Death came for Chief Justice Roger B. Taney of the United States Supreme Court 150 years ago. Nominated as Chief Justice by his friend President Andrew Jackson and had sat on the court for 28 years. Although he had authored many important decisions, he is remembered today only for one: Dred Scott. 87 years old at the time of his death, Taney, a slave owner, had mirrored the tragic trajectory of the views of the South in regard to slavery in his own life. As a young man he regarded slavery as a blot on our national character, as he said in his opening argument in defense of a Methodist minister accused in 1819 of inciting slave insurrections. He emancipated his own slaves. However, by the time he authored the Dred Scott decision in 1857 he would write:
It is difficult at this day to realize the state of public opinion in regard to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted; but the public history of every European nation displays it in a manner too plain to be mistaken. 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, and so far unfit that they had no rights which the white man was bound to respect.
Taney thought that the decision in Dred Scott would settle the slavery issue in regard to the territories and remove it from politics. Instead the decision inflamed public opinion North and South and manifestly helped bring on the Civil War. Taney lived to see his nation riven by Civil War and an administration in power dedicated to restoring the Union and abolishing slavery, and more than willing to ignore the paper edicts of Taney’s court when necessary. Old and sick, Taney remained on the bench, unwilling to have Lincoln name his successor, a living relic of a bygone era. The best epitaph for Taney I have ever read was that given by Justice Antonin Scalia in his magnificent dissent in Planned Parenthood v. Casey:
There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “It is the dimension” of authority, they say, to “cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Ante, at 24.
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.