The bare contemplation of such a possibility makes us pause in our boastful assertion that our written Constitution is clearly the best adapted to all exigencies, the last, best gift to man

BEFORE STARTING  on the next section about the Dred Scott decision, itself,  and following up on the last piece quoting Lincoln's First Inaugural Address on the dangers of the Court assuming the powers it has created for itself, I'm going to jump ahead for this post to the next chapter dealing with the Supreme Court in the last year of Taney's leadership of it, especially in the second of two cases in which Taney and the Supreme Court acted in cases brought so they could hamper Lincoln's conduct of the Civil War. 

Louis Boudin quoted a letter by one of the lawyers who argued the Prizes Cases which attempted to end Lincoln's blockade of Confederate ports.  That lawyer,  Richard Henry Dana, better known today as a novelist,  wrote about the extent to which the pro-slavery side on the Taney Court was ready to test their powers as the Civil War was going on in, "The Prizes Cases" that would have prevented President Lincoln from enforcing his blockade of Southern ports, making it impossible for the Union to win the war.   I have no doubt that Taney, stung by Lincoln's refusal to honor writs of Habeas Corpus in Maryland, Taney's district, would have liked to strike back.

The case was decided in Lincoln's favor by the narrowest of majorities, but if he hadn't been able to already appoint three of the "justices" before then it would likely have gone the other way. One of them having quit the court to go home to Alabama, defecting to the Confederacy.   As Louis Boudin said in regard to the arguments in the case, "It is, however, very doubtful whether his [Dana's] argument really determined the decision of any one of the judges—such decisions usually being arrived at in other ways than by listening to the arguments of counsel."  Something I've never doubted to be the case in any court in any case.  I think generally the determination of how they "justices" are going to vote precedes the case and, in fact, precedes their appointment to the court in a large number of instances.  Oral arguments on the slavery cases is as pro forma as the ones on the abortion cases and the Voting Rights cases before the Roberts Court are.

In a letter to Charles Francis Adams, dated March 9th, 1863,  Dana said:

"These causes present our Constitution in a new and peculiar light. In all States but ours, now existing or that have ever existed, the function of the Judiciary is to interpret the acts of the Government. In ours, it is to decide their legality. The Government is carrying on a war. It is exerting all the powers of war. Yet the claimants of the captured vessels not only seek to save their vessels by denying that they are liable to capture but deny the right of the Government to exercise war powers,—deny that this can be, in point of law, a war. So the Judiciary is actually, after a war of twenty-three months' duration, to decide whether the Government has the legal capacity to exert these war powers. This is the result of a written constitution as a supreme law, under which there is no sovereign power, but only co-ordinate departments.

"Contemplate, my dear sir, the possibility of the Supreme Court deciding that this blockade is illegal! What a position it would put us in before the world whose commerce we have been illegally prohibiting, whom we have unlawfully subjected to a cotton famine and domestic dangers and distress for two years! It would end the war, and where it would leave us with neutral powers, it is fearful to contemplate! Yet, such an event is legally possible - I do not think it probable, hardly possible, in fact. But last year, I think there was danger of such a result, when the blockade was new and before the three new judges were appointed. The bare contemplation of such a possibility makes us pause in our boastful assertion that our written Constitution is clearly the best adapted to all exigencies, the last, best gift to man.” (Adams, Life of R. H. Dana, II, p. 266)

And Mr. Dana was optimistic at that. For with the three new judges, and the age of the blockade, the Government escaped defeat by the narrowest possible margin. The opinion of the Court in this case was delivered by Mr. Justice Grier, who said some rather sharp things of the argument on behalf of the claimants, besides presenting a legal argument on the questions of international law involved. Among other things he said: "This argument rests on the assumption of two propositions, each of which is without foundation in the established law of nations. It assumes that where a civil war exists the party belligerent claiming to be sovereign, cannot, for some unknown reason, exercise the rights of belligerents, although the revolutionary party may.  Being sovereign, he can exercise only sovereign rights over. 

With the power that the Court claimed for itself six years earlier, it left the very issue of the survival of the United States up to the whim of one "justice."   Though if it were a matter of the whimsy and unstated prejudices, interests and bigotry of a unanimous court it would have still left the United States divided once and, certainly, what some states could do once others would do on that precedence, so the very pretense of why the Constitution was written as it was and the Supreme Court created by it was made could be disposed of by unelected Supreme Court "justices" who had declared they had such powers by fiat, removable only through their death or decision to pursue other interests.  If Grier, who had voted for the damnable Dred Scott decision,  had been from Virginia instead of Pennsylvania he would probably have let his tender feelings he, nevertheless, expressed for the claimants win the day and he would have gone home to be a hero of the Confederacy which would have won the war aided by foreign textile and other interests.