Roger Taney Overreaches
I’m teaching American Federalism this semester, and last week was Roger Taney week. My students read excerpts from Prigg v. Pennsylvania (1842), Dred Scott v. Sandford (1856), and Ableman v. Booth (1858). Taney is widely regarded as the greatest villain in American Supreme Court history. In Dred Scott, he famously declared that blacks were not citizens of the United States and could never achieve citizenship, and that Congress’s attempt to keep the northern territories unsmirched by slavery was unconstitutional. Although Taney had manumitted his own slaves, he supported the institution of slavery throughout his life and achieved appointment to the Chief Justiceship through his close relationship with Andrew Jackson, himself a populist and no particular friend of people of color.
An institutionalist perspective, however, leads to a slightly different reading of Taney and his actions. As my students learned (or perhaps remembered), Taney faced a daunting political environment. Congress had repeatedly engineered compromises to address the problem of slavery, but these compromises had become increasingly difficult to achieve as the political struggle over expanding slavery worsened. In 1850, Congress achieved what many believed to be a comprehensive compromise, but the elites’ agreement quickly broke down over enforcement of the new federal Fugitive Slave Act, which many northern states believed took major steps toward making slavery a national institution. Ineffectual presidential leadership reached its nadir in the administration of James Buchanan, elected with only 45% of the popular vote.
Taney, recognizing Congress’s incapacity to lead and Buchanan’s weakness, bet on the authority and legitimacy of the Court to quell the crisis. He issued a bold ruling that sought to resolve all of the vexed issues from his institutional position as Chief Justice. While his discussion of citizenship and his rejection of the Missouri Compromise did not garner majority support, he easily built a majority around rejecting Scott’s claim of freedom for himself and his family. Two years later, in Ableman, he and his Court harshly reprimanded Wisconsin for its attempt to circumvent the Fugitive Slave Act. The Court endorsed a triumphal vision of national power – as long as that national power was to be used to support and enforce slave owners’ state-guaranteed property rights.
We know how the story ends. Taney and a majority of the Court were ideologically far out of step with the rest of the country. As Mark Graber has shown, constitutional structure allowed southern slaveholders who wanted to expand slaveholding territory to gain disproportionate influence and control over national institutions. This included the Supreme Court. Thus, when Taney and his brethren attempted to quell agitation against slavery’s expansion through constitutional fiat, resistance rose rather than collapsing, contributing to an energized, unified, angry, and mobilized opposition party. An election took place, resulting in the election of a president whom those demanding the advance of slavery refused to accept or trust. This president, though he did not garner a majority of popular votes cast, was empowered by partisan victories in the House and the Senate.
One result was war. Another result, described by Justin Crowe, was an astonishing remaking of the federal judiciary, transforming it within a very short period from a regime-reinforcing and –strengthening tool of the Democratic Party to a staunchly Republican institution.
What do we learn from this?
The Lesson for John Roberts and His Court
John Roberts, the current Chief Justice, has shown evidence that his institutional role as Chief drives some of what he does. Conservatives were perplexed and dismayed by his ruling in National Federation of Independent Business v. Sebelius, which upheld portions of the ACA (Obamacare). Nonetheless, in Justice Kennedy’s last term on the Court, the Chief Justice showed that he was willing to side with conservatives in controversial 5-4 decisions. Under his leadership, the Court has defended private gun owners’ rights, struck down limits on independent expenditures in political campaigns, curtailed the Voting Rights Act, exempted closely held corporations from the responsibility to provide contraceptive coverage to their employees on the basis of religious freedom, and permitted President Trump’s travel ban to stand. With Gorsuch and Kavanaugh now on the bench, the conservative bent of the Court is confirmed – and the five Justices that make up this bloc are conservative indeed. As Steven Mazie observes, Justice Alito is now the fourth most conservative member of the Court.
How will Roberts and his brethren (yes, they’re all men) wield this power? They face a choice. They are able, should they choose to do so, to forge boldly forward and smash the remnants of the New Deal and Great Society orders. They can sweep away personal liberties (other than those involving property and religion) protected under due process, strip back protections for equality, make the exclusionary rule into ragged Swiss cheese, and sharply curb or forestall federal regulatory authority on a host of issues. They can also, like Taney and his Court, expand the rights they prefer. Taney’s Court doubled and tripled down on slaveowners’ property rights to curtail northern states’ power to thwart slavery, while empowering the southern states’ laws and principles to expand nation-wide. Roberts’ Court can expand religious freedom and property rights to limit access to abortion and contraception and the broader implementation of rights associated with same-sex marriage.
The Roberts Court might, however, proceed more cautiously, using a scalpel rather than a cleaver. Liberals have mobilized for years by warning that Roe v. Wade is under threat, but access to abortion has been substantially reduced without a formal reversal. While most landmarks protecting civil rights remain intact, the federal courts have drastically constricted access by reworking procedural rules. As Chief Justice Roberts appears to be aware of the Court’s institutional history, such a path looks more likely for him, and if he opts to move in this direction, look for him to situate himself actively and consciously as a swing Justice, collaborating where he can with Justices Kagan and Breyer.
Lessons for the Democrats
What if the Democrats, like the Republicans in the 1860s, can unify their party and achieve electoral victories? The victories would have to be large indeed to provide opportunities for significant restructuring of the federal courts. Despite the grumblings about investigations and impeachments, all of the elite political actors engaging this conversation are aware of the need for a 2/3 vote by the Senate to achieve removal, whether it is contemplated with respect to Justice Kavanaugh or Trump himself. Electoral victories in 2018, however, if followed by significant victories in 2020, could lay the groundwork for federal court reform. Proposals have been floating around for the last few years even before the current crisis.
How, though, can the Democrats engage reform, even if they achieve major electoral victories, in a way that non-Democrats will accept as legitimate? The current political climate resembles the period before the Civil War in that each provocative step by one set of political actors elicits a more provocative response. Change seems necessary but impossible to achieve in the current atmosphere of distrust and partisan acrimony.
Ultimately, the Democrats and Republicans of the post-bellum era achieved peace with each other, and the Democrats were able to regain political power as the nation returned to something like normal politics. Full national reconciliation was a process that achieved a major milestone in the Spanish American War, billed in part as a new and unified national adventure. The apogee of reconciliation was the fiftieth anniversary of the Battle of Gettysburg, celebrated by President Wilson through representatives of the Union and the Confederacy. All that was necessary was for the bitterly divided, antagonistic whites on both sides of the struggle to agree that black rights and interests could be sacrificed to the greater good of quelling conflict and achieving reconciliation.
If we take history seriously, it looks like there are no easy answers, and we face real risks of things going terribly wrong. I’d like to close with something cheery and hopeful, but the best I can do is to remind us all that Hugo Black became an enormously controversial nominee to the Court when his membership in the Ku Klux Klan was revealed just as he was nearing easy confirmation. Pressed by Roosevelt, Black brazened it out and achieved confirmation, much to the dismay of many who feared having a man of his lawless background making law for the entire country. Ultimately, most constitutional historians believe that it didn’t end up working out all that badly. While the new additions to the Supreme Court look unlikely to provide any surprises, I’d be happy to be wrong about this. Unfortunately, remembering history and institutional constraints pushes more toward a best case scenario of a calculated erosion of the remaining foundations of the New Deal and Great Society orders, and a Democratic response that, even if successful, is likely ultimately to compromise in order to achieve reconciliation.