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.