GOING BACK TO the chapter on the Dred Scott decision. Starting with the last paragraph I posted last week.
Under the theory upon the lower Federal court disposed of the case, the question of the Missouri Compromise was not in any way involved in the decision. Scott appealed to the United States Supreme Court. The Questions presented to the Supreme Court by the arguments of counsel were as follows:
First: Was the question of the correctness of the decision of the lower court on the plea in abatement before the Supreme Court - or was that court precluded from the considering that question by reason of the fact that the case had actually been tried and decided on the merits?
Second: If the question raised by the plea in abatement was open for consideration in the Supreme Court - was the ruling of the lower court on that question correct?
Third: If the disposition of that question was correct, and the merits of the case were therefore to be considered - was the decision upon the merits made by the lower court correct?
The last question in turn resolved itself into the following questions:
1. Was the lower court right in considering itself bound by the law as laid down by the Supreme Court of Missouri in Scott v. Emerson?
2. If the court below was wrong in that regard, and the question may be inquired into in the Federal Courts independently of that decision - what is the law of the subject? That is to say; Did Scott lose his freedom upon his return into Missouri, assuming that he had become a free man while residing in free territory?
3. If it be held that by returning to Missouri Scott did not lose the freedom which he may have acquired while out of the State - did he become a free man while residing either in the State of Illinois or in the Territory of Wisconsin?
The logical order of the problems involved required that the above enumerated points be considered by the court in the sequence in which we have stated them - for the necessity to consider subsequent points depend on the answer given to the prior points, and the decision against Scott on any one of the points except the first would decide the case without the necessity of considering any of the remaining points.
It is now known that the case was actually decided twice, and that before the decision which we now know as the Dred Scott decision had been made, the Supreme Court had decided by a majority vote to affirm the decision of the court below, approving the grounds upon which that decision was made, and that Judge Nelson was commissioned to write the opinion of the court. That opinion was actually written and appears in the printed record of the case. It is a curious document in more ways than one. It is not labeled either as a concurring or a dissenting opinion, although it is usually spoken of as if it were a concurring opinion, the usual statement being that the Dred Scott Case was decided by a majority of seven to two. As a matter of fact, it is - at least technically speaking - a dissenting opinion, because it advises a different disposition of the case from that actually made by the court. But the most striking thing about it is that, although a dissenting opinion, it reads as if it were actually the opinion of the court, disposing of the case in the name of the court. It is clear that it was written in pursuance of the commission given to Judge Nelson to write the opinion of the court affirming the judgement of the court below. And it is evident that for some reason or other Judge Nelson refused to change the formal parts of his opinion as originally written so as to adjust his opinion to the new disposition of the case.
The importance of this lies in the fact that Judge Nelson's opinion avoided the ambitious project of "settling the peace and harmony of the country by judicial decision." If, therefore, the Supreme Court had stood by its original decision and the case had been disposed of on Judge Nelson's opinion, there would have been no Dred Scott Case in the historic sense of the term. But fate willed otherwise. Chief Justice Taney and a majority of his Associates decided that the moment was opportune of the Supreme Court's taking a hand in the disturbed condition of the country, unsettled as it had become by the repeal of the Missouri Compromise, and they attempted to establish by judicial decision that "peace and harmony" which Congress could not establish by legislation.
That this change of mind on the part of the majority of the court was actuated by purely political considerations, and had nothing to do with the requirements of the case is shown by the opinions of the judges as actually delivered, and it is now fully proven as a matter of historic fact; although it was for a long time denied by the court as well as by its defenders. It is a minor point in this chain of proof, but significant on the purpose of the decision, that it was communicated to President-elect Buchanan in advance of its official announcement, contrary to the proprieties, as to enable Mr. Buchanan to foreshadow the happy solution of the problem and the restoration of "peace and harmony" to the country in his inaugural address delivered on March 4th, 1857, a memorable day in the judicial annals of this country. The opinion of the court was delivered by Chief Justice Taney, and each of the other judges wrote a separate opinion. These opinions vary in length from a few lines written by Justice Grier to the seventy pages of the official report covered by Justice Curtis' opinion.
I am going to disagree with Louis Boudin on one thing, I don't think the actions of the seven "justices" in the Supreme Court majority of this case had "purely political" considerations as their motive, some of them had financial motives, either personally benefiting from slavery or having family and associates who did. That was the reason for those two long side-trips into the pre-Dred Scott slavery cases I made over the weekend. John Marshall certainly had a vast financial interest in slavery as did members of the Taney court. I believe "justice" Grier may have had a "purer" political motive because some say he voted the way he did through the political pressure of James Buchanan who apparently was working hand-in-glove with the majority side on the Taney Court. They wanted to have a Northern "justice" voting with the Southerners so they could claim it was a "national" decision.
I have little doubt that that kind of behind the scenes political involvement of the Court goes on quite often, and it is clear there is one on the basis of an understanding if not actual behind the scenes communications. Given what is now known about that in this instance and the cultivated cult of mystery and opaqueness of the least open, entirely undemocratic and completely corrupt through its own lack of oversight locus of power branch of government is, anyone who suspects such political motivation and involvement is justified at least in their suspicions.
As the actions of Clarence Thomas (and his wife), Samuel Alito, Neal Gorsuch, Amy Coney Barrett, previously Antonin Scalia and their social and recreational activities with oligarchs and the like of Mitch McConnell* prove, their financial motivations are in plain sight and so provide evidence that their financial corruption is a given. In the case of several of them, Clarence Thomas especially, the lack of any kind of binding code of ethics including mandatory recusal in such cases, it is clear that the Supreme Court tops the Senate and House in complete amorality of that kind.
Clearly the Supreme Court, comprising nine members, not elected by selected by one man, is a lousy replacement for a legislature. When it has stepped in to take it upon itself to impose laws or dispose of them because the Congress doesn't seem to be able to fix pressing national problems - in more cases than not due to the anti-democratically elected Senate and its power for a minority of citizens to thwart the wisdom of a majority of better will - it has had the most mixed of results. I have said that what is one of the high points of the Courts aspiring to do the right thing, the renowned Brown vs. Board of Education banning racial discrimination in public schools, those results have been mixed at best and, due to economic segregation and the ability of rich, white parents to put their children into allegedly private schools (which later Supreme Courts have made sure can suck money out of public education) and school integration has actually gone backwards, though perhaps not to the depths of pre-Brown segregation.
In the case of Roe v. Wade, the Court has or is about to nullify that decision by the Berger Court, even if it has to enable state legislatures to clearly violate what just about all of the "justices" voting to do that claimed to consider "settled law" when they testilied in their Senate Judiciary confirmation hearings. Clearly when the Court is allowed such power they will eventually not need to maintain a semblance of logical or even legal coherence and will adopt principles and stands and standards that have no internal integrity when what they want to do necessitates that. That got its major support in the Dred Scott decision, as Louis Boudin demonstrates. But it was ever thus, as Paul Finkelman noted in the "great" John Marshall speaking out of both sides of his mouth depending on what he wanted to do in a case about whether or not "natural law" is relevant in Constitutional matters, claiming its authority in money cases and denying it should ever have such power in slavery cases. You can see the same thing all over the New Taney Court, the Roberts Court, which turns into a game of double-speaking word-salad and, since it's the court of final appeal, nothing can overrule it. Not even the voters.
* There is little that can top the hypocrisy and blatant dishonesty of "justice" Barrett appearing at the Mitch McConnell center, speaking right next to Mitch McConnell, the man who broke his own instantly invented rule against election year appointments to the court, so he could put the odious Neal Gorsuch on the court, so she could claim the court was above politics. What she proved, as have the others, is that the court is not above politics but it is beneath contempt.
Update: I should have added that I think the extreme measure of nullifying the Missouri Compromise which had been seen as valid law for nearly forty years and which, in any case had already been repealed in favor of what would turn into "states rights," was because the Dred Scott majority of "justices" felt they needed to make that gesture to cement slavery into the Constitution by declaring Black People to be non-people. They had to do that in order to pretend that the Constitution had never considered Black People to be eligible to be citizens, even though it was clear that in a number of states Black men could and did vote.
It's clear that whatever "peace and harmony" reigned, they wanted it to include the violence and murder of slavery because all of them had a personal or cultural or racist interest in protecting it from both those held in slavery, Black People who were not in slavery and white abolitionists who opposed slavery. No matter what the majority of People thought about it. Like the Electoral College and the anti-democratic Senate, they figured they could install slavery into the Constitution and it would be next to impossible to get it out, especially if they could extend what the slave-power were trying to accomplish in the Kansas Territory through violence that extended to white abolitionists as well as Black People. That was the reality under which the Taney Court worked their Supreme Court magic within.
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