Dreaming of Dred Scott

A recent set of Gorsuch-weighted Supreme Court rulings have finally given Republicans something to crow about. The court’s approval of Trump’s Muslim Ban seemed like a blast from the German Vergangenheit but recent labor and reproductive rights rulings have been equally disturbing. Mitch McConnell and Neil Gorsuch met for a photo-op to troll Democrats. Their meeting demonstrated just how badly “checks and balances” work in this country and how shattered American democracy really is.

But while the extreme right exults in the belief that their Crusaders have finally pulled off a Reconquista, let’s remember the Dred Scott decision. Then, as now, the case reflected a Supreme Court that had totally lost its way — and the irreconcilable differences between Americans’ views of what sort of nation we want to be.

Dred Scott was a slave who sued for his and his family’s freedom in a state where slavery was illegal. In 1846 Scott filed suit from St. Louis, Missouri, where since 1824 there had been legal precedent for recognizing the freedom of escaped slaves: “Once free, always free.” Scott’s wife Harriet was friendly with Abolitionists who championed the family’s legal case. Scott lost the suit, re-filed and appealed, and lost again. In 1857 his case was again heard by the United States Supreme Court.

On March 6th, 1857 the Supreme Court ruled 7-2 against Scott. Chief Justice Roger Taney delivered the majority opinion, which was that Africans, free or not, could not be citizens of the United States. “The right of property in a slave is distinctly and expressly affirmed in the Constitution.” Furthermore, African-Americans had “no rights which the white man was bound to respect.” Consequently, freedom and citizenship could not be conferred upon non-whites and, since by the court’s criteria Scott was not a citizen, Scott had lacked “standing” to bring the suit in the first place.

The South did a victory lap. The Richmond Enquirer wrote, “A prize, for which the athletes of the nation have often wrestled in the halls of Congress, has been awarded at last, by the proper umpire, to those who have justly won it. The nation has achieved a triumph, sectionalism has been rebuked, and abolitionism has been staggered and stunned.”

But the Charleston, South Carolina Mercury speculated that this was just the beginning of a greater conflict between North and South: “In the final conflict between Slavery and Abolitionism, which this very decision will precipitate rather than retard, the principles of the judgment in the Dred Scott case may be of some avail to the South in giving an appearance of justice and moderation to its position.”

The Supreme Court had ruled in favor of White Supremacy and slavery but now it was the law. Abolitionists mocked the reckless, immoral ruling and doubled their efforts to end slavery. Ultimately Dred Scott, just as the Mercury had predicted, ignited a national conflagration that overturned slavery and destroyed the South.

Modern-day slavers and reconquistadores want to return us to 1857. America is as deeply divided now as it was then, and the prospects of a Trump Court for decades is deeply unsettling. But the fight for America’s soul is far from over. The arc of justice is frustratingly long but it will arrive. Whether in 2018, 2022, or later — Congress will pass into younger, browner, more progressive hands. Laws will be written to make legally explicit our liberties, protecting them from capricious, partisan rulings. The Trump Court will shuffle around in their robes, dreaming of Dred Scott.