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This is the archive for February 2007

Tuesday, February 13, 2007

Since 1950 there have been four landmark decisions rendered by the U.S. Supreme Court, three of which would readily come to the mind of most people, with little or no prompting required. The 1954 decision involving Brown versus the Topeka, Kansas Board of Education struck down provisions of a law that ordained separate but equal educational facilities for whites and minorities. In 1966 the Court ruled in Miranda versus Arizona people had the right to remain silent and the right to have an attorney present when questioned by police. Roe versus Wade, decided on in 1973, confirmed reproductive rights for women and the legality of abortion. The fourth case, the NAACP versus Button, heard before the Court in 1963, is less well known, but once against visited the right of free speech as protected by the First Amendment to the Constitution. With the exception of Roe v. Wade, which some are still trying to have reversed, most Americans would probably react with shock if the Brown, Miranda, or Button decisions were deemed null and void. With the separation of time, I think we could all agree the decisions in those cases were fair and just. Without trying to start a firestorm on Roe v. Wade, I’ll simply state that I support the Court’s decision. To head off a potential flood of Emails from abortion foes, let me say there is absolutely nothing you can say that will change my mind. At the same time I don’t believe anything I could say would change your mind. So, lets simply agree to disagree.

Call me an idealist, or naïve, but I have a certain concept about the laws of this land, including Federal and State. Above all, laws should be instituted and maintained if they are just and ensure equal protection and focus on serving the greater good of all who fall under their sway. Laws, and this is probably my naiveté coming to the fore, should not be self serving or derived to benefit certain small interest groups. Quite simply they should, for example, secure our persons against unreasonable search and seizure, ensure our right to stand in a public place and say what’s on our mind, and to allow for “life, liberty, and the pursuit of happiness.” There are of course limits to certain rights, such free speech, which does not allow you to yell “Fire!” in a crowded theater, unless of course it were true and then you might want to warn people in a less panicked way, and you can’t advocate the violent overthrown of the government.

Call me an idealist, or naïve, but I have a certain concept about the justices who sit on the Supreme Court and that concept argues that the justices should not let their personal biases or political affiliations influence their votes on cases. We all realize that Presidents try to fill vacancies on the Court with people of similar conviction. Liberal Presidents nominate liberals, moderates nominate moderates, conservatives, what else but, fellow conservatives. We hope that the nominees who take their place on the bench are wise, above reproach, and above politics. Sad to say, one of the worst examples of Court conduct we’re had to witness was their ruling on the 2000 Presidential election, when their votes broke down along party lines. So much for the idea of the integrity of the Court.

That a Chief Justice of the Supreme Court can be influenced by his own personal biases, prejudices, social mores, and political ideology is no more apparent, however than with Roger B. Taney, who presided over the Nation’s highest court from 1836 to 1864 and will forever be linked to the 1857 Dred Scott decision. Taney’s reputation as an otherwise brilliant jurist was tarnished by this one decision, a decision that perplexes legal scholars even today, because Taney threw all legal precedent to the wind and, far from issuing a reasoned opinion in the case, allowed seemingly irrational thought processes to take hold. Philosophically in tune with Southerners, which he effectively was, having been born in Southern, Maryland to a slave holding family, he was, at the same time, a man of contradictions; taking steps to free his own slaves and was personally repulsed by the institution, while at the same believing blacks were effectively sub-human and supported the South’s right to secede from the Union.

That such a man would clash with Abraham Lincoln is the premise of James F. Simon’s book "Lincoln and Chief Justice Taney." Simon stresses the similarities of the two men as evidenced, for example, by their intellect, their strong belief in the sanctity of the Constitution, and support for a National Bank. Where they differed was their interpretation of Founding Father’s intent on the issue of slavery as a protected institution, and Presidential powers. Lincoln himself questioned the Constitutional legality of his Emancipation Proclamation, while his suspension of the Writ of Habeas Corpus and open defiance of Taney on this issue, left the latter outraged. When Lincoln called for troops to respond to the Nation’s defense, Taney clearly saw this as a violation of the Constitution. Lincoln argued that with Congress out of session he was compelled to act. No other President before or since, save James Polk during the Mexican-American War, dared commit troops to a declared hostile action without the consent of Congress. Had Lincoln not acted decisively in that instance, the consequences would have been catastrophic for the North, Constitutional arguments from Taney aside.


Lincoln publicly accused Taney of being in league with Presidents Franklin Pierce and James Buchanan, and Senator Stephen Douglas, to legalize slavery throughout the United States, while a Senatorial candidate in 1858. While he had no proof such a conspiracy existed, Lincoln surmised there was no other explanation for the confluence of events that led to the passage of the Kansas-Nebraska Act, release of the Dred Scott decision, and Buchanan’s residence in the White House. Pierce fit into Lincoln’s conspiracy theory, because he preceded Buchanan and was an apologist for the South, even though born in New Hampshire. Such accusations were fighting words in Taney’s mind, sullying the reputation of the Chief Justice, and only fanned the flames of conflict higher. I can imagine Taney saying to himself “That little punk,” and Lincoln viewing Taney as a senile old geezer who needed to be retired from the bench. Any Republican who sought the White House would have been in immediate disfavor with Taney. When Seward had the early lead in the Republican race, Taney vowed he would refuse to swear him in. He made the same pledge when Lincoln emerged victorious and won national election. Whether he was pressured, or able to put his personal issues aside, Taney relented and did administer the oath of office to Lincoln.

Two thirds of the book is taken up by Simon tracing Taney’s and Lincoln’s paths before they finally cross. We get much more biographical information on Lincoln than Taney, and in this respect Simon doesn’t break any new ground. Simon repeatedly declares Taney’s legal genius, but I found myself saying, Ok, if you say so, because there’s little substance in the book beyond that statement to support this contention. I found a 1971 survey of lawyers, law school deans, judges, and legal scholars who ranked Taney the 11th greatest Supreme Court justice, and number five among Chief Justices. The top five justices, in order, were John Marshall, Oliver Wendell Holmes, Louis Brandeis, Earl Warren, and Hugo Black. Taney was sandwiched between John Harlan and Joseph Story, who interestingly resigned from Taney’s Court, reportedly due to poor health, but, in part, due to his own clashes with Taney over the issue of slavery and, in particular, the Dred Scott decision.

What Lincoln and Taney have further in common is that both met miserable ends. Lincoln by assignation, Taney bereft of family, teetering on the brink of poverty, and in extremely poor health at the time of his death. Where they differ, too, is that one rose above death to become one of our most revered and loved public figures, while the other’s loss was barely noticed by the nation. Lincoln paid brief respect at Taney’s wake, but did not attend the funeral. Neither did the Nation weep as a whole.

One of the final sagas to be attached to Taney’s legacy is one filled with irony. In the early 1990’s a Middle School in Ft. Washington, a part of Prince George’s County, Maryland, where Taney was born, changed its name from Roger B. Taney to that of Thurgood Marshall, the same Thurgood Marshall who served on the Supreme Court as an Associate Justice and, who successfully argued the Brown case before the United States Supreme Court 97 years after Taney ruled in the Dred Scott decision. In predominately African-American Prince George’s County, Taney remains a discredited and reviled figure. The State of Maryland, however, continues to honor Taney with a statue that adorns the State House lawn.

Still Simon’s book is a fascinating look at the struggle that ensued between the Judicial and Executive branches of government during Lincoln’s first term. Where the book is strongest is Simon’s ability to define the arguments between the two and for the reader to draw their own conclusions as to who, ultimately, was right. In some cases the reader may agree with Taney, in others with Lincoln. I suppose that would depend on the reader’s own personal biases, prejudices, social mores, and political ideology.