Dred Scott Is the Warning Every Fan of Judicial Supremacy Should Read

Every few years, someone with a gavel-shaped lapel pin informs the country that the Supreme Court has spoken, that the matter is closed, and that anyone who keeps arguing is an enemy of the rule of law. It is delivered with the calm of a man who has never read the history of his own subject. Because the history of the Supreme Court declaring a great national question closed has one famous chapter, and it ends in a war.

The case is Dred Scott v. Sandford, decided on March 6, 1857. If you want to know what happens when the Court is certain it can settle by decree a moral question that the country is in the middle of arguing, read this case. If you believe the Court is the last word on the Constitution, read it twice.

Who Dred Scott was

Dred Scott was an enslaved man born in Virginia around the turn of the century. He was owned by Dr. John Emerson, a surgeon in the United States Army. Emerson's assignments took Scott, in the 1830s, first to Rock Island, Illinois, a free state, and then to Fort Snelling, in what was then the Wisconsin Territory, in an area that is now Minnesota. Slavery was prohibited there by the Missouri Compromise of 1820, which barred it in the Louisiana Purchase territory north of the line of 36 degrees 30 minutes, apart from Missouri itself.

Scott married Harriet Robinson at Fort Snelling. The Emersons returned to Missouri, a slave state, in 1840, and after Emerson's death in 1843, in 1846 Scott filed suit in a St. Louis court for his freedom, arguing that residence in free territory had made him free. Missouri courts had, in earlier decisions, accepted that argument. Scott won at trial in 1850, but the Missouri Supreme Court reversed in 1852. His lawyers then took the case to federal court, naming as defendant John Sanford of New York, the brother of Emerson's widow, whose name the court reporter misspelled as "Sandford," and so the case is known to history. Federal jurisdiction rested on the claim that Scott, a Missourian, and Sanford, a New Yorker, were citizens of different states. A federal trial court ruled against Scott, and the case went to the Supreme Court.

That is the human story, and it is worth remembering that it began as a family's lawsuit for freedom, not as a political manifesto. The Court's response turned it into one.

The question

The Court had two kinds of questions before it. The first was narrow: was Scott a citizen of Missouri for purposes of federal court jurisdiction, and did his residence in free territory make him free? The second was enormous: did Congress have the power to ban slavery in the federal territories at all?

A modest Court could have said that the Missouri Supreme Court's reading of Missouri law controlled, ruled against Scott on narrow grounds, and stayed out of the political storm. Instead, the majority chose to speak to everything. Chief Justice Roger Taney, then in his eightieth year, wrote an opinion for the Court that addressed every question it could reach and decided each one in a direction that stunned the North.

Taney's holdings

The Court ruled 7-2 against Scott. Each of the major holdings deserves to be stated carefully.

1. Black Americans, free or slave, could not be citizens of the United States. Taney reasoned that the Constitution's framers had regarded people of African descent as "a subordinate and inferior class of beings" who were not part of the "people" who made the Constitution. In the course of describing the founding era's attitudes, he wrote that they had been regarded as having "no rights which the white man was bound to respect." The Court held that Scott therefore could not sue in federal court. The conclusion was historical nonsense, as the dissents showed, and morally monstrous.
2. The Missouri Compromise was unconstitutional. Taney held that Congress had no power to prohibit slavery in the federal territories. The Court went further and held that the Fifth Amendment's guarantee that no person shall be deprived of "life, liberty, or property, without due process of law" protected a slaveholder's claim to his human property in the territories. Think about what that reasoning did: it read the due process clause as a substantive guarantee of a particular economic right, which is a use of the clause that conservatives have long criticized when it appears in later cases.
3. Scott's residence in free territory did not make him free. Because Congress could not ban slavery there, the Court said, Scott's stay at Fort Snelling had no legal effect, and his status was governed by Missouri law, which the Missouri Supreme Court had already read against him.

The consequences of the second holding were immediate. The Missouri Compromise had been repealed in 1854 by the Kansas-Nebraska Act, and the Republican Party had been founded on the principle that Congress could and should exclude slavery from the territories. By declaring that Congress had never had the power, the Court declared the party's central program unconstitutional. It was an attempt to end a national argument by judicial fiat.

The two dissents

Two Justices dissented, and their opinions are the part of the case every student of the Constitution should read.

Justice Benjamin Curtis of Massachusetts attacked Taney's history at its root. At the time the Constitution was ratified, he pointed out, free Black men were voting citizens in at least five states. Those states had ratified the Constitution; their free Black citizens had been among the people whose consent it rested on. The Constitution's own text had not excluded them. A document that was ratified in part by Black voters, Curtis said, could not be read to say that Black Americans were beyond its protection. Curtis also argued that, once the Court had decided it lacked jurisdiction because Scott was not a citizen, it should have stopped there and not gone on to rule on the Missouri Compromise. Curtis resigned from the Court later in 1857.

Justice John McLean of Ohio also dissented. He argued that, having found it lacked jurisdiction, the Court should simply have dismissed the case, and that its remarks on the merits were not binding.

Between them, the dissenters made a case rooted in the text, the ratification history and the long practice of the early republic. They were right, and the Court was wrong, and that tells us something about whether to trust a Court that claims finality.

The aftermath

The decision did not end the argument. It inflamed it. Abraham Lincoln, in his 1858 debates with Stephen Douglas in Illinois, argued that the decision was wrongly decided and should be resisted by constitutional means. At Freeport that August, Lincoln pressed Douglas on how the people of a territory could keep slavery out if the Court had said Congress could not. The exchange put the decision at the center of the campaign, and it helped hand Lincoln the stage on which he became a national figure.

For Scott himself, the ruling meant return to slavery, but not for long. In May 1857, the widow's family, whose new husband was an abolitionist congressman, transferred Scott and his family to Taylor Blow, the son of Scott's former owner, who freed them. Dred Scott lived as a free man for about a year and a half and died in 1858 of tuberculosis.

Lincoln's answer

Lincoln's considered response to Dred Scott appears in his first inaugural address, on March 4, 1861. He did not say the Court's decision was void. He said something more careful and more important, and constitutionalists should know it by heart.

He conceded that the Court's decisions "must be binding in any case, upon the parties to a suit, as to the object of that suit," and that they deserve "very high respect and consideration in all parallel cases by all other departments of the government." Then came the limit: "At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

That passage is the foundation of what I would call the Lincoln position: judicial review, yes; judicial supremacy, no. The Court decides the case before it, and its judgment binds the parties. It does not decide for the other branches what the Constitution means in every future context, and it does not silence the people's right to argue that it erred and to vote accordingly. For the longer treatment of that distinction, see Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not.

The Fourteenth Amendment answers

The country did not settle the question by judicial decree. It settled it by civil war and then by amendment. The Thirteenth Amendment, ratified in December 1865, abolished slavery. And the Fourteenth Amendment, ratified in July 1868, began with a sentence that reads as a direct repudiation of Taney: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Read that sentence as the correction of a specific holding. The Court had said that Black Americans could not be citizens. The people of the United States said, through Article V, that anyone born here is. The people overruled the Court, in the only way the Constitution allows the people to overrule it: by changing the text. That is the system working as designed, and it is also the strongest argument that no court should claim the last word, since the last word, in the end, belongs to the people. For how the amendment's principle later fared, see Can an Originalist Defend Brown v. Board? Yes, and Here Is the Case.

The objection from the other side

A defender of the Court's supremacy will say this is unfair. Dred Scott was a terrible decision, no one defends it, and it hardly proves that the Court is generally unreliable. The Court has also decided Brown, which was right. If you want to cite one failure, cite also the successes. And if every citizen and every official may disregard the Court when he thinks it wrong, the result is anarchy, with each person his own Supreme Court.

That is a good objection, and the answer is in four steps.

1. Nobody is saying the Court is usually wrong. The claim is narrower: the Court is fallible, and a fallible institution should not hold the last word on questions the Constitution leaves to the people. The Court's good decisions do not guarantee its next one.
2. Judicial review does not require supremacy. A court that decides cases, and whose judgments bind the parties, is already doing what Marshall's reasoning in Marbury allowed. It does not follow that the Court's reading of the Constitution binds Congress and the President when they act within their own powers. The Constitution gives each officer an oath to support it, and an oath is not a delegation of conscience to a tribunal. See Marshall Gave Up William Marbury's Commission to Win the Bigger Argument.
3. The remedy for a bad decision is not defiance, but politics and amendment. Lincoln did not tell people to ignore the Court. He told them to elect a government that would resist the doctrine of Dred Scott by lawful means, which included Presidents appointing different judges, Congress using its powers over territories and, ultimately, amendment.
4. The Court's authority has been strongest when it is humblest. The moments of greatest weakness in the Court's history, Dred Scott and Lochner, were moments when it tried to settle by decree what the people were still arguing. A Court that knows it is one voice in a larger conversation is stronger for it.

There is a bit of comedy in the way the lesson gets learned. Every generation's advocates of judicial supremacy cheer the Court when it agrees with them and rediscover constitutional departmentalism the day it does not. The cure is to decide, in advance of knowing who will win, whether you believe in the principle.

What the case teaches an ordinary citizen

Three lessons, each short.

First, the Constitution's text and the Court's reading of it are not the same thing. Taney claimed to be applying the Constitution, and the dissenters, with the text and history on their side, showed that he was not. If you want to know what the Constitution says, read the Constitution.

Second, a Court that tries to settle a moral question by decree can wreck its own authority.

Third, the people hold the final power. Article V is not an inconvenience. It is the reason the answer to Dred Scott was the Fourteenth Amendment and not permanent submission to Taney.

The case in brief

1. Dred Scott sued for freedom after living in free territory, and in 1857 the Court ruled 7-2 that Black Americans could not be citizens, that Congress could not ban slavery in the territories, and that Scott remained a slave.
2. Taney went beyond what the case required, and the dissents of Curtis and McLean showed that his history and his reading of the Fifth Amendment were wrong.
3. Lincoln's 1861 inaugural address accepted that a decision binds the parties but warned that if policy on vital questions is irrevocably fixed by the Court, the people cease to be their own rulers.
4. The people answered Dred Scott through Article V, with the Thirteenth and Fourteenth Amendments, which overruled the citizenship holding by text.
5. Judicial review is a duty to apply the law to cases, while judicial supremacy is a claim that the Court's word ends every debate, and the case shows why the Constitution never granted the second.

What you can do: read the first sentence of the Fourteenth Amendment alongside Lincoln's passage on Supreme Court decisions in his first inaugural address, and write down in one sentence who the Constitution says has the final word.