Out of the Shadow: Roger Brooke Taney as Chief Justice

Abstract

Out of the Shadow: Roger Brooke Taney as Chief Justice James B. O’Hara Just as political historians rank Presidents,1 judicial historians rank Supreme Court Justices. There are a dozen or so rankings ofgreat Jus­ tices, some long, withmany names, some short, with only a few.2 John Marshall is always first on the lists, and invariably we find Oliver Wendell Holmes, Jr., the senior John Marshall Harlan, Louis D. Brandeis, and Joseph Story. Hugo L. Black, FelixFrankfurter, Charles Evans Hughes, EarlWarren, BenjaminN. Cardozo, and WilliamH. Taftusuallyrankhigh. More obscure or more controversial Justices like Robert H. Jackson, Joseph P. Bradley, Samuel Miller, Stephen J. Field, John A. Campbell, William Johnson, William O. Douglas, and the second John Marshall Harlan sometimes appear. But there is another name consistently found that jars the observer’s eye. It seems inappropriate, always accompaniedby an omi­ nous shadow. The name is Taney, and the shadow is Dred Scott. To us, accustomed to a long tradition of constitutionally guaranteed human rights, the Dred Scott decision, and more particularly Taney’s opinion in that case, seems bizarre. Not even a modem bigot would argue for a return to slavery as Taney understood it. Taney in retrospect looks himself like a bigot, a Simon Legree in judicial robes whose words are like lashes on a slave’s back. Why then do histori­ cal scholars rank him so high? Where is his greatness? The story of this extraordinarily complex man, who lived in an extraordinarily complex and veryperilous era, needs to be told again. Roger Brooke Taney, fifth ChiefJustice of the United States, was bom on March 17,1777, in a still-standing house on the family farm in Calvert County, Maryland, not far from the Chesapeake Bay.3 He was the second son of the six children ofMichael and MonicaBrooke Taney. Both the Taneys and the Brookes had been in Maryland for more than one hundred years at the time ofRoger’s birth. The family was landed gentry, living comfortably but not opulently, on crops ofcom and tobacco, sowed 22 JOURNAL 1998, VOL. I and reaped by slaves. Maryland was one of the few places in English America where one could be respectable and still be Catholic; the family was ofthat faith. Taney’s religion was a shaping factor in his life, and service to the church became a recurring feature as he ma­ tured. He was the first Roman Catholic to serve in a President’s Cabinet, and the first to serve on the Supreme Court.4 Taney was frail and sickly even as a child, but he excelled at swimming and riding, skills learned on the plantation and in the nearby waters. Like many children raised in rural areas ofthe day, his early education was sketchy. He studied for a while at a little schoolhouse some ten miles from his home, but wretched roads and bad weather often made that a hit-or-miss experience. Later, a live-in schoolmastertutored the Taney children; perhaps the schooling was assisted by a family library: Taney’s father had been educated by the Jesuits in Europe. At sixteen, the young man left for Carlisle, Pennsylvania, to study at Dickinson College, then very small with a faculty of three and a student body of fewer than one hundred. The single building was, in Taney’s words, “small and shabby,” and fronted “on a dirty alley.”5 Dickinson, with its strong Presbyterian roots, might seem a strange choice for a devout Catho­ lic family, but Taney flourished there. To the end ofhis life, he retained his carefully written student notes. And the brief biographical sketch he wrote about his early life shows great pride that he was chosen valedictorian by his classmates. Small though it was, Dickinson’s early alumni lists were formidable. At one point in his life, Taney served on the Court with Jus­ tice Robert Grier, a fellow alumnus. President James Buchanan was also a Dickinson gradu­ ate.6 After graduation, the young man took up residence in the state capital of Annapolis to read law under the direction ofJudge Jeremiah Chase, and four years later he was admitted to the Maryland Bar. He was at the...