Included among the Confederate statues whose removal has provided white supremacists with thin cover to parade hatred in the feeble guise of heritage have been several monuments to U.S. Chief Justice Roger Brooke Taney. Most remembered for his painfully racist and staunchly proslavery opinion in 1857’s Dred Scott v. Sandford, Taney is one of three Supreme Court Justices whom legal scholar Paul Finkelman considers in his forthcoming Supreme Injustice: Slavery in the Nation’s Highest Court. Placing Taney alongside Chief Justice John Marshall and Associate Justice Joseph Story, Finkelman documents how this trio—whom he calls the most important Supreme Court Justices before the Civil War—repeatedly upheld the institution of slavery.
From Finkelman:
These jurists almost always failed to consider liberty or justice in cases involving slavery and race. To the contrary, with only a few exceptions in their many years on the bench, they continuously strengthened slavery in the American constitutional order. They cast opposition to slavery as unpatriotic, undermined the possibility of a political solution to America’s “peculiar institution,” and helped set the stage for the final antebellum crisis that ultimately led to secession, the Civil War, and the death of some 630,000 young Americans. Out of that carnage came an end to slavery and what Abraham Lincoln called “a New Birth of Freedom.” But this outcome would surely have surprised these justices, and at least two of them—the two chief justices, John Marshall and Roger B. Taney—probably would have found this outcome outrageous and wrong. They certainly would have emphatically opposed the post-war constitutional amendments making blacks citizens of the United States and giving them the right to vote on the same basis as whites.
Taney, whom Finkelman calls “Slavery’s Great Chief Justice,” of course left no room for doubt as to his position. His assertion in his Dred Scott opinion that black Americans, even when free, “had no rights which the white man was bound to respect” shocked many Americans even in 1857. But, as Finkelman shows, this most memorable case was neither the first nor the last time Taney expressed the view that the U.S. Constitution simply didn’t apply to black people. In 1832, as Andrew Jackson’s attorney general, Taney told the president that blacks in the United States had only those rights which they were able to “enjoy” at the “sufferance” and “mercy” of whites, and that blacks, “even when free,” were a “degraded class” whose “privileges” were “accorded to them as a matter of kindness and benevolence rather than right.” Later, during the Civil War, Taney did all he could to obstruct Lincoln’s attempts to hold the Union together, and even drafted an opinion in anticipation of an opportunity to strike down the Emancipation Proclamation.
Supreme Injustice, which stems from material prepared for the prestigious Nathan I. Huggins Lectures, has origins in Finkelman’s realization that serious consideration of slavery is often avoided in discussions of the jurisprudence of Marshall and Story, and downplayed even in the case of Taney. The role of slavery in their private lives, too, is overlooked, though Marshall and Taney were lifelong slaveowners, and the former was personally involved in buying and selling significant numbers of human beings. “Slavery does not fit comfortably in the narrative of the Supreme Court,” writes Finkelman, “but slavery does not disappear just because scholars ignore it. Support for human bondage and persistent hostility to the rights of free blacks were important components of the Court’s jurisprudence from 1801 until the Civil War.”
He continues:
The United States Supreme Court was certainly not responsible for secession or the War. But it was responsible for helping to create and nurture a culture of hostility toward liberty and justice for all, and for constantly supporting slavery. Through their jurisprudence, these justices encouraged southerners to attempt to create their own nation, based on the proposition that all men are not created equal, and that all people are not entitled to life, liberty, and the pursuit of happiness.
As emboldened white supremacists rally around Confederate statues and declare intentions to create their own “ethno-state,” it’s as clear as ever that this history hasn’t gone anywhere. But monuments to the likes of Taney need to go.
