Supreme Injustice: Slavery in the Nation's Highest Court by Paul Finkelman

Abstract

Reviewed by: Supreme Injustice: Slavery in the Nation's Highest Court by Paul Finkelman Andrew T. Fede (bio) Supreme Injustice: Slavery in the Nation's Highest Court. By Paul Finkelman. (Cambridge: Harvard University Press, 2018. Pp. 273. $35.00 cloth) Paul Finkelman—one of United States slavery law's leading scholars—evaluates the lives and jurisprudence of three antebellum Supreme Court Justices, Chief Justices John Marshall and Roger B. Taney and Associate Justice Joseph Story. He concludes that these leading jurists, unlike some of their contemporaries, failed to "read the Constitution with an eye toward liberty" and thus failed to prevent slavery's expansion, failed to suppress the African slave trade, and failed "to protect free Blacks." All three instead "leaned toward slavery and discrimination—and, in doing so, were supremely unjust." (p. 10). Finkelman first analyzes the United States Constitution's provisions that protected the enslavers' interests. Direct protections included the fugitive slave clause. Indirect protections incorporated the two provisions authorizing the national government to suppress insurrections and domestic violence, which Finkelman notes included "slave rebellions." (p. 17). Although endorsing William Lloyd Garrison's interpretation of the Constitution as a pro-slavery document, Finkelman sketches alternative arguments that judges could have used "to expand freedom, sometimes protect Black liberty, and even hem in slavery," if the Court had not been "a constant friend of slavery and almost never a friend of liberty." (pp. 21, 25). Finkelman's two chapters on Marshall express his disappointment with this great chief justice who, instead of employing his celebrated [End Page 351] judicial skill and creativity to advance liberty over enslavement, favored enslavers' property rights over liberty. Finkelman suggests that one reason may lie in his newly discovered evidence demonstrating that biographers have understated both the extent of Marshall's slaveholding and his involvement in the buying and selling of enslaved people. Although the Marshall court ruled in favor of claims to freedom in five of fourteen cases, Finkelman notes that Marshall wrote opinions only in cases in which enslaved litigants lost their appeals. Similarly, when this court enforced the federal African slave trade prohibitions, Finkelman states that Marshall never wrote an opinion punishing slave traders. Thus, Marshall's slavery law opinions were "as we might expect from a slaveholding Virginian." (p. 108). Finkelman's chapter on Story expresses possibly even greater disappointment because Story came to the Supreme Court "with a New Englander's hostility to slavery." (p. 112). This frustration reaches its apex in Finkelman's discussion of Story's opinion in Prigg v. Pennsylvania (1842), which enforced the fugitive slave clause. Finkelman rejects the notion that Prigg was a "triumph of freedom" and denounces this decision as "a triumph of slavery and a disaster for free Blacks, and the author of the opinion knew this." (p. 168). He attributes Story's insensitivity to this decision's effect on the rights of those who were allegedly escaped slaves to his "profound constitutional nationalism and his fear of southern nullificationists." (p. 169). Taney's infamous opinion in Dred Scott v. Sandford (1857) is at the center of Finkelman's fifth chapter tellingly titled: "Roger B. Taney: Slavery's Great Chief Justice." (p. 172). Finkelman demonstrates how Taney foreshadowed at least in part his Dred Scott opinion in both his pre-court career and his earlier Supreme Court opinions. He also discusses the decision's effect on Taney's standing in the decision's immediate aftermath, in the Progressive and New Deal eras, and even today. Finkelman reconciles Taney's jurisdictional flip-flops between "states' rights and federal supremacy" by describing Taney's "larger jurisprudential goal of protecting slavery and the South whenever he could" (p. 212). [End Page 352] Supreme Injustice is part of a necessary and ongoing reconsideration of these and other pre-Civil War jurists' contributions to slavery law, which is an essential component of an understanding of slavery's place in the nation's legal, social, economic, political, intellectual, and religious history. Andrew T. Fede ANDREW T. FEDE is a lawyer in Hackensack, New Jersey, and an adjunct professor at Montclair State University, Upper Montclair. He is the author of three books on slavery law and many articles and...