Chapter 7: The Roger Taney Court (1837-1864)

The Five “Courts” Up to the Civil War

Marshall’s death comes in the seventh year of Andrew Jackson’s presidency, and the old General fills the void with a long-time loyalist in Roger Taney of Maryland.

While Taney will come to be regarded as one of the all-time “greats” among Chief Justices, many initially view his appointment with suspicion. He is the court’s first Catholic justice, a Federalist turned Democrat, and a slave holder who frees his slaves. But it is his role in the “war on the Second Bank” that most troubles his opponents in the Senate. After Jackson names him Acting Secretary of the Treasury in 1833, Taney immediately orders the removal of federal funds from the Federal Bank, something his two predecessors refused to do before being fired. This act ends the Bank’s viability and seals the bond of loyalty between Jackson and Taney. But it also leaves Taney with political enemies eager for revenge.

They get it on two occasions, first in 1834 when the Senate refuses to confirm his nomination as ongoing head of the Treasury, and then again in 1835 when they vote down Jackson’s initial attempt to appoint him to the Supreme Court after Justice Duvall retires. As usual, however, Jackson perseveres by nominating Taney a second time, when Chief Justice John Marshall dies in July 1835. His opponents call him a “political hack,” and judicial lions like Dan Webster and sitting Justice Joseph Story express fears for the fate of the court under his leadership. But by then the Democrats have taken control of the Senate, and he is approved by a 29-15 margin.

As his tenure begins, the American landscape has changed dramatically since John Marshall took over thirty-five years ago. Instead of a nation still dominated by its original east coast enclave, steady expansion has carried it all the way west, to and beyond the Mississippi River. In all, a total of nine new states are admitted to the Union between 1812 and 1837: Louisiana, Indiana, Mississippi, Illinois, Alabama, Missouri, Maine, Arkansas and Michigan. Also a host of new Territories have been identified, each hoping to achieve statehood. With each addition here comes added strain on the judiciary, including the Supreme Court Justices, who continue to ride their circuits.

In response, Andrew Jackson signs the Judiciary Act of 1837 on his last day in office, which boosts the size of the court from seven to nine members and adjusts some of their assigned boundaries. Further adjustment of this type will go into effect in 1842, 1855 and 1863.

Shifts in Supreme Court Circuit Geography  from 1801 to 1863

Profiles of Court Members

During his twenty-eight year tenure as Chief, Taney will be joined by eighteen Associate Justices, with five carry-overs from Marshall and the other thirteen appointed on his watch.

Three will be there almost throughout: James Wayne of Georgia (28 years); John Catron of Tennessee (27 years) and John McLean of Ohio (25 years). Others with long tenure under Taney include New York’s Samuel Nelson (19 years), Robert Grier of Pennsylvania and Virginia’s Peter Daniel (each 18 years), and John McKinley of Alabama (15 years).

Fifteen will be appointed by Democrat presidents – six by Andrew Jackson alone — and, with the exception of John McLean of Ohio, all will be party loyalists. Only one, Ben Curtis, is nominated by a Whig, Millard Fillmore, with the remaining three (Miller, Swain and Davis) chosen by the Republican Abraham Lincoln after the start of the Civil War.

Nine of the justices are Southerners and eight of them are slave-holders, as is Taney until he emancipates those he inherits in 1820 after his father dies.

When it comes to their performances, the 1993 Blaustein-Mersky poll conducted with legal scholars will accord very rare “great” ratings to Roger Taney and Joseph Story, and “near great” scores to Benjamin Curtis and Samuel Miller. The remaining judges receive “average” rating, with the exception of Philip Barbour who is labeled “below average.”

Members of the Taney Court: 1835-1864

Roger Taney (pronounced Tawney) is born in 1777, the second son of a wealthy tobacco planter in Maryland. He is a frail youth, devoted to his Catholic faith and to his studies. Since his older brother Michael is destined to inherit, his father enrolls him at Dickinson College at fifteen, and he graduates from there in 1796. After further training in the law, he passes the bar in 1799 and opens his own practice in the town of Frederick. His family reputation opens the door for him to politics, and he is elected to the Maryland House of Delegates. He is a staunch Federalist until his support for the War of 1812 accompanies a conversion to the Democrat-Republican camp. In 1819, at age forty-two, his personal circumstances change when Michael Taney stabs a neighbor to death in a fight and then, to protect the family inheritance, transfers 800 acres of land and thirteen slaves to Roger and another sibling. A year later, upon the death of his father, he frees all of his slaves, and expresses his personal view on the institution:

Slavery is a blot on our national character, and every real lover of freedom confidently hopes that it will be effectually, though it must be gradually, wiped away.”

Soon thereafter, Taney becomes an avid supporter of Andrew Jackson and campaigns for him in the “stolen election” of 1824. He then serves as Attorney General of Maryland from 1827 to 1831. His move into national politics comes suddenly in 1831 when now President Jackson overhauls his entire cabinet in response to the “petticoat affair,” and names Taney his Acting Secretary of War, a position he holds for ten months. He then serves as U.S. Attorney General before Jackson nominates him in 1833 to become Acting Treasury Secretary, where he seals the fate of the Second U.S. bank. The Marshall’s death opens the path for his move to the high court.

When Taney begins his term in March 1836, his seven man court includes five carry-overs from Marshall — Story, Thompson, Baldwin, McLean, and Wayne – and one new addition, Virginia’s Philip Barbour, who comes on when Justice Duvall’s deafness leads to his resignation. In 1837 the court expands to nine justices, the two new members being John Catron and John McKinley.

Joseph Story has been on the court for twenty-three years when Taney begins, and is already a famous figure. He will be the nemesis of the state’s rights members, arguing that the Constitution places the will of the American people and Congress above the wishes of all narrower interests. For this commitment to federalism, Andrew Jackson calls him “the most dangerous man in America.” While personally regarding slavery as “repugnant to the rights of man,” his dedication to the “letter of the law” still finds him concurring in the 1842 Prigg ruling which upholds the Fugitive Slave Act. His death in 1845 strengthens the hand of both Taney and the Southerners on the court over the next fifteen years.

At sixty-eight years of age, Smith Thompson has abandoned his earlier political ambitions while remaining an anti-federalist and an ongoing champion of tribal sovereignty.

Henry Baldwin remains a disruptive figure on the court, even after returning from his nervous breakdown in 1831. While he calls slavery abhorrent, he argues that the Constitution clearly defines slaves as “property not persons,” and dissents from freeing the Africans in the Amistad trial. He again dissents in Worcester v Georgia and Groves v Slaughter, saying in the latter that Ohio can ban slavery but not the movement of slaves as property across their state line.

While Story, Thompson and Baldwin all die between 1843 and 1845, the other two hold-overs (McLean and Wayne) will be with the Chief Justice for over twenty-five years.

McLean has abandoned the Democratic Party and is flirting with the Anti-Masons and Whigs by the time Taney arrives. He will continually be discussed as a possible presidential candidate and eventually find a home for his strong anti-slavery views in the Republican Party. Along with Benjamin Curtis, he also will be remembered for his vigorous dissent in the Dred Scott ruling.

James Wayne will serve for 32 years on the Supreme Court. He is born in 1790 on a Savannah rice planation operated by some 100 slaves. He is a precocious student, graduating from Princeton at eighteen, reading the law, and passing the bar in 1811 at twenty-one. He joins the Georgia Hussars and serves throughout the War of 1812. From there he is elected to the Georgia House, as Mayor of Savannah and, after terms on the state bench, to three terms in the U.S. House, resigning in 1835 when Jackson names him a justice. Wayne is one of those members who often depart from their expected positions. He is at heart a federalist not a strong state’s rights advocate, and generally supports corporations having comparable rights to individuals. He will reject the Cherokee plea for sovereignty and support their forced removal – then concur with Taney’s sweeping ruling on Dred Scott. Wayne is also remembered for opposing southern secession, while his own son joins the Confederate army and his back-home neighbors pillory him for sticking with the Union.

Philip Barbour and John Catron will round out Andrew Jackson’s total of seven appointments to the Marshall and Taney Courts.

Barbour is the son of a Virginian planter who reads the law, practices for several years, and heads into politics, serving seven terms in the U.S. House, including a stint as Speaker. He opposes “protective tariffs” as unconstitutional and is a faithful defender of state’s rights. When Gabriel Duvall resigns in 1835, Jackson taps Barbour to replace him. His impact on the court is meager, the only one major decision he authors being Holmes v Jennison, which supports the right of the state of Vermont to protect its citizens by sending a convicted murderer back to Canada despite the lack of a formal extradition treaty.

John Catron’s family moves from Pennsylvania to Kentucky where he receives very little formal education and works initially as a horse groomer and cattle herder. His life changes when he joins the 2^nd Tennessee Regiment and fights alongside Andrew Jackson in the War of 1812 campaign against the Creeks in Alabama. That experience shapes his beliefs about the Indians – “wandering tribes of savages who deserve to be exterminated” – and solidifies his friendship with Jackson. After returning home, reading law and passing the bar in 1815, Jackson encourages him to set up practice in Nashville. His success there, mostly in land law, leads on to a series of judicial appointments including the state Supreme Court in 1831. He is a slave owner all along, fathers a mulatto child with “Miss Sally,” and exhibits the usual racial prejudices, saying “free negroes are very dangerous” and must be returned to Africa. When the Judiciary Act of 1837 expands the size of the Supreme Court by two, Jackson nominates him for seat #8. Once there he supports state’s rights in Cooley; bemoans “the unparalleled increase of corporations, with their vast amounts of power…prejudicial to other classes of society;” and concurs with Taney’s decision on Dred Scott. But like Wayne, he is a die-hard Union man who opposes secession.

Once Jackson leaves office in 1837, the other eleven Taney Associates will be chosen by seven different presidents: Van Buren (McKinley and Daniel), John Tyler (Nelson), Polk (Woodbury and Grier), Fillmore (Curtis), Pierce (Campbell), Buchanan (Clifford) and, after secession, Lincoln (Miller, Swain and Davis).

Alabama’s John McKinley serves with Taney for a total of fifteen years. Little is known of his early years in Kentucky, but he reads for the bar on his own and is certified in 1800. He practices in Louisville before moving to Alabama where he is credited with founding the town of Florence and setting up its public schools and the local Presbyterian Church. By 1820 he is into politics, first at the state level as a Federalist supporting Henry Clay in 1824, then as a Democrat serving in the Senate (1826-31) and the House (1833-35). He is re-elected to the Senate in 1837, but chooses to go on the Supreme Court instead, after being nominated by Van Buren to fill the newly created seat #9. He is assigned to ride the Ninth Circuit, which covers the states of Alabama, Mississippi, Louisiana and Arkansas. This is an onerous burden and it leaves him physically debilitated from the mid-1840’s onward. McKinley’s contributions are minor, writing a modest 19 majority opinions, often on land laws, where he argues that Article IV, Clause 2 implies that public lands should be ceded to the states. His most noteworthy case is Lessee of Pollard v Hagan, which affirms the “equal footing doctrine” that all newly admitted states share the same rights as the original thirteen.

Peter Daniel’s outspoken defense of Southern interests disrupts many attempts by Taney to keep politics apart from the law. He is tutored in the law by Edmund Randolph, who presents the “Virginia Plan” at the 1787 Constitutional Convention, and whose daughter becomes Daniel’s first wife. After passing the bar in 1808, his volatile temper finds him killing John Seddon, a local businessman, in a duel. He is elected to the Virginia House of Delegates, then serves as Lt. Governor of the state and becomes a member of the “junto” backing Van Buren, who appoints him to the high court in 1836. He writes fifty dissents while there, consistent with Jacksonian principles: protection of state’s rights, opposition to banks, corporations and most federally funded internal improvements. But on slavery, he approaches a level of fire-eater outrage. He goes so far as to refuse to set foot on Northern soil and affirms the Dred Scott view that slaves are property and therefore can be transported anywhere in the nation.

Samuel Nelson graduates from Middlebury College, reads the law and establishes a successful practice specializing in commercial and land cases. His career as a judge begins in 1823, and by 1837 he has risen to Chief Justice of the New York Supreme Court. He is among the state’s Van Buren loyalists (the “Hunkers”) and makes an unsuccessful run for a U.S. Senate seat in 1845. Later that year, the political apostate President John Tyler nominates him for the high court, after his first four choices are rejected by an angry Whig senate. His reputation as a conservative Democrat and a judicial minimalist prone to following precedent secures his appointment and carries over to his 27 year career as a Justice. Nelson will side with Taney on Dred Scott, but as a fierce Unionist, he will join Justice Campbell’s attempt in 1861 to broker a compromise to prevent the outbreak of war.

Before his sudden death at sixty-one in 1851, Levi Woodbury is very much in the running for the 1852 presidential nomination for the Democratic Party. He graduates from Dartmouth and the Tapping Read Law School and by age thirty-five has been on the New Hampshire Supreme Court and elected Governor of the state. In 1825 he is a U.S. Senator, serving a full term before Andrew Jackson names him Secretary of the Navy and then Secretary of the Treasury. After another abbreviated term in the Senate, President Polk chooses him for the Supreme Court in 1845 to succeed Joseph Story. Like Justice Nelson he tries to adhere to the letter of the Constitution, and does so in writing the majority opinion on Jones v Van Zandt, upholding the Fugitive Slave Act despite his personal objections. He also contributes to parsing out the Commerce Clause to clarify on a case by case basis the boundaries between state and federal laws.

After several failed attempts to fill Henry Baldwin’s chair, President Polk plucks Robert Grier out of his relative obscurity on a Pennsylvania Circuit Court in 1846. Like the Chief Justice, he is an alum of Dickinson College and gains visibility by campaigning for Andrew Jackson’s runs for the presidency. He will serve for 18 years and be remembered mainly for his stated reliance on stare decisis (“to stand by that which is decided”) in the 1847 Cook v Moffit case on bankruptcy laws. Grier’s strong Unionist convictions translate into outspoken public criticism of the abolitionists and of any other threats to regional harmony. Still it takes inappropriate lobbying by fellow Pennsylvanian James Buchanan to persuade Grier to join Samuel Nelson as a second Northern judge to back Taney’s overly broad “dicta” in Dred Scott.

Benjamin Curtis graduates from Harvard Law School in 1832 where one of his professors is sitting Justice Joseph Story, founder of the program. He begins his long-term career in private practice by joining his cousin’s firm in Boston, specializing in patent law. In the political arena, he is a conservative “Cotton Whig” and one who refuses to be drawn into the “conscience” faction on slavery for fear of southern secession. Curtis is elected to the Massachusetts House of Representatives in 1849 where he formulates the 1851 Massachusetts Practice Act, a model for judicial reform. When Woodbury dies that same year, Daniel Webster reportedly convinces President Millard Fillmore to put him on the court. His majority opinion in Cooley v Board of Wardens again reflects his sensitivity toward those favoring State control over some aspects of commercial transactions. But of course, Curtis is most famous for his angry dissent on Dred Scott. Curtis is a lone Whig on the court and frequently at odds with his colleagues. He serves only six years, but is regarded as one of the “near great” justices by modern scholars.

When McKinley dies, Franklin Pierce replaces him with another Alabama man, John Campbell, who serves until just after the start of the Civil War. He is a prodigy, graduating from the University of Georgia at fourteen before attending West Point, reading law, and passing the bar in 1825 at age eighteen. He opens his own firm in Montgomery specializing in land grant litigation, before going off to fight in the Second Creek War of 1836. Back in Mobile, he dabbles in state politics and publishes scholarly essays, often on slavery. Like many of his counterparts, he owns some fourteen slaves while simultaneously calling for eventual emancipation. He is only forty-two when he joins the court, with no prior judicial experience. Like Catron and Daniel, he hopes to limit the influence of corporations, rejecting the notion that they are “citizens.” Campbell opposes secession and is brought in at the last second to negotiate on behalf of the South over the fate of Ft. Sumter. But then he becomes the only justice to abandon the Union, and serves as Confederate Secretary of War from October 1862 to the end.

Maine’s Nathan Clifford is also a politician before he is a justice and is regarded by foes as a “doughface,” a northern man committed to supporting southern interests. He is voted in by a slim 26-23 margin in 1858 and, once there, never drafts a majority position on a major case.

The final three judges are selected by Abraham Lincoln in 1862 after the war is under way. Like Clifford, none of them have ever been a judge before joining the high court. There are also Northerners who will tip the sectional balance away from the South during Taney’s final two years as Chief.

Samuel Miller grows up in Kentucky before moving to Iowa, a more comfortable home for his anti-slavery beliefs and Unitarian faith. Miller is both a practicing physician and lawyer, who will author over 600 opinions during his distinguished twenty-eight years on the high court.

Like Miller, Noah Swayne is another geographical transplant for reasons of conscience. He is born in Virginia and passes the bar there, but as a devout Quaker and abolitionist, he moves to Ohio at age twenty. Once there he becomes the state’s Attorney General and a member of its House of Representatives. Then, along with his friend Justice John McLean, he joins the Republican Party in 1856 and becomes a staunch supporter of Lincoln’s “wartime measures,” some of which stretch the boundaries of the Constitution.

Finally, David Davis of Illinois joins the court after acting as the successful floor manager for Abraham Lincoln at the 1860 Republican nominating convention in Chicago. His record on the court is lackluster, with his one significant ruling in the 1866 case Ex parte Milligan where he defends the right of a citizen to be tried in a civilian court rather than a military tribunal. He resigns in 1877 to run and be elected to the U.S. Senate.

Additional Profiles of the Taney Court Justices

Additional Profiles of the Taney Court Justices (Continued)

The Workings of the Court

The history of the Taney Court plays out in three phases, distinguished by turn-over in the Justices and a dramatic shift in the issues facing the nation.

In the first phase, lasting roughly a decade from 1835-1845, the judges are mainly hold-overs from the Marshall era, and the major cases are focused on disputes over commerce and banking fought out between old-time corporate-leaning federalists and the Jacksonian Democrats, intent on protecting the interests of the common man.

By the mid-forties, however, a largely new set of Justices are on board and about to face into the conflicts around slavery that will eventually tear the country apart – the Mexican War, extending America’s borders to the west coast; the South’s desperate need to plant its “peculiar institution” in these new territories to sustain its economic growth; and the equally intense Northern resistance to any such expansion — based for some on anti-black racism and protecting the interests and “dignity” of white labor, and for others on simple moral opposition to human bondage. These North-South battles over slavery will culminate in the 1857 Dred Scott ruling, which forever diminishes the Taney Court’s reputation.

The third and final phase is ushered in with the election of Abraham Lincoln, the Southern secession, the arrival of three new Justices, and several head-on battles between the Chief and the wartime Executive.

Make-up of the Taney Court in 1837

Three of the Taney Court’s most influential decisions are rendered on January 1, 1837, before Catron and McKinley are confirmed.

Notably, Justice Story, the strict constructionist, dissents in each one.

In Briscoe v Bank of Kentucky, a 6-1 majority overturns the 1830 ruling in Craig v Missouri which had denied the right of State banks to issue “bills of credit” per Article I, Section 10 of the Constitution. When Story dissents, the other Justices appear to recognize his argument, but seem moved by the practical problems accruing from President Jackson’s decisions to shut down the Federal Bank and rely more on hard “specie” (minted gold and silver coins) to operate the economy. The result being the Bank Panic of 1837 where individual credit almost dries up entirely. In concluding that the private Bank of Kentucky, and not the State, is responsible for issuing and “backing” the “soft money,” they find that the notes do not qualify as the outlawed “bills of credit” and are thus legal. This ruling restores much needed liquidity to the market, with banknotes widely distributed and accepted as currency. (It will not be until the 1863 National Banking Act that a Federal Currency replaces state banknotes.)

Mayor of New York v Miln, is another 1837 case where the court dodges the letter of the Constitution – this time the Commerce Clause – to reinforce the importance of a state law. The issue here is whether New York can protect its local finances against being saddled with possible indigent newcomers landing at its ports by forcing ship masters to post a bond as they arrive. After Captain Miln refuses to pay a $1500 fine for failure to comply, he appeals to the high court. Against Story’s objection, Justice Barbour’s 6-1 majority opinion favors the city, arguing that its local “policing duties” should take precedent here over federal authority to regulate interstate commerce.

The third case — Charles River Bridge v Warren Bridge – deals with contracts and a conflict between corporate profits and the public interest. It involves two bridges crossing the Charles River to handle traffic between Charleston and Boston, both chartered by the State of Massachusetts. The first is built in 1785 by the Charles River Bridge Company, charges users a toll, and proves to be highly profitable to its shareholders. But complaints about the toll rates prompt the State to contract with the Warren Bridge Company in 1828 to construct a free-of-charge option. When this puts the toll bridge out of business, the owners sue the State, claiming that it has violated the Constitutional Clause against ex-post facto actions that impair the obligations of their contract. Daniel Webster argues for the plaintiff and wins support from Story and Thompson. But the other five justices favor the defendant, stating that the contract did not grant the Charles River Bridge firm exclusivity and, besides that, the Warren Bridge better serves the general interests of the public.

Taken together, these three landmark decisions signal a modest tilt toward granting additional power to state governments.

The next three pivotal cases materialize in the 1841 and 1842 terms and take the Taney Court into the middle of the growing sectional tensions over slavery.

United States v Amistad addresses the fate of 53 Africans who seize control of a Spanish slave ship headed to Cuba and sail into port on Long Island Sound, where they are incarcerated. The case gains national publicity and attention when ex-President John Quincy Adams, an outspoken abolitionist, agrees to act as counsel for the captives. He argues that international slave trading was banned in America in 1808, and that the blacks are African citizens who deserve to be freed and returned to their native homes. By a 7-1 margin the court agrees with Adams, the lone dissenter being the ever disruptive Henry Baldwin who supports the Spanish claim that the U.S. laws don’t apply and that their “property” should be returned to them. Justice Story, a lifelong critic of slavery, authors the majority finding.

The 1841 case of Grove v Slaughter again touches the explosive issue of whether the federal government or the sovereign states shall have the ultimate power in settling disputes over slavery. The suit itself stems from an attempt by a Mississippi man, Moses Grove, to weasel out of paying off a promissory note to a professional dealer, Robert Slaughter, for the purchase of imported slaves. His rationale is that an 1832 state law bans this type of sale. Slaughter counters by citing the 1824 Gibbons v Ogden precedent and Article I, Section 8 of the Constitution giving the Congress alone power to regulate such trades. With Barbour now deceased and Catron ill, the remaining seven Justices find by a 5-2 margin that simple justice favors Slaughter. Their written opinions, however, vary sharply, and do little to settle the broad debates over slavery per se.

A decisive ruling marks the third of the Taney Court’s early cases on slavery, this time focused on the 1793 Fugitive Slave Act. As the anti-slavery and Underground Railroad movements gain traction in the North, local laws try to establish that any slave who is allowed into a Free State by his owner is automatically freed. The slogan being “once free, forever free.” Under this banner, Pennsylvania arrests a bounty hunter named Edward Prigg for capturing a run-away in violation of a state prohibition. Prigg appeals to the Supreme Court for redress, citing Article IV, Section 2 of the Constitution – and he prevails by an 8-1 margin. As in Amistad, Justice Story pens the majority opinion, asserting the principle that Congressional laws trump State laws on Constitutional disputes.

Between 1841 and 1846 the make-up of the Taney Court changes dramatically. Three Northerners have passed away: the rock solid Smith Thompson and the towering Joseph Story, along with the unpopular dissenter, Henry Baldwin. One Southerner, Philip Barbour, often rated among the least consequential justices in history, has also died.

Make-up of the Taney Court in 1846

Replacing Barbour is Virginia’s Peter Daniel who disrupts Taney’s efforts to keep politics out of the courtroom. As the sectional schism over slavery deepens, his rhetoric reaches “fire-eater” levels of outrage, and he swears never to set foot again on Northern soil. The three new Northern justices are Levi Woodbury, Samuel Nelson and Robert Grier. They are a decade or more younger than Taney and each is considered a judicial minimalist, inclined to follow precedents in their rulings. Woodbury is forever active in the political arena and, until his death, is considered a leading Democratic presidential nominee in 1852. Nelson and Grier will become the two Northern justices to concur on the Dred Scott ruling, with Grier ultimately “encouraged” sub rosa by fellow Pennsylvanian James Buchanan to go along.

Despite the turn-over, this new combination of justices manages to work quite well under Taney’s democratic form of leadership, and are able to achieve solid consensus on most of the upcoming landmark cases they consider.

In Swift v Tyson (1842), the court finds that a federal court may rely on “common law” (the body of prior precedents rendered) to reach decisions where state laws fail to address specific issues.

The 1845 decision in Lessee of Pollard v Hagan confirms the “equal footing doctrine” whereby all newly admitted states will enjoy the same rights as those of the original thirteen.

The Article IV “Guarantee Clause” – each state shall have a Republican form of government — is addressed in Luther v Borden (1849), after citizens of Rhode Island stage a violent rebellion against the existing establishment. Here the Court decides that their call for a new state constitution and government based on broader suffrage rights is strictly a political issue and, as such, must be addressed by Congress not the judiciary.

But inevitably the Taney Court is drawn back into contentious territory related to the future course of slavery.

In 1857 comes the Dred Scott v Sandford case that will place a permanent stain on Roger Taney’s otherwise splendid record as Chief Justice. At first glance it appears to be another straightforward dispute over whether a slave who is allowed by his master to spend time in a Free State is automatically freed. Hence the slave in this instance, Dred Scott, accompanies his army surgeon owner, Dr. John Emerson, to Ft. Armstrong in Illinois and then to Ft. Snelling in the Wisconsin Territory, where he is allowed to marry and live on his own, apparently free. However, after Emerson dies in 1846, his wife claims that Scott is her property and must return to her home in Missouri. When Scott refuses, the dispute enters the Missouri judicial system. A Circuit courts finds for Scott on the principle of “once free, forever free” – but this is reversed by the Missouri Supreme Court in 1852. Aided by pro bono legal aid from various anti-slavery groups, Scott heads to Federal court, citing its “diversity jurisdiction” to handle cases involving parties living in separate states. After a loss there, he makes a final appeal to the U.S. Supreme Court. The trial becomes a cause celebre, with daily press coverage and prominent counsel representing both sides: Montgomery Blair and George T. Curtis (brother of sitting Justice Benjamin Curtis) for Scott, and ex-U.S. Attorney General, Reverdy Johnson, for the defendant, Sandford.

The decision will be handed down on March 6, 1857, two days after James Buchanan is inaugurated.

This moment coincides with a series of violent events that threaten to erupt in civil war between the North and the South – the issue being whether slavery will be allowed to expand into the western territories taken in 1846 from Mexico. The “test case” for expansion has been “Bloody Kansas,” a territory racked for almost two years by corrupt elections, vicious massacres of rival families, sacking of entire towns and the presence of two competing state constitutions and governments, one for, the other against, slavery. This bitter division has also erupted in Congress, where opposing members wear side-arms into the chambers and abolitionist Senator Charles is nearly caned to death in his seat by Representative Preston Brooks over an 1856 speech criticizing the “Slave Power.”

Buchanan, whose election victory rested on Southern support, is determined to allow slavery to expand, while the newly formed Republican Party is opposed. Within this context, it appears that Chief Justice Taney – a fierce supporter of the Union – takes it upon himself to try to resolve the entire debate over slavery in the territories once and for all. While Justice Nelson is originally scheduled to write the opinion, Taney assumes control at the last minute. Then Buchanan attempts to influence the outcome, first by probing Justice John Catron on the details and then by encouraging fellow Pennsylvanian Robert Grier to join Samuel Nelson as a second Northerner to support Taney’s ruling. In the end, the Chief’s 55 page opinion offers three key conclusions:

1. As a black man, Scott has no “standing” to even appear in court, since the Constitution regards him as inferior, incapable of citizenship, and, if enslaved, having no individual rights save those granted by his master.
   
2. The authority of Congress to delineate boundaries on slavery ended in 1787 with the Northwest Ordnance, hence the 1820 Missouri Compromise line (36’30”) is unconstitutional along with any future bans on slavery.
   
3. The “once free, forever free” doctrine is also unconstitutional and Scott remains a slave unless and until he is officially manumitted by his owner. 

The decision enjoys a 7-2 margin on the court. Concurrence belongs to Taney, four other Southerners (Wayne, Catron, Daniel and Campbell) and two Northerners (Nelson and Grier). The two dissenters are Ohio’s John McLean, whose opposition is expressed in philosophical terms, and Benjamin Curtis of Massachusetts who pens a 67 page rebuttal which skewers Taney on one legal error after another.

Curtis begins by pointing out that in 1787 blacks were allowed to vote in five states, including Massachusetts and that freed blacks in North Carolina were described as citizens. But even if one ignores these facts, he finds that Taney’s opening declaration that Scott has “no standing” to appear in court should have ended the case right there – before he wandered off into his obiter dicta observations about the Missouri Compromise and limitations on Congressional power to pass laws on slavery. Given the fact that Congress did indeed authorize the 1793 Northwest Ordnance splitting territorial land into Free vs. Slave states along the Ohio River, Curtis sees no reason why Taney should nullify their power to set comparable boundaries in the west. Thus Curtis concludes that his dismissal of the Missouri Compromise is a matter of sectional partisanship lacking any legal foundation. As to Scott’s fate, Curtis simply reiterates his conviction that the “once free, forever free” precedents across many states and the doctrine of comity should be sufficient to release him from slavery.

Taney never forgives Curtis for his dissent and Curtis never forgives the Chief for what he regards as a violation of the Court’s sworn duty to put the law above personal and political motivations. After further unpleasant exchanges with Taney, Curtis resigns his seat on the bench, the only Justice to cite “principle” as his reason for exiting. Taney appears unmoved by the departure, but he does revisit the decision many times, while remaining unshaken in his belief that the ruling was both legally proper and in the interest of trying to prevent the dissolution of the Union. History of course will disagree, labelling it an instance where a “great” Justice allowed his southern roots and biases to cloud his judicial objectivity, to the detriment of the nation and his personal reputation.

(Dred Scott’s new owners officially free him and his wife, Harriet, two months after the Supreme Court decision. He dies of tuberculosis a little over a year later while she lives as a freed black in St. Louis for 18 more years.)

Both the Southern states and President Buchanan are delighted by the Dred Scott decision which they regard as endorsing the expansion of slavery into any and all territories in the west. On the other hand, the North tends to regard it as an attempt by a biased Supreme Court to “nationalize slavery” against the wishes of the majority of America’s citizens. Even the Democratic Party finds it bewildering after its Congressional leader, Senator Stephen Douglas, has “sold” the notion that slavery in the new territories will be settled by “popular sovereignty” – the votes of the people – rather than any government mandates. In his famous 1858 debates with Abraham Lincoln, the Little Giant looks away from Dred Scott while defending his “popsov solution,” while Lincoln begins to drift toward his eventual view that the dissents by McLean and Curtis signaled the decision was not settled law.

Thus the North-South conflicts will rage on to 1860 and the election of Abraham Lincoln on the Republican Party’s platform of banning slavery in the west. Before Lincoln is even inaugurated, seven Southern states have seceded from the Union to form a new government, The Confederate States of America.

On April 12, 1861, rebel forces attack Ft. Sumter in Charleston harbor and the Civil War is under way.

Despite their sectional roots, all of the southern Associates except for “fire-eater” Daniel publicly oppose secession. John Catron, slave owner and dedicated states’ rights backer, is driven from his home in Tennessee after his Jacksonian-like pleas to preserve the Union. James Wayne is forced to flee from Georgia, opposing secession even as his son enlists in the Confederate army. John Campbell, who replaces McKinley in 1852, attempts to mediate a cease fire in April and is threatened with lynching in his home state of Alabama for so doing. He eventually becomes the only justice to join the southern cause, acting as Jefferson Davis’s Secretary of War from October 1862 onward. Finally there is Taney himself, who carries on while believing that separation is lawful and probably now necessary, but also hoping that it can proceed in a peaceful manner. Of course, that is not to be.

The “war years” mark the third and final phase of the Taney Court, with conflicts commencing almost immediately after Lincoln takes office.

These commence with Washington surrounded by the Slave States of Maryland and Virginia, and Army Commander Winfield Scott raising fears of a possible invasion of the capital. In response to mob attacks on Union troop transports in Baltimore, Lincoln authorizes the General to suspend habeas corpus in the state if need be, meaning that citizens suspected of treason can be arrested and held without being tried in a court of law. On May 25, 1861, Lieutenant John Merryman of the Maryland militia is jailed for destroying vital railroad bridges in the state and denied any appeal. His lawyers proceed directly to Chief Justice Taney, demanding that their client be allowed to face his accusers and defend himself before a jury. Taney acts immediately, ordering Merryman’s captor, General George Cadwalader, to bring him to the U.S. Circuit Court where he is presiding, to hear the case. When Cadwalader tries to delay, Taney holds him in contempt. On May 28, an irate Chief rules from the bench in ex-parte Merryman that neither the President nor anyone other than Congress has the authority to suspend habeas corpus. In so doing, he charges that Lincoln has broken the law.

While Taney’s presses his demand that Lincoln either try or release Merryman, the President ignores the order until referencing it in a special July 4, 1861 address to Congress. He argues that his overriding constitutional duty as President is to preserve and protect the Union. As to habeas corpus, he asks his audience if they would prefer to see “the government itself go to pieces, lest that one (law) be violated?” Then, within days of the speech, Attorney General Edward Bates issues a 26 page advisory citing legal supports for Lincoln’s action. It focuses on the Suspension Clause in Article I Section 9 of the Constitution:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

The general public in the North embraces Lincoln’s explanation and vilifies Taney from then on for appearing to side with the enemy. From a purely legal perspective, critics condemn Taney’s ruling for bordering on the same rigid excessiveness and overreach associated with his Dred Scott declarations. Still, the Chief refuses to back off. Later in July, he gets Merryman released from Ft. McHenry for an appearance in front of a grand jury in Baltimore. It indicts him for conspiring to commit treason before releasing him on $40,000 bail to await a jury date. At which point Taney achieves his own personal sense of justice! He does so by postponing one trial date after another while demanding that he alone must sit as judge on the case. Merryman thus avoids a final judgment of his peers and lives on at home until his death in 1881. He serves as Maryland’s State Treasurer after the war and names one of his sons Roger B Taney Merryman in honor of the Chief Justice.

Meanwhile Lincoln tempers his detention orders in February 1862 releasing most of those imprisoned during the suspension and granting them amnesty if they swear not to offer further aid to the Confederacy.

But the head-on conflicts between the President and the Chief Justice will continue right up to Taney’s death in October 1864. Both men are outstanding lawyers and both share profound knowledge of the Constitution. They part ways, however, when it comes to applying its prohibitions on a Commander-in-Chief within the context of the Civil War. Taney’s ally, Justice Catron, sums up Lincoln’s policies as follows:

Necessity is (his) plea, and (his actions) exhibit the Commander’s will. The End, we are told, is to crush out the Rebellion; that the whole means are at the President’s discretion and that he is the sole judge in the Selection of the Means to accomplish the End. That is a rejection of the Constitution with its limitations.

In Taney’s mind, one action after another taken by Lincoln during the war impinges on civil liberties and states’ rights. Over time the litany here includes:

• The suspension of habeas corpus and further attempts to shut down free speech by closing hostile newspapers and arresting those deemed as agitators.
• The Revenue Act of 1861 calling for a federal income tax, previously prohibited by law.
• Imposition of a naval blockade against the South in the absence of a required “declaration of war” by the Congress.
• The illegal seizure of the British vessel Trent along with two American citizens (CSA envoys Mason and Slidell) as part of the blockade.
• The capture by the blockade of four ships, having a mix of foreign and American owners, and their assignment to “prize courts” to assess their disposition.
• Seizure of land and property (including slaves) of “disloyal citizens” under the Second Confiscation Act of 1862.
• Funding the war via the 1862 Legal Tender Act establishing government currency (“greenbacks”) not guaranteed by species.
• The 1863 Emancipation Proclamation depriving slave owners in rebel states of their property.
• The Enrollment Act of 1863, the first military draft, infringing on the Tenth Amendment and resulting in riots, especially over the “substitution” clause.
• The jailing of “Copperhead” Clement Vallandingham for speaking out in opposition to the war in 1864.

Not every one of these moves by Lincoln is regarded by Taney as a clear-cut violation of the Constitution, but together they come close enough for him to opine that the court he is presiding over has relinquished its commitment to the letter of the law.

However, by 1862 Taney no longer regards the high court as his own instrument. Thus, as soon as Lincoln sees that a reconciliation with the South is out of reach, he reshapes the membership to his own liking. In January 1862, he names Ohio’s Noah Swayne, a Quaker and abolitionist, to replace McLean, who has died eight months earlier. Then come two Northern Justices replacing two Southerners. The first, chosen two years after Daniel’s death, is Samuel Miller of Iowa who joins in July 1862. He is followed in October by Lincoln’s campaign manager, David Davis, after Campbell resigns his post. This results in a sectional mix favoring the North by a 6-3 margin.

Make-up of the Taney Court in 1862

As 1863 begins, Taney is approaching his 86^th birthday, plagued by various intestinal illnesses and colds, and a collapse in personal finances which force him to ask friends for money to pay his bills. Still he rejects suggestions to delay the Court’s term and launches into the final important challenge of his career, known as the Prizes Cases. The dispute here originates after Lincoln declares a naval blockade of the South in April 1861. This quickly leads to the seizure of four different ships, the Hiawatha owned and crewed by Britain, a second vessel, the Warwick, sailing from Rio de Janiero, and two American brigs, Crenshaw, and Brilliante. After failing to recover their ships in the lower courts, the owners appeal to the Supreme Court for redress of their losses. While the facts of the case are straightforward, the political impact of a decision favoring the plaintiffs could be profound.

The central legal issue hinges on whether, in instigating the blockade, Lincoln in effect declared war on the South in violation of Article I, Section 8, Clause 1 of the Constitution:

The Congress shall have power to…declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

The plaintiffs argue that a blockade is recognized as an act of war between two independent nations and, since the President had no authority to declare war, the ship seizures were illegal.

Lincoln’s concern in the case is less about about returning the ships than about having the decision recognize the Confederacy as a credible nation among European countries still eager to curtail America’s path toward global dominion. So far he has been able to cast the CSA as a “band of rebels” engaged in an insurrection not a traditional war. Were he to lose the Prizes Cases, this sleight of hand could collapse, and Britain – still smarting from the seizure of two Southern envoys off its RMS Trent in 1861 – might grant the CSA formal diplomatic recognition and supply it with military aid. In 1863 the outcome on the battlefield is still uncertain enough that foreign interference could tip the balance. So the President hopes he can convince the Justices that the blockade per se was not tantamount to illegally declaring war on a foreign nation.

The task for the government is handed to U.S. Attorney for Massachusetts, Richard Dana Jr. who makes the most out of a fairly tenuous set of facts. He compares Lincoln’s action to that of President Polk’s invasion of Mexico in 1846 without Congressional approval. Both men, he claims, were forced to act urgently to protect the nation, and both gained subsequent support among the legislators. He also notes that Lincoln’s blockade was issued when Congress was in recess, a week after Ft. Sumter was attacked. Beyond that he says the blockade was simply a common military tactic between any two belligerent parties, not a formal declaration of war.

After twelve days of presentations the Justices are split evenly at 4-4, with Robert Grier of Pennsylvania as the deciding vote. While he goes along with Taney on Dred Scott, Grier hands the victory here to Lincoln on the grounds that he was justified in blocking the ports when he did, to protect the Union. Taney is unmoved by Dana’s narrative and sees Lincoln’s blockade as another example of his willingness to violate the clear intent of the Constitution. He is joined in this view by Catron, Wayne, and Nelson, who authors their dissenting opinion.

In the end, the blockade – christened the “Anaconda Plan” by General Scott – proves crucial to the ultimate Union triumph, and the British, despite sustained anti-American hostility from the PM, Lord Palmerston, never get around to formally recognizing the CSA as an independent nation — with Ambassador Charles Francis Adams and Secretary of State Henry Seward sharing some credit for this outcome.

The Prizes Cases is the last significant trial before the Chief Justice, but not the end of his battle with the administration, and even with the Congress. In March 1863, two laws are passed that Taney opposes: the Habeas Corpus Suspension Act which sanctions the President’s actions during the course of the war against agitators like Merryman; and the Enrollment Act which in effect replaces the traditional volunteer militia with forced enlistments.

As Taney’s health continues to decline, a final controversy emerges over the First Amendment right to free speech. The issue begins on the floor of the U.S. House where a faction of Northern Democrats assail the administration for starting the war in the first place and then refusing to sue for peace after the losses mount up. The Republicans christen this group the “Copperheads” – poisonous snakes in the grass fomenting surrender. Their leader is Ohio Congressman Clement Vallandhigham whose farewell speech in the House says that Lincoln has given the nation “defeat, debt, taxation and sepulchers.” From there he takes his message out to the country to rally public support building after Union defeats mount up at the Peninsula and Second Bull Run (August ’62) and Fredericksburg (December ’62). On April 13, 1863 General Ambrose Burnside, the loser at Fredericksburg, unilaterally issues General Order 38 barring all anti-war speeches or protests in his Department of the Ohio. On May 1 Valladingham defies the order in addressing a crowd of some 15,000 in Mt. Vernon, Ohio, and four days later, he is arrested just as news of the humiliating Union loss at Chancellorsville comes in. He is tried and convicted by a military tribunal and held in jail. When asked about the outcome, Lincoln offers one of his typically pointed observations:

“Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?”

While the President actually regrets Burnside’s order, he decides not to undercut his senior general and takes the extraordinary step on May 25 of ordering that Vallandigham be escorted into Confederate lines in Tennessee, effectively banishing him. By that time, a writ of habeas corpus has been filed in the U.S. Circuit Court in Cincinnati. When the judge denies it, the case ends up on appeal in the Supreme Court as ex parte Vallandigham. It drags on until February 1864 before a final ruling that the high court lacks jurisdiction to review judgments rendered by a military tribunal. Taney is ill and takes no part in the decision which is penned by Robert Grier. (After the war in ex parte Milligan, the Salmon Chase court will reverse this ruling and claim authority to review and possibly overturn judgments rendered by military courts.)

By the Fall, Roger Taney is fully worn out by a combination of stresses — the lost control of “his court” over Constitutional issues, his mounting financial debts, and ongoing intestinal infections. At eighty-seven years of age, he has served as Chief Justice for 28.5 years, second only to John Marshall. He dies at home on October 12, 1864 and is remembered in part by Attorney General Bates:

He was a man of great and varied talents. The luster of his fame, as a lawyer and judge, is for the present dimmed by the bitterness of party feeling arising out of his unfortunate judgment in the Dred Scott case. That was a great error, but it ought not and will not for long tarnish his otherwise well-earned fame.    

Photo Gallery

Supreme Court

Chief Justice John Jay

Chief Justice Roger Taney

Chief Justice John Marshall

Associate Justice John McLean

Associate Justice Robert Grier

Associate Justice Samuel Nelson

Associate Justice David Davis

Associate Justice Joseph Story

Other Prominent Judges

Judge Jeremiah Black (Pa)

Judge William M. Brooks (Ala)

Judge James Kent (NY)

Judge Lemuel Shaw (Mass)

Judge Hamilton Rowan Gamble (MO)

Judge Joseph Holt (Ky)