The US Supreme Court becomes a very important political issue whenever a vacancy arises. Here, Jonathan Hennika continues his look at the history of the US Supreme Court (following his article on Marbury v Madison here), and focuses on slavery. He looks at the case of Dred Scott, and the 1850s ruling that said freed slaves were not US citizens.

Dred Scott, circa 1857.

Dred Scott, circa 1857.

In his Congressional testimony refuting the allegations of Dr. Christine Ford, Judge Brett Kavanaugh said in part: “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”[i]In 2018 the political reality is the line drawn between the Right (Conservatives/Republicans) and the Left (Liberals/Democrats).  As the final arbiter of all things Constitutional, Supreme Court nominees have and always will be a political firestorm. After his testimony, concerns were raised by the American Bar Association, the American Civil Liberties Union, and other organizations, both political and apolitical, regarding Judge Kavanaugh’s judicial independence. Judicial independence is as strong a myth in the system of American Jurisprudence as an apolitical court. 

In the teaching of American history, there was a euphemism used to discuss slavery: the peculiar institution. The phrase originated in the early 1800s as a “polite” way to discuss the topic of slavery. Southern historians later appropriated the phrase in an attempt to re-brand the image of the New South, i.e., the post-reconstructed South. These historians postulated and taught the paternalistic theory of slavery—that the life of the slave was better because the fatherly master-class took care of the slave’s basic needs. Such phraseology and historical excuses are intellectually dishonest. The question of slavery is one that troubled the founding fathers and the framers of the American Constitution. To see that conflict, one need look at Article 1, Section 2, Clause 3 of the Constitution, which reads: 

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”


Known as the “Three Fifths Compromise,” it was a stop-gap measure in determining the number of Representatives in Congress from the Southern States. Throughout the 19thcentury, as the nation grew, the debate raged on as to whether a territory or state admitted to the union were permitted to have slaves. Other measures included the Missouri Compromise of 1820 and the Kansas-Nebraska Act of 1854. As the nation grew and slavery became tied into the economy of the South, Southern politicians railed against Northern interference in the “peculiar institution.” The country balanced on a fulcrum of “free” and “slave” states. Each new admission to the Union tipped the balance one way or another. One of the methods the Southern plantocracy used to their advantage was through political patronage and judicial appointments. Southern politicians, such as John Calhoun, were adroit at imposing the will of the South on the nation.


The Question of “Citizenship”

It was not long for the question of slavery to reach the Supreme Court. It did so in the case of Dred Scott v Sanford60 US 393 (1856). As is often the circumstance, the Dred Scott case was two separate cases brought together for Supreme Court review. The slave, Dred Scott, sued under Missouri law and brought a second suit in Federal Court. These are the cases that became the Dred Scott case. The statutes in question were criminal trespass and false imprisonment. The historian Walter Ehrlich wrote extensively on the subject of Dred Scott and discovered heretofore lost court documents of Scott’s state action:

“The origin of any court litigation involves at least two basic issues. The first is grounds—do the law and the facts warrant legal action? The second is motivation—what specific circumstances impel the plaintiff to take his legal action….An investigation of Missouri statutes…reveals quite clearly not only that there were laws which prescribed circumstances under which a slave might become free, but also that ample precedent existed of slaves actually having been freed under those laws…Dred Scott…qualified substantially for his freedom.”[ii]


Chief Justice Roger Taney wrote the majority opinionthat held:

“A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State and were not numbered among its "people or citizens." Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being "citizens" within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit…. The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves.”[iii]


Sectionalism as a Deciding Factor 

In a 7 to 2 vote the Taney Court declared that the rights and privileges of citizenship did not apply to slaves and freed Africans. In the 20thand 21stcentury the Justices’ votes are often broken down via political lines; the left, the right, the middle. In the 19thcentury, sectionalism dominated the discussion. What section of the country did the Justice represent? There were nine members of the Taney Court:

-       Roger Taney (Chief), Maryland: Majority

-       John McLean, Ohio: Dissent

-       James Moore Wayne, Georgia: Majority

-       John Catron, Tennessee: Majority

-       Peter Vivian Daniel, Virginia: Majority

-       Samuel Nelson, New York: Majority

-       Robert Cooper Grier, Pennsylvania: Majority

-       Benjamin Robbins Curtis, Massachusetts: Dissent

-       John Archibald Campbell, Georgia: Majority


The Court’s majority hailed from states that left the Union in 1860. Chief Justice Taney was from Maryland, wooed by President Lincoln as a border state, and could have been a member of the Confederacy. Of the two Northerners who voted in the majority, President Buchanan pressured Justice Grier to join the majority to avoid the appearance that the ruling ran along “sectional lines.”[iv]The Executive branch used its friendship to influence the political topic of the day. These men on the Supreme Court may have attempted to “rise above” partisan rhetoric. If you examine them within the context of their times, a question arises: when declaring that Dred Scott and the many other slaves were not protected by the laws of man, were they thinking of their own section’s best interests? 

Dred Scottwas not the last time the Supreme Court had the opportunity to weigh in on the constitutionality of racial subjugation. The next time the Court sat on this question, the entire national dynamic had changed, though the culture remained. 


What do you think of the political nature of the US Supreme Court? Let us know below.

[i]“Brett Kavanaugh’s Opening Statement: Full Transcript.” New York Times¸ September 26, 2018. Retrieved October 14, 2018

[ii]Ehrlich, Walter. “The Origins of the Dred Scott Case,” The Journal of Negro History59 (April 1974):133

[iii]Scott v Sanford,60 US 393 at 393

[iv]John Mack; et al. Out of Many: A History of the American People(Englewood Cliffs, N.J: Prentice Hall, 2005) 388

The US Supreme Court becomes a very important political issue whenever a vacancy arises. Here, Jonathan Hennika looks at the history of the US Supreme Court and the importance of Marbury v Madison, the ruling that established judicial review and that allows courts to strike down unconstitutional government actions.

William Marbury. Painting by Rembrandt Peale.

William Marbury. Painting by Rembrandt Peale.

James Maddison. Painting by Gilbert Stuart.

James Maddison. Painting by Gilbert Stuart.

The recent confirmation battle over President Trump’s choice to replace Justice Anthony Kennedy was a critical moment for the Judiciary. During the news coverage, some analysts commented on the framer’s intentions for the Supreme Court to be apolitical. Richard Wolffe, a columnist for The Guardian, quoted Nebraska Senator Deb Fisher in a recent piece on the confirmation battle: “Judges make decisions based on law, not on policy, not based on political pressure, not based on the identity of the parties.”[i] An examination of Supreme Court presidence indicates that Judges do make decisions based on political pressure, policy, and/or party/regional identification.  In fact, it was the fear of political pressure that guided Chief Justice John Marshall in writing his majority opinion in the case of Marbury v Madison. 


Marbury v Madison: The Question of Judicial Review

Writing in 1912, Constitutional historian Andrew C. McLaughlin defined the theory of judicial review as the right of “any court [to] exercise the power of holding acts invalid, in doing so, it assumes no special and peculiar role; for the duty of the court is to declare what the law is, and, on the other hand, not to recognize and apply what the law is not…. This authority then in part arose…from the conviction that the courts were not under the control of a coordinate branch of the government but entirely able to interpret the constitution themselves when acting in their ownfield.”[ii]  To reach this definition, Professor McLaughlin utilized the majority opinion issued in the case of Marbury v Madison, 5 US 137, (1803). Commonly taught in high school civics classes,Marbury v Madison established the right of the Judiciary branch to rule on the Constitutionality of laws enacted by either the Legislative branch or orders issued by the Executive branch.  This concept, cleverly called a “balance of power” has weaved its way through the American narrative since the ratification of the United States Constitution in 1879. 

What then was the case of Marbury v Madison? While serving as Thomas Jefferson’s Secretary of State, founding father and future President, James Madison refused the commission of William Marbury to a federal judge post. The decision to hold up Marbury’s commission was a political one on the part of Jefferson and Madison. Marbury was one of sixty last-minute appointments that Federalist John Adams made to the judicial branch in his final forty-eight hoursin the office. The incoming Jefferson was an ardent Democratic-Republican and opposed the selectionof the “Midnight Judges,” the derisive name given by anti-federalist proponents.[iii]

Marbury filed for a Writ of Mandamus (an order enforcing the issuance of his Commission) with the Supreme Court. The Court issued its ruling on February 24, 1803.  In writing the majority opinion[iv], Chief Justice John Marshall broke the case down to three questions: (i) Did Marbury have a right to his commission; (ii) If Marbury had a right to his commission, is there a legal remedy available for him to have it; and (iii)If there was a remedy, what was it, and was the Supreme Court the proper jurisdiction?[v]


The Determination of the Court 

The Court ruled yes to the first two questions. It is the answer to the third question that we begin a discussion of judicial review and the Supreme Court’s place in the ConstitutionalRepublic. Madison’s argument was the Commissions arrived athis office late, i.e.,after Jefferson’s inauguration, and as such, the commissions were invalid. The Court rejected this argument, writing: “The [President's] signature is a warrant for affixing the great seal to the commission, and the great seal is only to be affixedto an instrument which is complete. [...] The transmission of the commission is a practice directed by convenience, but not by law. It cannot, therefore, be necessary to constitute the appointment, which must precede it and which is the mere act of the President.” As to the second question, the Marshall Court concluded: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”[vi]

The third questionbecame pivotal. Marshall knew that the Court was in a precarious political position. If the Court ruled in favor of Marbury,the implication was the judiciary favored the Federalist cause. Marshall also believed that Jefferson and Madison potentially might ignore any order to issue the commission, thus showing the inherent weakness of the Judicial Branch. This weakness, the inability to enforce its rulings, will appear again in the fallout of the Brown v Board of Educationdecision in the 1950s. However, Marshall was not comfortable with a rulingagainst Mr. Marbury, handing Jefferson a political victory. 

The decision then became that the Supreme Court did not have jurisdiction to make a ruling for or against Marbury. To avoid the appearance of a political victory for Jefferson, the Marshall Court tempered the decision by enacting judicial review. Procedurally, the Supreme Court heard the case under the Judiciary Act of 1789. The relevant part of the law read “The Supreme Court shall have powerto issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”[vii]Marshall ruled that this portion of the Judiciary Act of 1789 was unconstitutional. In the ruling, Marshall cited Article Three of the Constitution which laid out the duties and the responsibilities of the Supreme Court. Under the concept of judicial review, Marshall determined that Congress had violated the Constitution when it laid out functions regarding the dutiesand obligations of the Supreme Court. Thus, while the Supreme Court was constitutionally boundto hear the case of Marbury v Madison; it was not constitutionally bound to issue a ruling.


The Specter of Political Influence 

To make the Court apolitical, Marshall had to become political. He allowed the appearance of political influence on the judiciary to influence the judiciary’s decision in Marbury. Strengthening the Marburydecision was theCourt’s ruling in McCulloch v Maryland17 US 316 (1819). In a case brought surrounding the constitutionality of the Second Bank of the United States, the Court ruled that the Constitution granted Congress implied powers to implement the powersexpressed in the Constitution for there to be a functional national government. In other words, if McCullochcamefirst, then a decision needed to be rendered in Marbury v Madison because the Judiciary Act of 1789 was an example of a Congressional implied power used to aid an expressed power of the Constitution. The precedents of Marbury and McCullochcemented the definition of the judiciary as the ultimatearbiter on all questions Constitutional. They helped define the role of the legislative branch.  These cases are pointed to as the cornerstones of American Jurisprudence and holds the Supreme Court above the political fray. The decisions that defined the roles of the Judicial and Legislative branches were based, in part, on political pressure and the identity of the nascent parties. 

The paradox of an apolitical Supreme Court shows itself throughoutitscareer. The laws at the heart of their decisions are born from politics, so how can the Supreme Court maintain an apolitical position? Unfortunately, the Court cannot negate the intertwining of its rulings and the Court of Public Opinion, a.k.a. Politics. 


What do you think of the Marbury v Madison ruling? Let us know below.

[i]Richard Wolff. “Brett Kavanaugh’s confirmation isn’t democracy. It’s a judicial coup,” The Guardian, October 6, 2018. Retrieved October 12, 2018

[ii]Andrew McLauchlin as quoted in Edward S. Corwin, “Marbury v Madison and the Doctrine of Judicial Review,” Michigan Law Review, 12 (May, 1914), 548.

[iii]Paul Brest, Sandord Levinson, et al Process of Constitutional Decision-making: Cases and Materials (New York: Wolters Kluwer, 2018), 115

[iv]However, there was no minority opinion as the decision of the Marshall Court was a unanimous vote of 4-0.

[v]Erin ChemerinskyConstitutional Law: Principles and Policies.(New York: Wolters Kluwer, 2015). 39.

[vi]Marbury v. Madison, 5 U.S. 137  at 158, 160, 163

[vii]Judiciary Act, 1stCongress, Sess. I. Ch 20 1789, 80-81