Notorious U.S. Supreme Court decision is revisited

Dred Scott.

You don’t have to be a lawyer or historian to have that name conjure up feelings of horror and injustice.

Scott was the American-born slave who lent his name to Dred Scott v. Sandford, the legal case leading to an infamous 1857 decision by the U.S. Supreme Court, generally regarded as a legal and moral low point for American jurisprudence.

Among other things, the decision held that no black American, slave or free, was a U.S. citizen, or had rights protected by the Constitution. Its harsh language about “that unfortunate race,” and its uncompromising stand in favor of slavery, drew the final battle lines for the Civil War, which erupted only four years later.

The Dred Scott decision has had legal and cultural reverberations in the 15 decades since, continuing a debate about the nature of citizenship that echoes today. So much so that Harvard Law School (HLS) marked the decision’s 150th anniversary with a conference April 6 and 7.

“We are at once so far from, and so close to, that moment” in 1857, said Civil War historian Drew G. Faust, dean of the Radcliffe Institute for Advanced Study, Lincoln Professor of History, and president-elect of Harvard University. In remarks opening the event, Faust called the Dred Scott decision “of central importance to the dissolution of the Union” as well as a vivid marker of “the burden of Southern history.”

Within dozens of pages of inflammatory language, the decision — penned by Chief Justice Roger B. Taney —held that neither Congress nor any territorial governments had the right to ban slavery in the territories. Moreover, Dred Scott — who had lived for long periods of time in the free state of Illinois and the free Wisconsin Territory — was still a slave, an object of property, and had no right to sue in a court of law.

“It is the nation’s most infamous legal decision, the essence of bad law,” said HLS Dean Elena Kagan, Charles Hamilton Houston Professor of Law.

But a conference on the decision has modern merit, she said, since it looks at “the times that produced Dred Scott, and the times Dred Scott created.”

A conference on the decision “couldn’t be more timely,” said Harvard law professor Charles J. Ogletree Jr., founding and executive director of the Charles Hamilton Houston Institute for Race and Justice, organizers of the event. In the light of continuing racial inequalities, he said, and turmoil over immigration, the debate over citizenship is still current. The conference kicks off a yearlong project on citizenship at the institute.

The Dred Scott decision came at the time of “a clash of two absolutes,” said Ogletree, describing a nation 150 years ago that struggled with the fact of American slavery and the ideal of American equality.

The two-day conference in the Ames Courtroom in HLS’s Austin Hall was in part a kind of time machine, in which legal scholars, cultural historians, and experts in literature re-created 1857 for several hundred holiday-weekend attendees.

The event also touched on the era of “de facto slavery” of black Americans that continued in the South after the Civil War. There were glimpses too of a later, still grim, racial reality in the United States.

One April 7 panel delved into the 1921 Tulsa race riot, which killed 300, injured 800, and destroyed 35 city blocks of Tulsa’s prosperous Greenwood neighborhood, known then as “the Negro’s Wall Street.” (Two race riot survivors, 104-year-old Otis Clark, and 91-year-old Wess Young, were on hand. Ogletree heads a legal team seeking compensation for survivors.)

Another April 7 panel looked back at Mendez v. Westminster, the 1947 court case that challenged racial segregation of Mexican-American students in California schools. It set the legal stage for Brown v. Board of Education, the 1954 ruling by the U.S. Supreme Court that banned separate public schools for whites and blacks.

But the event’s central question stayed in 1857: Was the Dred Scott decision inevitable?

A dual consensus emerged. The decision was probably inevitable historically, the product of a post-Constitution era in which slavery became increasingly entrenched in civil, economic, and legal society.

But the Dred Scott decision was not inevitable in legal terms. The Supreme Court could have refused to accept the case, for one, knowing that it opened up such a charged issue.

“If we get dismissed for jurisdiction, we avoid the Civil War,” said former White House special prosecutor Kenneth W. Starr, now dean of the law school at Pepperdine University. He was one of the “expert witnesses” in an afternoon mock court reconsideration of the decision April 7.

Or the Supreme Court could have staked out its decision on narrow legal grounds, dismissing in two pages Dred Scott’s right to sue. (He lived in Missouri, which had never recognized black Americans as citizens.)

But another consensus emerged over two days: that the language of Taney’s opinion — considered the majority decision — was so full of racial invective that it was by no means necessary, or inevitable. (Taney, for instance, famously wrote in the March 6, 1857, opinion that black Americans were “so far inferior, that they had no rights which the white man was bound to respect.”)

The egregious language was noted by the lawyers on hand, by the historians, and by the 10 federal judges. They included the Honorable Stephen G. Breyer J.D. ’64 associate justice of the U.S. Supreme Court, who presided over the mock court reconsideration.

“Reason is the slave of passion,” said Breyer, quoting a common sentiment. “If you read [Taney’s opinion], it sure is.”

He said that Alexis de Tocqueville, writing in 1840, brilliantly summed up Americans as optimistic and cooperative — but also identified the two hurdles that could wreck their nation: The twin quandaries of what to do about the American Indians and what to do about slavery.

“A vast number of major institutions are infected with slavery” by 1857, said Breyer, “and they can’t get away from it.” The Dred Scott decision was the fuse that lit the final cataclysmic bomb that split the nation.

The issue of slavery wasn’t always so explosive. In 1787, the year the Constitution was ratified, six of 13 states allowed blacks to vote. But by 1857, only five of 31 states allowed it.

“Blacks had lost power,” not gained it over those years, said Paul Finkelman, a professor at Albany Law School, and one of four lawyers and expert witnesses who argued at the mock deliberation that the Dred Scott decision was inevitable. The Constitution never uses the word “slavery,” he said, but nonetheless “protected slavery” with its language about “persons owing service or labor.”

John Stauffer, professor of English and American literature and language and professor of African and African American Studies at Harvard, played the part of the abolitionist ex-slave Frederick Douglass. He agreed that the Dred Scott decision was historically inevitable — but that it was “constitutionally wrong,” based in part on the Constitution’s foundational document, the Declaration of Independence.

Yale law professor Akhil Reed Amar agreed, but went further, asserting that the Constitution “contained within it the seeds of compromise,” and that the Dred Scott decision was not inevitable.

Even in legal terms that were current in 1857, the Dred Scott decision was not inevitable, argued visiting Harvard law professor Sarah H. Cleveland. She said that a cascade of international legal precedents — some dating back centuries — held that slavery, or once being a slave, or a person’s color, did not preclude citizenship. (In 1857, international legal standards had more currency in U.S. jurisprudence than they do today.)

What is more, said Cleveland, if you follow English legal precedent — including the 1772 Somersett’s case — Scott’s long residences in slave-free sections of the United States would have automatically made him a free man.

As Starr said of Dred Scott later, “He became a free man when he breathed the free air of Illinois.”

Not so, said Duke professor of law Erwin S. Chemerinsky, who argued that the Dred Scott decision was both historically and legally inevitable. “The [Constitution’s] fugitive slave clause has to trump international norms,” making Dred Scott merely property that could be moved, unchanged, from one place to another, he said. “The language in Chief Justice Taney’s opinion was not inevitable. The decision was.”

At the end of the two days, the audience in Austin Hall, and the one watching on the Internet, got to cast votes on whether the Dred Scott decision was inevitable. No, it wasn’t, said 106; another 95 said the decision — given the time and the state of the law then — couldn’t be helped.