The Worst Supreme Court Decision Ever?

Dred Scott, in a nineteenth-century painting.

A century and a half ago today, on March 6, 1857, the U.S. Supreme Court delivered its decision in the case of Dred Scott v. John F. A. Sandford. Scott was a Missouri slave, and Sanford (whose last name was misspelled in the court papers) was a New York businessman who had custody of some family property, including Scott and his wife and two daughters. Back in 1846 Scott (along with his family) had sued for freedom on the grounds that his previous owner, an Army surgeon, had lived in the state of Illinois and the territory of Wisconsin for several years. Slavery was illegal in both places.

The case had been decided in Scott’s favor in 1850, but two years later Missouri’s supreme court had reversed the decision. If the matter had rested there, the result, however unfair, would have caused little controversy. Since the suit’s filing, however, the Mexican War and its aftermath had brought slavery to the forefront of the national debate, and the wealthy abolitionists who were financing Scott’s suit decided to pursue an appeal in federal court. They could easily have bought Scott and his family and emancipated them, but, like many present-day activists, they were hoping for a judicial solution to a political problem.

The Supreme Court tried to sidestep the controversy by resorting to a Catch-22. Scott had filed his claim as a citizen of Missouri, but since he was a slave, he was not entitled to that status. The suit would not be valid unless he first gained citizenship. In other words, to sue for freedom in federal court, he had to be free already. Dodging the central issue in this way would buy the Supreme Court some time and perhaps allow the issues to be solved by other means.

However, the two strongest antislavery justices declined to go along with the ruling and insisted on writing dissents calling for Scott to be freed. Once they had made their intentions clear, the other justices decided they had to refute them. Stubbornness on both sides opened up an enormous can of worms, as a case that could have been dismissed on technical grounds turned into an excuse for all the justices to air their views of property, slavery, freedom, and the federal government’s role in it all.

The court’s decision was as splintered as any in its history, with each justice writing his own opinion. Six of the nine agreed that a slave could not be a citizen. Three went on, unnecessarily, to say that even a freed slave could not be a citizen, while two dissented and the rest were silent on this question. Yet the feuding justices did not stop even there.

The decision of the chief justice, Roger Taney, which was considered that of the court, sweepingly declared Congress’s prohibition of slavery in territories north of 36° 30’, enacted in 1820 as part of the Missouri Compromise, to be unconstitutional. The federal government, wrote Taney, had no such jurisdiction; it could not prohibit any citizen from bringing his property, including slaves, into any federal territories or enjoying its use there. Only a properly constituted state government could ban slavery. Scott v. Sandford was the first time since Marbury v. Madison (1803) that the Supreme Court had struck down a federal law.

In fairness to Taney, it should be noted that the phrase most often quoted from his decision is usually misunderstood. In seeking to interpret the Constitution according to what its framers had in mind, Taney said that they had considered Africans as “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect.” Taney did not mean that in 1857 the black man still had no rights, just that the Constitution had been written 70 years earlier with that understanding. Nonetheless, “no rights which the white man was bound to respect” was the sound bite that got repeated across the country in the decision’s aftermath and is still repeated to this day.

The concurring justices hoped that their decision would settle the vexing question of slavery in the territories once and for all. It didn’t. Most Northerners greeted the decision with outrage. Bad enough, they thought, that the court had rejected Scott’s claim, but by denying Congress any right to regulate slavery in the territories, it had swept away the carefully crafted compromises that were holding the nation together, however tenuously. Some felt it was only a matter of time before the court went further and imposed a similar restriction on state governments.

Ever since the Revolution, the free states and slave states had tried to coexist peacefully, accepting their differences and respecting each other’s laws. While it was an appealing idea, the two systems could not be kept completely separate, and where they overlapped there was friction. Free black seamen landing in Southern ports were subject to arrest if they left their ships, despite federal maritime laws to the contrary. Many Northerners were dismayed that Congress allowed slavery in the District of Columbia, a federal territory (though slave sales were prohibited there in 1850 as a bone tossed to unappreciative slavery opponents).

Most troublesome of all had been the issue of slaves who escaped into free states, often with the help of abolitionists. Slave owners considered the practice no better than thievery, while most Northerners resented the forcible use of their police and courts to restore human beings to bondage. Yet even fugitive slaves would not have brought the union down by themselves; there simply weren’t enough of them to cause such a drastic step.

When it came to slavery in the territories, however, the live-and-let-live principle was stretched past its breaking point. It’s hard to draw a direct connection between the Dred Scott decision and the outbreak of war four years later, but by encouraging Southerners to assert their power and preventing Congress from finessing this extremely contentious issue, the Dred Scott decision hardened positions pro and con and made a sectional conflict much more difficult to avoid. For example, Stephen Douglas’s doctrine of popular sovereignty—letting settlers decide whether to permit slavery in a territory—might or might not have defused the issue, but the Dred Scott decision made it moot.

For all the upheaval it created nationally, the decision made little difference to Scott, who since 1854 had been living in St. Louis as virtually a free man. His owner, Irene Sanford Emerson (John Sanford’s sister, and the Army surgeon’s widow), had married an abolitionist who maintained ownership of Scott only so the suit could be pursued. (Sanford was given nominal custody so that the plaintiff and defendant would be residents of different states, a necessity for the federal suit.) In any event, Scott and his family were emancipated shortly after the decision was announced. Dred Scott become something of a local celebrity but did not enjoy his status for long, dying of tuberculosis on September 17, 1858. No one knows for sure what became of his wife and daughters.

—Frederic D. Schwarz is a senior editor of American Heritage magazine.