The Author Of The Dred Scott Decision Still Has A Place Of Honor At SCOTUS

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Kevin Daley Supreme Court correspondent
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Though statues of former Chief Justice Roger Taney have been removed from prominent perches around the country in the aftermath of white supremacist violence in Charlottesville, Va., the infamous jurist remains safely interred in one high profile venue — the U.S. Supreme Court.

Taney served as chief justice from 1836 to 1864. He earned notoriety for writing the 1857 Dred Scott decision, which found that blacks were not citizens. The ruling is widely regarded as one of the worst in the Court’s history.

Dred Scott was a black man enslaved in Missouri by U.S. Army surgeon Dr. John Emerson. Emerson took Scott to postings in Illinois and the Wisconsin Territory in the late 1830s, where slavery was prohibited by law. The Emersons returned to Missouri in 1840, whereupon Scott and his family sued for their freedom, arguing they were effectively emancipated during their period of residence in the free north.

The Supreme Court eventually concluded Scott was not a U.S. citizen by virtue of his slave status, and thus had no standing to sue. In his opinion for the Court, Taney argued that slaves had been excluded from citizenship at the founding of the republic.

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations,” he wrote. “[A]nd so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

Like other chief justices, the Court features a bust of Taney in the Great Hall, a marble corridor abutting the court chamber. A portrait of Taney also hangs in one of the Court’s conference rooms.

Considerable controversy surrounded the commissioning of busts of Taney in the past. Congress first ordered a likeness of the chief justice in 1865. Sen. Charles Sumner of Massachusetts, an avowed abolitionist, vigorously opposed the proposal.

“[T]he name of Taney is to be hooted down the page of history,” Sumner said, according to the Senate archives. “Judgement is beginning now; and an emancipated country will fasten upon him the stigma which he deserves.”

A resolution authorizing the procurement of a bust was eventually adopted in 1874. The likeness now sits in the Old Supreme Court Chamber in the basement of the U.S. Capitol.

Ian Samuel, a lecturer at Harvard Law School who cohosts a podcast about the Supreme Court, argues that the Court’s Taney imagery does not serve an exultant purpose, unlike other statuary. Samuel clerked for the late Justice Antonin Scalia.

“Unlike valedictory statues in public spaces — where an editorial decision is made to praise a particular person among many — the Court’s practice is to have a bust and portrait of every Chief Justice,” he told The Daily Caller News Foundation. “In context, it constitutes neither praise nor blame but simply acknowledgement of the person’s status as one of the Chief Justices of the United States.”

“I would not display a portrait of Taney in my home; neither would I display a portrait of Robert E. Lee. But I would expect a Civil War museum to display him, and the Court is really a museum of its own history in many respects,” he added.

Elie Mystal, a legal commentator and editor for Above the Law, disagreed with Samuel’s characterization. Mystal told TheDCNF that courthouses typify the most noble aspirations of the American people, in much the same way that churches lionize the best of their traditions. As such, he says, Taney does not deserve a place at the Supreme Court.

“[P]eople aren’t going to court to learn about the history of the Court,” he said. “They’re going to court to seek justice. Was Roger Taney a bringer of justice? Or did he indiscriminately deny justice to thousands of black Americans living in his own time? If the answer is the latter — and I think it clearly is — then his bust shouldn’t be in rock throwing distance of an active, American courthouse.”

James O’Hara, a professor at Loyola University Maryland and longtime trustee of the Supreme Court Historical Society, characterized Taney’s legacy as “complicated” during a 1997 lecture at the Court. While the Dred Scott ruling is a permanent fixture of the so-called anti-canon, O’Hara says Taney made significant contributions to law during his tenure, prompting judicial historians to consistently rank him as one of the Court’s most important justices.

“There is one name consistently found, which jars the observer’s eye,” O’Hara said of lists compiled by historians of consequential justices. “That name seems not to belong because there is an ominous shadow wherever it appears. The name is Taney and the shadow is Dred Scott.”

“If the overall record of the Taney Court is in so many ways splendid, then surely in some measure we must credit the wisdom, experience, judgement, and intelligence of the judges,” he added.

The Court’s important holdings include those which concerned the scope of the president’s wartime powers, encouraged the growth of state banks, hedged against monopolies, established a workable formula for the reach of the commerce clause, and generally countered the Marshall Court’s enthusiasm for national power with a revival of federalism, according to O’Hara’s telling.

Taney’s court also established the political questions doctrine, which precludes the Court from adjudicating political controversies. The doctrine remains operative in constitutional law, though it has evolved with time.

Though these accomplishments cannot eclipse the disgrace of the Dred Scott decision, O’Hara claimed they do show the complications of an unqualified anti-Taney iconoclasm.

But Mystal counters that Taney’s enduring legacy, the contribution forever preserved in American law schools, is Dred Scott.

“The President talked about ‘learning’ from these monuments,” he told TheDCNF. “Well, the Dred Scott decision is taught in every American law school. Taney’s legacy is secure. Nobody can get a legal education in this country without ‘learning’ from Roger Taney.”

Statues of the chief justice in other public venues have been removed in the aftermath of white supremacist violence in Charlottesville, Va., which left one dead and a dozen injured. One monument to Taney in Baltimore’s Mount Vernon Place neighborhood was quietly removed late Tuesday, while another on the grounds of the Maryland statehouse will be removed in short order.

The Supreme Court’s Public Information Office declined comment for this story.

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