The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions

Abstract

The Supreme Court's decision in Dred Scott v. Sandford is widely regarded as among the worst decisions it has ever made. In addition to embracing reviled substantive values, the decision deeply wounded the Court's status and authority. By embracing a theory of judicial supremacy that held that the Court alone could resolve all important constitutional disputes, however, the Court had been gradually moving toward such a debacle. An important Jeffersonian tradition criticized the Court for encouraging political actors to forego their own constitutional responsibilities. The dissenting opinion of Justice Benjamin Curtis suggested a more appropriate course for the Court, one that carved out a clear place for the exercise of judicial review but that recognized an important sphere of constitutional politics outside the judiciary.