Six of the seven justices in the majority were Democratic appointments. The one who wasn’t, Samuel Nelson, was nominated by John Tyler, who was a Democrat before running on the Whig ticket with William Henry Harrison. Five of the justices were appointed by slave owners. At the time of the ruling, four of the justices were slave owners. And the chief justice, Roger Taney, was a strong Democratic partisan who was in close communication with James Buchanan, the incoming Democratic president, in the weeks before he issued the court’s ruling in 1857. Buchanan, in fact, had written to some of the justices urging them to issue a broad and comprehensive ruling that would settle the legal status of all Black Americans.
The Supreme Court, critics of the ruling said, was not trying to faithfully interpret the Constitution as much as it was acting on behalf of the so-called Slave Power, an alleged conspiracy of interests determined to take slavery national. The court, wrote a committee of the New York State Assembly in its report on the Dred Scott decision, was determined to “bring slavery within our borders, against our will, with all its unhallowed, demoralizing and blighted influences.”
The Supreme Court did not have the political legitimacy to issue a ruling as broad and potentially far-reaching as Dred Scott, and the result was to mobilize a large segment of the public against the court. Abraham Lincoln spoke for many in his first inaugural address when he took aim at the pretense of the Taney court to decide for the nation: “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.”
As much as ours is a dire moment for the future of the American republic, we can at least rest assured that we aren’t living through 1857 or 1860 or 1861. Santayana notwithstanding, history does not actually repeat itself. But this Supreme Court — the Roberts court — is playing its own version of the dangerous game that brought the Taney court to ruin. It is acting as if the public must obey its dictates. It is acting as if its legitimacy is incidental to its power. It is acting as if it cannot be touched or brought to heel.
The Supreme Court is making a bet, in other words, that it is truly unaccountable.
