Chief Justice Taney and the Shadow of Dred Scott

Abstract

Chief Justice Taney and the Shadow of Dred Scott Robert L. Stern Editor’s Note: This article was originally published as a book review in the Arizona Law Review in 1975. The Taney Period has been probably the least known period in our national judicial history. It was the time in which the controversy over slaRoger Brooke Taney, fifth Chief Justice of the United States, succeeded John Marshall and served as Chief Justice from 1836-1864. very came to affect a large part of the Supreme Court’s work, even in seemingly unrelated areas, culminating in the thunderbolt of Dred Scott v. Sandford.1 That decision sappedthe Court’s pres­ tige and authority, at least in the North, until after the Civil War. The opinion in the Dred Scott Case, written by Chief Justice Roger B. Taney, put ChiefJustice Taney into disrepute during the next century of Supreme Court history. Two excellentbook-lengthbiographicalworks about Chief Justice Taney have been published: RogerB. Taney, 1935, bythe late Carl B. Swisher, and The Taney Period, 1836-64, also by Profes­ sor Swisher, in Volume V, 1974, of the Oliver Wendell Holmes Devise History ofthe Supreme Court of the United States, edited by Professor Paul A. Freund. Those works will enable a reader to appraisethe contributionofChiefJustice Taney to the Court andthe nation. Creditformuch ofthe data in this article goes to Professor Swisher, whose writings, as I have stated in my review of his book on The Taney Period, are a magnificent contributionto American history, notjustto legal history. The Justices of the Taney Period Ifmodem lawyers areasked-andI have asked a number of them—whether they can identify members ofthe Court during the middle third of the lastcentury, the almostuniform answeris “no” 40 JOURNAL 1992 as to all except Taney himselfand Justice Story. Story, who sat from 1812 to 1845 and who is betterknown fortreatises on a numberofsubjects on which he lectured at the Harvard Law School than for his judicial opinions, was a holdover from the Marshall regime. Few recall or have ever heard of Justices Smith Thompson, John McLean, HenryBaldwin, James M. Wayne, Philip P. Barbour, John Catron, John McKinley, Peter V. Daniel, SamuelNelson, Levi Woodbury, Rob­ ert Grier, Benjamin R. Curtis, John A. Campbell, and Nathan Clifford. The four Lincoln appoin­ tees in 1862 and 1863—Swayne, Davis, Miller, and Field—are primarily associatedwith the postCivil War period during which Miller and Field, in particular, played prominent though different roles. It is not surprising to learn that Supreme Court appointments during those years reflected the policies of the presidents. All but one of the Justices appointed during the pre-1862 Taney period were chosen by Democratic presidents beginning with Jackson. Since the Justices spent the major portion of their time trying cases on circuit, it was obviously reasonable to assign This log shows the mileage the Justices on the Taney Court traveled between Circuit assignments and the Court. Justices to the areas in which they lived. Thus, appointments were largelytreated as belonging to a particular circuit, and Congress, which was also controlled by the Democrats, determined the geo­ graphical boundaries of the circuits. Perhaps because of this, five of the nine circuits2 were composed of slave states, the eleven states that seceded and the border states, and were filled by Justices from Maryland, Vir­ ginia, Georgia, Alabama, and Tennessee. In­ deed, Congress was slow to create any circuits for the newer states west of Ohio. And except for Justice Curtis of Massachusetts, appointed by Whig President Fillmore in 1851, even those appointed from the Northern circuits were cho­ sen largely because of their known sympathy with Southern positions. Thus, after Story’s death, only Justice McLean from Ohio, appointed by Jackson in 1830 before the slavery issue came to the fore, and Justice Curtis, who served from 1851 to 1857, repre­ sented even a moderateNorthern viewpoint. This changed, of course, with Lincoln’s four appoint­ ments in 1862 and 1863 and his selection ofChief Justice Chase as Taney’s successor in 1864. It was doubtless not by happenstance that the first president from the Midwest appointed Justices from Ohio (Swayne and Chase), Iowa (Miller), Illinois (Davis), and California (Field). Samuel Miller, who...