wing by nominating Samuel Nelson of New York to the Court in 1845. Nelson had extensive judicial experience, serving in state judicial office for more than two decades before he joined the Supreme Court. Like his colleague Justice Wayne, Nelson was a judicial workhorse, grinding out 347 opinions during his twenty-seven years on the Court. Sitting on New York’s courts, Nelson had never expressed his opinions on slavery, but on the Supreme Court he turned out to be a southerner in sheep’s clothing. As a fervent states’ rights advocate, he refused to acknowledge any federal power to ban slavery in the nation’s territories.

  President James Polk of Tennessee, a Democrat who took office in 1845, added to the Taney Court another northerner who voted with the southerners on the slavery issue. Robert Grier, a Pennsylvania state judge, took his seat in 1846 and served for twenty-six years without distinction. Defending his party’s stand on states’ rights, Grier upheld in 1852 an Illinois fugitive slave law, writing for the Court that states had the power to repel from their soil a population likely to become burdensome and injurious, either as paupers or criminals.”

  After the Whigs evicted the Democrats from the White House in 1849, President Millard Fillmore(who replaced Zachary Taylor after his sudden death in 1850) nominated Benjamin Curtis of Massachusetts to fill the “New England seat” on the Supreme Court. Curtis, who came to the bench from private practice in Boston, specialized in commercial law and had been highly recommended by Daniel Webster. Before he joined the Court, Curtis had supported the constitutionality of the Fugitive Slave Act of 1850, and abolitionists in the Senate briefly held up his confirmation. Curtis served on the Court for only six years, but with greater distinction than any other member of the Taney Court.

  President Franklin Pierce of New Hampshire took office in 1853 as a Democrat. This obscure politician (who gained his party’s nomination on the forty-ninth ballot) won election by a narrow margin, only because the slavery issue had divided the Whigs and provoked its abolitionist wing to support the Free-Soil Party. During his one term in office, Pierce nominated just one man to the Supreme Court. But his choice of John Campbell of Alabama, designed to placate the southerners who dominated the Democrats, gave the South a crucial fifth seat on the Court. Campbell had practiced law since the age of eighteen and had argued six cases before the Supreme Court before his nomination. The New York, Tribune, edited by the fervently abolitionist Horace Greeley, described Campbell as “a gentleman of shining and profound talents,” but on the slavery issue “a fire-eater of the blazing school.” Unlike his southern colleagues, Wayne and Catron, Campbell supported the South during the Civil War and resigned his Supreme Court seat in 1861 to serve the confederate government as assistant secretary of war.

  The arithmetic of the Supreme Court is simple: five is a majority of nine. To win his freedom—and that of his wife and daughters—Dred Scott needed the votes of five justices. judicial politics is not always simple, but five of the nine justices who decided his case were southerners, whose personal views and sectional ties made it virtually certain that Dred Scott would remain a slave. Hardly anyone—including Scott’s lawyers and his abolitionist supporters—doubted that the Court would decide that Dred Scott was not a “citizen” of Missouri, and was thus unable to bring suit for his freedom in federal court. Beyond this likely outcome, some crucial questions remained, and it was hard to predict whether the justices would address them. If the Court ruled against Scott and ordered that his suit be dismissed on jurisdictional grounds, would the proslavery majority decide issues that were not raised in the case? Most. important, would the Court rule, as urged by southern “fire-eaters” in Congress, that the national government had no constitutional power to outlaw slavery in the western territories? This was the burning issue in national politics, one the justices could either face directly or evade in the Dred Scott case. Whatever decision it made, the Court would endure heated criticism from the partisans on both sides of the slavery issue.

  In retrospect, it seems odd that the case attracted little attention before the Court first heard arguments in February 1856. Even the Missouri Republican of St. Louis, a newspaper that opposed slavery, did not mention it in listing the cases the Court would hear during the term. Not surprisingly, the heated debates over slavery in Congress aroused more public interest than an obscure case that had dragged on for ten years in state and federal courts. Montgomery Blair, the prominent Washington lawyer who agreed to represent Dred Scott before the Supreme Court without fee, submitted a legal brief to the Court—quite brief at ten pages—that made no mention of the territorial issue or the claim that Dred Scott’s residence in Wisconsin Territory had freed him from slavery. Blair pur all his chips on the argument that Scott had been “emancipated by his master’s having taken him to reside in the State of Illinois.” This was a risky strategy, since the federal court in St. Louis—agreeing with the Missouri supreme court—had ruled that Missouri law prevailed over that of Illinois in the case.

  The two lawyers who opposed Montgomery Blair matched him in eminence and experience. Henry S. Geyer represented Missouri in the Senate and was highly regarded as a Supreme Court advocate. Reverdy Johnson of Maryland, an old friend of Chief Justice Taney, was himself a former senator and attorney general under President Zachary Taylor. It is unlikely that John Sanford—the nominal defendant in the case—possessed the funds or even the mental capacity to hire Geyer and johnson. Sanford would shortly be confined to a mental asylum, and Johnson later said that an unidentified “southern gentleman” had recruited him to the case.

  The Supreme Court, record does not contain any brief filed by Geyer and Johnson. Based on fragmentary newspaper accounts, we know that the oral arguments in February 1856 began with Blair’s claim that Dred Scott had been emancipated by his residence in Illinois. Blair rested his case on the dissenting opinion in the Missouri supreme court decision that had rejected Dred’s suit for freedom. Relying on dissenting opinions by lower-court judges is a risky strategy, but Blair had nowhere else to turn for legal authority on this point. On their part, Geyer and Johnson argued that the Supreme Court should uphold the “plea in abatement” that Sanford had filed in the lower federal court. This legal term—no longer in use—meant that Sanford objected to Dred Scott’s suit on the ground that it had been improperly filed in federal court. In effect, Sanford had asked the court to dismiss the case for lack of jurisdiction, on the ground that Scott, as a slave, was not a “citizen” of Missouri. Therefore, he lacked standing under the Diversity Clause of the Constitution to bring suit in federal court against a resident of New York. Scott had filed a “demurrer” to this plea, a reply that disputed the legal grounds of Sanford’s objection to his suit; the lower federal court had upheld Scott’s demurrer and had ruled that his “residence” in Missouri gave him enough standing to bring suit against Sanford. But this ruling did not address the question of whether Scott was a “citizen” of Missouri, or of the United States. Arguing that the lower court had erroneously rejected Sanford’s plea in abatement, Geyer and Johnson urged the Supreme Court to reverse the lower court on this issue. Pushing their argument beyond the narrow issue of state law decided by the lower courts, Geyer and Johnson also attacked the constitutionality of the Missouri Compromise, hoping to slam every legal door in Dred Scott’s face.

  After the arguments in February 1856, the justices met at least five times to discuss the case. But their lengthy discussions over the next three months failed to produce a decision. The justices were apparently divided, four to four, on the crucial question of whether the Court could review Sanford’s plea in abatement. Montgomery Blair had argued that Sanford’s lawyers had “waived” this claim by “pleading over to the merits” in the lower court, which meant they had proceeded with the trial after the federal judge reje
cted their plea. Consequently, Blair added, they could not revive the plea in higher courts. On this important issue, Justice Samuel Nelson was unwilling to cast the deciding vote. On the more political question raised in the case, Justice Benjamin Curtis confided to a friend that the Court “will not decide the question of the Missouri Compromise” in the case. Most likely, the justices were hesitant to rule on this politically charged issue just before the nation became embroiled in a divisive presidential campaign. Whatever their real opinions or motivations, the justices agreed without dissent on May 12 to set the case for reargument in December, after the electoral votes had been counted.

  The presidential election of 1856 was the seventh in a row that gave voters a choice between three or more candidates. The Democrats met in June and dumped President Franklin Pierce, who had proved incapable of healing his party’s divisions over slavery. They replaced him with James Buchanan of Pennsylvania, who had stayed away from the controversy while serving as minister to England. The Democratic platform sidestepped the issue of congressional power over slavery in the territories. The Whig Party, under the new banner of the Republicans, turned down the presidential bid of justice John McLean and nominated John Frémont, who had little political experience but was widely admired for his frontier explorations. The Republican platform backed the power of Congress to ban slavery in the territories, but Frémont was not a “fire-eater” on the issue and left most voters lukewarm toward him. The third major candidate, former president Millard Fillmore, represented the American Party, which waffled on the slavery issue and largely represented dichard Whigs who could not support either Buchanan or Frémont. All three candidates avoided the slavery issue, and the election did not become the national referendum that might have settled—or inflamed—this festering issue. When the ballots were counted, Fillmore proved to be a spoiler, draining enough votes from Frémont to elect Buchanan, who received a plurality of the popular vote but won a solid majority in the electoral college. Buchanan’s election placed in the White House a “timid and indecisive” man who proved “a disaster for the nation,” as a leading historian of the period wrote.

  14

  “Beings of an Inferior Order”

  The equivocal outcome of the 1856 presidential election raised the stakes in the Dred Scott case, forcing the Supreme Court to face the slavery issue the candidates had evaded in their campaigns. The second round of arguments began on December 15, 1856. By this time, the case had attracted considerable attention, and the press noted that the Court’s chamber was crowded with “many distinguished jurists and members of Congress.” Once again, the Court did not record the arguments. “The reporter regrets that want of room will not allow him to give the arguments of counsel,” he lamented in the official report, “but he regrets it the less, because the subject is thoroughly examined” in the 234 pages of opinions the justices produced in this momentous case.

  All three lawyers who had argued the case previously returned for the second round. Montgomery Blair led off, once again, with the claim that John Sanford had waived his jurisdictional objections to the suit by “pleading over to the merits” in the lower federal court. This was a shaky argument, because appellate courts had long asserted their power to correct the jurisdictional mistakes of lower courts. Blair spoke with more authority in arguing that Dred Scott had been a “citizen” of Missouri when he filed his suit for freedom. He pointed to federal and state laws that made no distinction between “citizens” and “free inhabitants.” This argument assumed, of course, that Scott’s residence in Illinois and Wisconsin Territory had emancipated him fron slavery. Given this assumption, Blair continued, Scott was a citizen of Missouri and thus had standing to bring suit in federal court. Significantly, Blair made no effort to claim that slaves were citizens, either of the states in which they resided or of the United States. His argument stood or fell on the Court’s decision as to whether Dred Scott was a free black or a slave.

  The issue of the constitutionality of the Missouri Compromise had not been raised before any of the courts, state and federal, that had already ruled in the case, nor had the Supreme Court asked for argument on the question. Sanford’s lawyers, Henry Geyer and Reverdy Johnson, however, devoted much of their time before the Court to attacking the Missouri Compromise. Their motivation was partly legal and largely political. A simple ruling on Scott’s status as a citizen would end the case without further inflaming the sectional debate that raged directly above the Court’s chamber, in both wings of the Capitol. But Sanford’s lawyers—and the southern “gentlemen” who supported them—wanted to enlist the Court in their campaign to, in effect, nationalize slavery by ruling that Congress could not prohibit slavery in any state or territory. A ruling that the Missouri Compromise was unconstitutional would pave the way for later cases that raised this issue.

  The lawyers on both sides devoted much argument to Section 3 of Article IV in the Constitution, which provided that “Congress shall have power to dispose of and make all needful rules and regulations respecting the territory” of the United States. Sanford’s lawyers urged a narrow construction of this clause. Conceding that Congress did have power to institute temporary governments in the territories, pending their admission as states, they argued that prohibition of slavery was not the kind of “needful” legislation required to govern a territory. Montgomery Blair had recruited George Curtis, a prominent Boston lawyer and brother of Justice Benjamin Curtis, to address this issue before the Court. Curtis replied to Sanford’s lawyers by arguing that deciding what legislation was “needful” was a political question, to be answered by Congress and not the Court. Congress and the states had both legislated many times on the slavery issue, and prohibiting slavery was as much within legislative power as allowing or regulating it. Curtis noted that even staunchly proslavery lawmakers like John Calhoun had voted for the Missouri Compromise and thus accepted congressional power to prohibit slavery. In their rebuttal to Curtis, Sanford’s advocates replied that Calhoun and other southerners in Congress had made a “compromise of principle necessary to the existence of the Union” without abandoning their constitutional objections to the Missouri Compromise. They added that the statements of congressmen did not decide the constitutionality of legislation; that was the Court’s job.

  Seated at the center of the Court’s mahogany bench, Chief justice Taney listened to the arguments with his mind already made up. As the nation’s attorney general, he had earlier stated his opinion that blacks, “even if free,” had not been “looked upon as citizens by the contracting parties who formed the Constitution.” The question that remained, as the lawyers left the podium and the justices trooped out behind Taney, was not how the Court would rule on Dred Scott’s suit for freedom, but whether its decision would further inflame the slavery dispute that divided the nation.

  Dred Scott and his family—and the entire country—waited almost three months for a decision by the Supreme Court, while the justices conferred behind closed doors and labored over drafts of opinions on both sides of the case. During these months, very few outside the Court were aware that voting alignments on the various issues in the case shifted more than once, and that no single resolution commanded a clear majority. Initially, only the five southern justices were willing to hold the Missouri Compromise unconstitutional. Two justices, McLean and Curtis, disagreed and were prepared to dissent. The remaining northerners, Nelson and Grier, did not want to deal with the territorial issue and urged their colleagues to issue a narrow ruling that upheld the lower-court decision and avoided the questions of the Missouri Compromise and whether blacks, free or slave, were citizens. Nelson and Grier feared that if the Court split on sectional lines over these divisive issues, the public would conclude that the justices were swayed more by personal and political sentiments than by legal arguments.

  Initially, the seven justices who wanted to keep Dred Scott in slavery agreed that Nelson would write a narrow opinion, upholding
the lower-court ruling that Scott had “reverted” to slavery under Missouri law. Nelson quickly drafted a relatively brief opinion of about five thousand words (the final opinions, on both sides, consumed more than 100,000 words). But the shaky coalition for which Nelson wrote soon fell apart; at least three of the southern justices decided that the Court should rule on the Missouri Compromise. Don Fehrenbacher attributes this shift to the “bitter sectionalism” of Chief Justice Taney, and to pressure from President-elect Buchanan, who wanted to point approvingly to the Court’s opinion in his forthcoming inaugural address, scheduled for March 4, 1857. Buchanan wrote in early February to Justice Catron, an old friend, asking when the Court would issue its decision. Buchanan was obviously hoping for inside information of the scope of the Court’s ruling as well as its timing. Catron replied that the Court would dispose of the case before the inauguration, but without a ruling on the Missouri Compromise, the issue that most concerned Buchanan.

  During the two weeks that followed Catron’s first letter to Buchanan, Chief Justice Taney decided to throw moderation to the winds and write a “fire-eating” opinion that would serve as a proslavery manifesto. Taney recognized, however, that his position would be stronger if at least one northern justice joined the five southerners on the territorial issue. The most likely candidate was Robert Grier, from Buchanan’s state and party. Justice Catron sent a second letter to Buchanan, urging him to exert his influence on Grier. Buchanan wrote to Grier, who conferred with Taney and justice James Wayne, who matched and perhaps exceeded the Chief Justice in defending slavery. The deal was scaled in Grier’s reply to Buchanan: “I am anxious that it should not appear that the line of latitude should mark the line of division in the court.” Grier deferred to Taney: “On conversation with the chief justice, I have decided to concur with him” on the Missouri Compromise issue.