On this day in 1857, Dred Scott v Sandford was decided incorrectly. In a 7-2 decision, it found that African Americans — even free ones — were not citizens and therefore had no standing to sue in federal court. Dred Scott was a slave who had been taken by his owners to free states — that is: states where slavery was illegal. Dred Scott argued that once in a free state, he ought to be able to walk away. That’s a good argument. That’s why the Court decided to claim that African Americans just couldn’t be citizens.
In dissent, Justice John McLean noted that there was nothing in the Constitution that said that African Americans couldn’t be citizens. He noted that in five of the states at the time the Constitution was ratified, black men could, in fact, vote — indicating that they were, in fact, citizens. What’s more, there had been a case two decades earlier, Marie Louise v Marot, which was basically the Dred Scott case, but before the Louisiana Supreme Court. And it was found the opposite way.
The great villain in all of this is Supreme Court Chief Justice Roger Taney — usually number one on the list of worst Chief Justices in history. And he didn’t stop at simply declaring all African Americans ineligible for citizenship. He did what the Roberts Court did in Citizens United v FEC — greatly expanding the scope of the case. In Dred Scott, he greatly expanded the power of slave states and indirectly hastened the Civil War. The other dissenting opinion by Benjamin Robbins Curtis was basically that if the Court had no jurisdiction, then it should shut up about territorial matters. That’s a good point, although hardly the morally and legally clear argument that McLean had made.
(Let me just note something that I think is telling. When Sarah Palin was asked what Supreme Court decisions she disagreed with besides Roe v Wade, she had no answer. Neither Dred Scott nor Plessy v Ferguson (“separate but equal”) came to her mind. This is the very definition of white privilege. Over 600,000 people died in the Civil War — our deadliest war for obvious reasons. But she just wasn’t interested in that. There were zygotes that had to be saved!)
I think today, Dred Scott v Sandford is generally considered the worst Supreme Court decision in history. And that’s saying a lot. Because as an institution, it has generally represented the most conservative impulses — stopping the country whenever it tried to expand freedom and empower the powerless. Taney and Scalia and Roberts, for that matter, are not exceptions; they are the rule.