First It Was Taney

The New Republic recently published a long but incredibly illuminating essay on the Supreme Court.It deserves to be read in its entirety.

The author, Brynn Tannehill, compared the Roberts Court to past Courts that today are widely considered to have decided important cases wrongly–beginning with the Taney Court. In 1857, that Court decided  in Dred Scott that Scott was not a free man, that no Black person could be a citizen of the United States, and that Black people were not entitled to Constitutional protections. As Tannehill says, that decision doomed the country to civil war.

Worse, Taney’s Court effectively eliminated the rights of free states to prohibit slavery on their own territory– relying on the same sort of “originalist” logic used by Justice Alito in Dobbs v. Jackson.

Roger Taney was not the only Chief Justice to preside over a retrograde Supreme Court. Following the Civil War, the Court led by Chief Justice Morrison Waite, “delivered decision after decision that ended Reconstruction.”

In United States v. Reese, the court ruled 7–2 that “racially neutral” voter suppression measures such as poll taxes, literacy tests, and the grandfather clause were constitutional. In United States v. Cruikshank, the Waite court ruled 9–0 that the federal government had no right to arrest the people responsible for the Colfax Massacre, the 1873 Louisiana riot where dozens of Black militiamen were murdered by a white mob. The Waite court also decided unanimously in Minor v. Happersett that women do not have a constitutional right to vote.I

n Elk v. Wilkins, the Waite court ruled 7–2 that being born on U.S. soil did not grant citizenship to Native Americans. The court also upheld miscegenation laws 9–0 in the 1883 case Pace v. Alabama. That same year, a majority struck down the Civil Rights Act of 1875 in The Civil Rights Cases of 1883. Later, in 1896, under Chief Justice Melville Fuller, the Supreme Court enshrined segregation via Plessy v. Ferguson, under the rubric of states’ rights.

Ironically, these decisions were framed as protective of limited government and individual liberty–as Tannehill writes, “freedom in the abstract, but only in the abstract.”

As if to drive this point home, the Roberts court ruled in Shinn v. Ramirez that it doesn’t matter if a person is innocent based on the preponderance of the evidence; so long as procedure was followed, the state can still execute people. Justice in the abstract, and only in the abstract, all over again.

Then there’s the Roberts Court.

It struck down most of the Voting Rights Act . It permitted states to strip Native Americans of their right to vote using the pretext of preventing voter fraud.  Worst of all, the court recognized that partisan gerrymandering is inconsistent with democracy, but declined to do anything about it.

The Roberts Court also seems intent on eviscerating Jefferson’s wall between church and state. It keeps finding that Christian organizations have a right to government money, as well as a “freedom”  to discriminate against LGBTQ people, Jews, and others.

This is freedom in the abstract: Even if Jews and LGBTQ people were allowed to discriminate against Christians, it would have a negligible impact on Christians compared to Christians being permitted to discriminate against groups that make up much smaller percentages of the population. It is akin to saying Christians can only shop at Kroger, and Jews can only shop at Jewish-run businesses: The harm falls disproportionately on the minority groups.

Tannehill reviews several pending cases with potential to upend federalism:

But the real Dred Scott moment will be at hand when red states begin trying to extradite people from the blue states for the crime of getting abortions, providing abortions, or providing transition-related care to transgender people. Deep blue states have been creating haven and sanctuary laws to protect women, doctors, transgender people, and parents of trans youth. Both California and Massachusetts have passed sanctuary laws that would prevent people from being extradited for seeking abortions in their states. Given that eradicating abortion and eliminating health care for trans people have become the top social policy priorities for conservatives, the reaction from powerhouses like the Heritage Foundation has been swift: They see these blue-state moves as a direct threat to their agenda.

Eventually, the Supreme Court will have to decide, are people free once they leave a state like Texas? Or do they remain property of that state forever, even if they leave?

It’s entirely possible that this Court would follow Dred Scott and allow extradition. If so, officials in the “sanctuary” states would be under heavy pressure to refuse to comply.

At that point, federalism, and the Union, are dead, as states refuse to recognize the legitimacy of court decisions, and the comparisons with the Taney court are complete.

You really need to read the entire essay.


  1. I’m at a loss for words. The US is nothing but a train wreck and there doesn’t seem to be any way to stop it.

  2. I remember teaching students about the different ways judges approach the issue of deciding whether a law is constitutional. I game them examples of issues. But they didn’t seem to be understanding how to apply the framework to deciding cases. Then it suddenly occurred to me…they believed that if a law is bad policy (in their eyes of course), then the law must be unconstitutional. But those students were not alone. A lot of liberal leaning people seem to have that view also.

    It is okay, even preferable, for democratic institutions to decide policy issues. The democratic process is messy, even contradictory, but it is also cathartic. This is especially true when it comes to contentious, divisive issues. Having judges decide those policy issues via the guise of interpreting the Constitution or law often leaves an open wound on the body politic. Even the late great Justice Ginsburg criticized Roe v. Wade as being too premature…that legislatures in 1973 were working through the thorny issue of abortion and the Court should have allowed that process to play out. Roe was a policy decision that half the country did not accept, and would never accept in no small part because they didn’t have their say through the democratic process. Now with Dobbs, I am confident that the gaping wound left by Roe can finally be healed. I know that’s not a popular position on here. But again, the democratic process is ugly but at the end of the day it usually works and brings people together.

  3. Paul, you may be right. It seems some right-wing states and their politicians are engaging in stochastic terrorism as a political strategy. It is certainly ugly. I have linked an example of a home grown version of the results of the spread of this new terroristic malignancy of hate on our nation.

    Didn’t the January 6 attack on the Capitol and our Democratic process make the issue of letting this be decided democratically moot? Seems the Right does not believe in elections if they have a different opinion.

  4. Paul Ogden, If your “democratic process” had been allowed to “play” itself out blacks would still be riding in the back of the bus, not allowed to eat at lunch counters and definitely not allowed to vote. Some laws ARE bad policy, not because I see it that way, but because it is immoral and just plain wrong.

  5. The most egregious form of voter fraud is gerrymandering.

    As the bastardization of Christianity continues to exponentially increase, so does the exodus of people from organized religion.

    I plan to read the referenced article, but based upon today’s blog it seems to me that the Supreme Court has been a horrible weapon that white men created in order to maintain their power. Fairness and laws really don’t matter to the white male majority.

  6. “A house divided against itself cannot stand.” I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other. ”

    Abraham Lincoln’s 1858 speech explains in unapologetic clarity why the nation could not endure the continuing divide between slave and free states. It was a direct response to the Taney Court’s 1857 Dred Scott decision. Lincoln’s brutally honest observations are directly relevant to the present-day situations discussed here.

  7. I had to laugh at a piece on MSNBC in which Tannehill was interviewed. They were discussing the relative distance that the “Trump” Court has established between the members. The sense of collegiality is all but gone from SCOTUS. They mentioned an Amy Coney Barrett speech in which she maintained that we would all eventually understand that they were doing good law. I agree that they are doing good law – for the 16th century. Will they come to understand that things have changed? I doubt it.

  8. The democratic process Paul idolizes as our ultimate arbiter/healer is itself subject to capture by those who pretend to abide by its terms but who in reality have a planned outcome to whatever issue is up for adoption. It’s a matter of word play. Witness dictatorship sold by DeSantis as “freedom.” the legislative helpmate of ALEC, etc.

    I have always thought Taney and Dred Scott were the worst in American jurisprudence and never dreamed we would have an Alito and Dobbs experience at this late date, a Dobbs that ignored stare decisis and used the lame cover of “originalism” to burden the rights and lives of millions of already overburdened women while feeding the states righters in their quest to destroy federalism issue by issue, and which if successful, would result in effectively reversing Marbury v. Madison and removing the adjective United from the United States of America.

    It is past time for cooler heads to prevail over the extremism of today lest federalism is lost and we devolve into the chaos of 50 nation states few of whom can stand alone and the remainder may serve as colonies for the likes of China et al. Can’t happen here? I thought Dobbs couldn’t happen here, either, but I was wrong. I hope that I am wrong again in my prediction of just how far those who would rule or ruin will go to attain all power under the rubric of White Nationalism or any other such title averse to democracy.

  9. term limits in the courts,seems like an option,life long placements seem to make life long decisions and past decisions off the books until some noble org wants to slander most people and kick the rest until they see it thier way. using words and addressing as such,has only elimnated the average Joe/Jane to take the back seat in what is decided by robed christian men (yea right)in black. our constitution granted the people,majority,supposively to make a democracy for its line item BS and lawyers who have mastered a craft of agnotology over reality..seriously,corps are people and allowed to hold sway via money? we have a major ethics issue more than a glamor suit in front of the black robes of christain fate(circa2022) instead of having a democracy that is run by the people,it only become a state of selected privledge.

  10. Agnotology? Selected privilege”?
    Jack, you exceed yourself!

    My nominee for worst decision is making corporations people and hiding dark money.

    ALEC is a close second. Legislative capture is its bastard child.

    George Santos needs jail. Preferably in Brazil.

  11. There’s a whole slew of people who need to be jailed for the good of society. If they had been jailed when they first deserved to be, George Santos would never have been able to think he could lie his way into Congress.

  12. Read Jon Meacham new best seller
    “And There Was Light” and David Silver “Lincoln ‘s Supreme Court” on how President Lincoln overcame Taney et al
    And how Pres Biden and his successor can undo the decisions you addressed
    Of Robert’s Court over time

  13. Andrew Jackson had a solution. “Mr. Marshall made his decision. Now let him enforce it”
    Most folks do not see all of this as an international tide to destroy our constitutional republic and other nation’s. Conspiracy, movements or just evolution: The turning of this tide has no nice clean seawall. Lincoln would have suspended the writ along the border and had the governors of Texas and Florida arrested for violation of federal kidnapping and human trafficing laws. The military would replace local contol over immigration. And militia and domestic terrorists would be held without charge under suspension of the writ. All over stepping could be solved by later court review. But the assault upon the republic would be over for a few decades. Liberal acquiesence is as as much at fault as fascist idealogy for the current state of things. Causes crises yes. But would not be the impending violent crisis. The key to the nation’s survival is not extremes to which the pendulum swings. But in Washington’s example if exercising power necessary to secure the national foundation, put down the Whiskey Rebellion, and walked away from poser for life. With Lincoln I would include RFK with someone who would have done the same.

  14. When courts decide the way “I” believe, they are principled followers of the REAL meaning of the constitution.


    Speaking that word, there is the concept that was introduced called “inalienable rights”. Some believe that this means “voted on by state legislatures”; others believe that NOBODY can mess with those.

    Since the “founders” thought that only white, male, Christian, property owners were true citizens, we could only change that by amending the Constitution, which we did (mostly), but that was mostly to guarantee that the Roberts court didn’t decide that being a citizen of the county where you are born and live is no longer a right. Also, because the “founders” didn’t recognize every right that exists, and admitted as much, we have to recognize that perhaps there are rights that you may not like, for instance, bodily autonomy. As society evolves, so does their definition of rights. If you close the book, you have a dead culture.

    That’s why I never liked Paul’s hero Bork. He believed that he, and only he, knew the real truth, and that the law meant whatever he thought it meant. If he would have been around to be Trump’s AG, we would be talking about President Trump.

  15. This may sound repetitive, because it probably is, but the Koch brothers, McConnell and the sickening
    impact of a Trump presidency, and the 3 other recent GOP presidencies have taken us to this horrid
    SCOTUS moment.
    It is going to be Taney all over again, and again, and again.
    Any collegiality that might have existed on SCOTUS, in recent memory has fallen to the same toxic
    impact of those referred to above.

  16. Society is the rule of the most influential. Democracy is an imperfect means by which at least raise the bar as much as possible for the amount of pre-power influence required to gain a role governing.

    Of course elections always have the consequence of giving “popular” politicians power.

    Parties are “unions” for politicians and like all unions they put the power of organization behind their politicians.

    Societies who had the foresight required, enshrined the contract between the governed and the government as a constitution that, like currency, everyone assumed was in force because everyone had faith that it was.

    Ever since our birth as a nation, politicians, like criminals vs the law, have been tying to find means to bend our Constitution to their will to increase their personal influence.

    People like Putin and Trump decided that if the limits imposed by the Constitution were nothing stronger that the faith that people had that it’s power was absolute, then great influence could be had by “selling” to the people that their contract with government was a matter of interpretation and if read a certain way would allow certain groups to redefine the nature of the country to impose their culture on the rest through the law rather than “selling” it for voluntary adoption as the country’s culture.

    Ruthlessness trumps faith in a document by offering some people outsized cultural influence if they go along.

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