Black robes and white justice
The dark sides of 3 early Supreme Court members
Every law student learns to John Marshall.
Greatest justice of the U.S. Supreme Court (although arguments can be made for Holmes and Brandeis). Greatest and longestserving chief justice. Vindicator of the rule of law. Author of Marbury v. Madison, establishing the principle of judicial review (”It is emphatically the province and duty of the Judicial Department to say what the law is”). Author of McCulloch v. Maryland, allowing for the national banking system and the development of a national economy. Author of Worcester v. Georgia, which barred President Andrew Jackson from paving the Trail of Tears (although the president defied the order and expelled the Cherokee Nation).
Unless the student is not paying any attention, it’s impossible to graduate from an American law school without developing a very deep and abiding respect for the great John Marshall. The one. The only.
But now along comes Paul Finkelman. A prolific legal historian and longtime scholar of American slavery, Mr. Finkelman has given us a new book, “Supreme Injustice: Slavery in the Nation’s Highest Court,” in which he shows no compunction whatsoever in bursting our balloon of naive adulation. revere While acknowledging Chief Justice Marshall’s greatness and paying due fealty to his place of honor in the judicial pantheon, Mr. Finkelman shows us another side of the great man. It’s not too pretty.
Mr. Finkelman demonstrates that he not only owned slaves, but also that he owned hundreds over the course of his lifetime, that he even bought and sold a great many, and that he freed few — or possibly none — of them upon his death. Mr. Finkelman also probes a number of Chief Justice Marshall’s decisions in detail, revealing that he sided with slave owners in a surprising number of cases, and with disturbing consistency.
The other two noteworthy justices of the antebellum court, Joseph Story and Roger Taney, also draw unsparing scrutiny in “Supreme Injustice.”
Justice Story, best known for his scholarly and authoritative “Commentaries on the Constitution of the United States” and his presiding role at the Amistad trial (portrayed memorably in the Steven Spielberg film “Amistad,” in which Justice Story’s character was played by retired Supreme Court Justice Harry Blackmun), was a committed nationalist who sought to undermine states’ rights arguments that would thwart the federal government’s efforts at control.
In the Prigg v. Pennsylvania case, which involved a slavecatcher’s kidnapping of a free black man in Pennsylvania and his smuggling of the man and his family to a Maryland slaveholder, Justice Story abandoned his own record of hostility toward slavery in favor of a robust defense of the Fugitive Slave Act and a validation of the message that even free blacks were at risk of bondage regardless of where they lived throughout the United States.
Chief Justice Taney is by far the easiest target of the three. Born to a wealthy planter family in Maryland, educated at Pennsylvania’s Dickinson College, he succeeded Marshall as chief justice in 1836. Unlike the Federalist Marshall or the Whig-inclined Story, Chief Justice Taney was a Jacksonian Democrat and in fact had served as Old Hickory’s attorney general. Although his reputation enjoyed a bit of a bump in the 1930s when future Justice Felix Frankfurter and others praised his progressive approach to state economic experimentation and development, that reputation has long lain in tatters by reason of his infamous 1857 opinion in the case of Dred Scott v. Sanford.
Long story short, Dred Scott held that blacks were long regarded as “beings of an inferior order, and altogether unfit to associate with the white race ... and so far unfit that they had no rights which the white man was bound to respect.”
On this basis, Chief Justice Taney denied any and all rights not only to slaves but also to free descendants of slaves in any part of the United States.
His opinion invalidated any restrictions upon American slavery, effectively wiping out the Missouri Compromise, the Kansas-Nebraska Act, and all other attempts by Congress to limit slavery to the Southern states.
Above all, his decision in Dred Scott helped spark the growth of the Republican Party, which led to Abraham Lincoln’s 1860 election and the lighting of the sectional fires that would soon explode into our nation’s greatest and most traumatic conflagration: the Civil War.
Taken together, Mr. Finkelman’s accounts of the troubling underbellies of the Marshall, Story and Taney careers offer an unsettling meal.
We can set Chief Justice Taney aside for now, because he was disgraced even then for his epic defense of slavery and bigotry. But the revelations about Justices Marshall and Story are hard to swallow. Again, Mr. Finkelman is not so rash as to debate the greatness of these two jurists. Their place, and especially that of the immortal Marshall, is secure. But we take from this slender volume a bit of doubt, a dose of skepticism, a glimmer of human failing, that we don’t get in a law school curriculum or even a conventional biography.
Revisionist history is all the rage. Hamilton is up. Jefferson is down. Grant is up. Lee is down. The pendulum swings. Sometimes, we miss the middle.
But this book is a useful contribution toward a fleshing out of the lives of three men who shaped the bulk of American law in the formative years between our independence and our descent into civil war. It’s not a replacement for biographies of these three jurists (of which there are several fine examples); it’s a healthy complement.