Attacks on system of checks/balances sully nation's history

Samuel Damren

This is the second commentary in a series on Justice Roger Taney and the Dred Scott decision. 

This commentary focuses on Justices Taney, Catron, and Grier’s efforts, at the prompting of President-elect James Buchanan, to use the Dred Scott decision as a vehicle for a dramatic and full resolution of the issue of slavery in America.

Taney’s activities are described in the “The Dred Scott Case” by Stanford Professor Don Fehrenbacher, which received the Pulitzer Prize in History in 1979.  

The Supreme Court was presented with the Dred Scott case in December 1854 when it received the trial and appellate records from the lower courts.  The case languished on the court’s docket until February 1857 when it unexpectedly swept to the forefront of the political crisis between North and South over the expansion of slavery.

In the summer of 1854, Congress passed the Kansas – Nebraska Act, which replaced previous geographic limits on the expansion of slavery under the Missouri Compromise of 1820.  Instead of geographic limits, the new act allotted “popular sovereignty” to the territories leaving “the people thereof perfectly free” to provide for government with or without slavery.

To influence territorial votes on the issue, pro-slavery and anti-slavery forces flooded the territories beginning with Kansas in 1855.  Non-resident, and thus illegal, voters from adjoining Missouri first elected a pro-slavery legislature in Pawnee.  Thereafter, settlers from free-states repudiated the so-called “bogus” government by electing a competing legislature in Topeka.  

President Franklin Pierce, a Democrat, supported the pro-slavery government, but took no action to resolve the stalemate.

The conflict grew violent, and according to Fehrenbacher, “Bleeding Kansas,” as the territory was known in the press, was soon “on the verge of Civil War.”  In political turmoil, the Democratic Party fractured into Northern and Southern factions.  Reflecting deep divisions, the House of Representatives of the 34th Congress (1855-57) required 133 votes to select a Speaker by plurality instead of the customary majority.

President Pierce had intended to run for re-election in 1856.  However, the Northern faction of the Democratic Party, incensed by his support of the Kansas – Nebraska Act and the pro-slavery territorial government in Pawnee, derailed his candidacy.  Instead, the Democrats selected James Buchanan of Pennsylvania.  

Buchanan was an elder statesman.  Previously, he served as Secretary of State under President James Polk.  At the time of his nomination, he was serving in Pierce’s administration as minister to Great Britain.  Based in London, he had stayed above the internal party fray.  As a candidate, Buchanan pledged to support the party platform, including “popular sovereignty.” 

Unknown to many Democrats, Buchanan held strong sympathy for the South, which would later be reflected in his selection of cabinet officers.  For his cabinet, Buchanan chose four Southerners, all present or former slave owners, and three Northerners who, like Buchanan, also held sympathy for Southern interests.  

The general election in November was a three-party contest.  Buchanan received 44 percent of the popular vote and won the Electoral College ballot by a wide margin.  During the campaign, though he searched for one, candidate Buchanan could not identify a political solution to the vexing sectional controversy of slavery.

The Supreme Court first heard argument in the Dred Scott case on February 11, 1856.  The argument identified technical and procedural issues in the record.  As a result, the court set the case over for further briefing and re-argument on December 15, after the presidential election.

For decades, Supreme Court opinions on issues related to slavery had been typically decided on narrow grounds.  This was, in part, a reflection of the court’s view of appropriate legal process, but also a recognition of the institutional risk to the court if it were perceived to tip judicial scales in favor of one side or the other of the partisan divide.

Now President-elect, Buchanan thought otherwise. 

Whether the result of hubris, ambition or simply out of frustration, Buchanan came to believe that a strong, definitive and sweeping opinion from the Supreme Court could provide lasting resolution to the slavery controversy and restore national harmony.  Based on this conviction, he set about to orchestrate precisely such a scenario to coincide with his inauguration on March 4, 1857.

As author Fehrenbacher details, Buchanan first privately communicated his desires to “his old friend Justice Catron on February 3.”  Catron responded on February 10 that the case “would be decided in a conference on Saturday, the Fourteenth, but not in a way to help Buchanan with his inaugural.”  

That all changed a few days later when Justice Wayne moved that the majority, comprised of the five Southern justices, “take hold of the thornier issues” and assign Taney to write the opinion.  

Fehrenbacher plausibly suggests that while the “voice was Wayne’s,” the hand behind it “may have been the hand of Taney.”

In short order, Taney undertook the arduous task to draft and complete Buchanan’s desired opinion with two weeks remaining before the inauguration. The resulting legal analysis was likely something he had been formulating over decades.

Justice Catron knew that public acceptance of so controversial a decision by the five Southern justices without the support of a Northern justice would be difficult.  As a result, according to Fehrenbacher, 

Catron “urged Buchanan to help bring his fellow Pennsylvanian,” Justice Robert Grier, “into line.” 

Buchanan intervened and delivered.

Days before inauguration, Buchanan learned that the opinion could not be completed and released to meet the target date. In his inaugural address, Buchanan advised the audience that a significant opinion would be forthcoming from the court on the slavery controversy.  Feigning lack of knowledge of the substance, he urged citizens to abide by the decision whatever it might be.  

The Dred Scott opinion was read to the public on March 6, 1857.  However, publication of the written opinions was delayed for several weeks.  During that time, Taney revised his majority opinion to better meet some of the criticisms contained in two dissents.  In disregard of Supreme Court practice, he never showed the revisions to the two dissenters so that they might further revise their dissents.

One way to neutralize the checks and balances between government institutions is by co-opting the independence of institutions from the inside. 

In the Dred Scott case, out of ego and through deceptive and underhanded tactics and to their lasting disgrace, the Southern justices, Grier and President Buchanan co-opted the independence and integrity of the Supreme Court.  Far from being the unexpected, but dramatic, solution that Buchanan envisioned to the slavery issue, the Dred Scott opinion emboldened Southern resolve and increased Northern hostility.

Two years ago, the country witnessed similar misapprehensions guide Donald Trump’s attacks on the checks and balances of American democracy. 

In seeking to prevent the peaceful and orderly transfer of presidential power after the 2020 election,Trump attempted to co-opt numerous secretaries of state from discharging their official duties, block his Vice President from certifying the Electoral College vote count, advance alternative electors to the Electoral College, initiate meritless investigations of voter fraud by the Department of Justice, and appoint an Acting Attorney General who would falsely declare that the election results were a fraud.

Unlike the Taney Supreme Court, the democratic institutions that Trump sought to co-opt proved more resistant.

The first commentary in this series focused on the dangers posed by selective and misleading judicial findings of supposed historical “facts” under the doctrine of “originalism.” Taney’s Dred Scott opinion was Exhibit A.   

The next and third commentary in this series will identify an inherent flaw in applying originalist theory after post-Civil War Amendments to the Constitution forever changed the composition of the American “body politic.”   


Samuel Damren is an attorney and author.

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