As a general rule high school students are aware that there is a Supreme Court in the United States. Most will agree that it is important and that it has some kind of power. They will recite the mantra repeated since elementary school that “the legislative branch makes the law, the executive branch carries out the law, and the judicial branch interprets the law”. Very few, however, will understand what is meant by “interpret the law” and most will be surprised to learn that the Court can “make the law” as well. Many students are aware in a general way that the Supreme Court has ruled on some important issues that have played a role in their lives -- abortion, segregation and the rights of the accused to name a few -- but they have little understanding of how and why the Court has decided such issues. Very few will be able to name even a few of the current members of Supreme Court and only the most dedicated political junkie will be able to name them all.l.
There are very good reasons for this level of ignorance (which is merely a reflection of the same level of ignorance found in the general public). The Supreme Court is an unusual institution in American government and its modes of operation are puzzling to the layman and often defy simple explanation. Unlike the other government leaders, its members avoid the media and appear there infrequently. Except when they are up for confirmation or when they resign or die, their personal lives are not the subject of public attention or debate. Aside from the clues gleaned from questioning during oral arguments (and usually reported only in high brow media such as NPR or the New York Times), the public has little idea of the discussions and debates that go on between justices or of the political perspectives of the individual justices. The only official record of its actions are the majority, concurring and dissenting opinions that are usually written in a legalistic style that most Americans find difficult to fully comprehend. This is of course just how the Court wants it. The justices are meant to be seen, not as opinionated, fallible, emotional, ordinary human beings, but as highly skilled practitioners of a legal craft that is somehow outside of politics and based entirely on essential legal principles that by definition have intrinsic value.
It should not be difficult to appeal to the teenager’s naturally cynical and rebellious nature and encourage them to tear down this veil of seemingly mysterious power. Most will be excited to disobey the command “to pay no attention to the man behind the curtain” and consider how these extraordinary, but still human, individuals arrive at their decisions that can have such a significant impact on our lives. Although a proper examination of the Supreme Court can and should take place in a civics class, the first opportunity to do so in a student’s high school career usually occurs in U.S. History I which, in New Haven, is generally taught in the tenth grade. It is in this course that the Constitution is considered within the historical context of its creation. The time pressure of the curriculum usually allows for only a cursory examination, focusing mostly on the compromises required at the Constitutional Convention, the separation of powers (when the mantra is repeated again) and checks and balances. The role of the Supreme Court is usually not really considered in any detail at this point in the course because in 1787 and for many decades afterward the role of the Court was not fully defined.
At first it may appear that the Dred Scott Case is not the best avenue to a better understanding of the Supreme Court. It was decided at a time when the nation was riven by sectional differences that have no real parallels in recent times. Chief Justice Roger Taney’s “Opinion of the Court” which was rendered on the case has been almost universally derided ever since as a bad decision -- the product of an overly ideological and reactionary judge relying on poor scholarship and weak legal reasoning in an effort to shape public policy 1. The case has no precedential value since actions by Congress, the executive branch and state governments soon reversed the decision 2. The only reason justices have cited the case since then has been as an example of bad law. In 1896, for example, Justice Harlan attacked the majority opinion in
Plessy v. Fergusson
as being no more legitimate than
and Justice Antonin Scalia did the same in a decision from which he was dissenting in 1992 3.
It is precisely because of its notoriety, however, that the Dred Scott case provides an opportunity for high school students to consider the power of the Supreme Court, its potential misuse, and its limitations. The case arose at a time when the Court could conceivably have played the role of a powerful arbiter to settle once and for all the issues that were tearing the nation apart. For many Americans of that time, and for many more today, the Court was and is an institution above politics empowered by the Constitution (admittedly with some ambiguity) to settle disputes by rendering decisions based on the essential American values upon which Americans are supposed to agree. Theoretically its power is absolute and once a decision is handed down, the other branches of government and the state government have no choice but to comply. This of course is not the case. Despite its theoretical power, the Court must operate within the political and social constraints of its time. The Dred Scott case provides an excellent illustration of what happens when the Court overreaches and brazenly attempts to enter the political realm. The vigorous public reaction and the responses of political leaders help to demonstrate the impotence of the Court in attempting to force a resolution on the question of slavery.
as a window on the contemporary role and function of the Supreme Court presents particular challenges, but should still be attempted. All of us teaching history in high school regularly seek to emphasize the relevance of our subject matter to our students as a tool for understanding the present and providing the basis for making decisions about the future. The role of a particular aspect or action of government, the struggles over social issues, the development of political culture and the impact of economic change in history all should be compared to what we face today. Often the mere exposure to particular concepts or institutions within an historical context will spark student interest in analogous issues in contemporary life. A unit on
therefore should include some consideration of a recent Supreme Court Case that can be used as a point of comparison.
Students will identify and explain the political conflicts over slavery in the territories including:
- the effects of the Mexican Cession
- the Wilmot Proviso
- the Compromise of 1850
- the Kansas-Nebraska Act
Students will provide examples of the degree of political deadlock on the issue of slavery in the U.S. Congress.
Students will outline the essential elements of Dred Scott’s life that were the basis for his claims to freedom.
Students will research, write and present arguments to support Scott’s suit.
Students will research, write and present arguments to deny Scott’s suit.
Students will articulate the reasoning used by Justice Taney in denying Scott’s claim.
Students will critique the reasoning in Justice Taney’s opinion.
Students will identify the positions taken in various newspaper editorials written in response the Scott case.
Students will identify the positions taken by Abraham Lincoln and Stephen Douglas on the Scott case in their debates.
The Dred Scott Case
What follows is a very brief synopsis of the case emphasizing the key points that are especially important and thematically related to the basic themes of a survey course in U.S. History I (to 1877). For a slightly more detailed version, I recommend
Dred Scott v. Sandford: A Brief History with Documents
by Paul Finkelman, a mercifully slim volume upon which I have based this account
The book includes excerpts of many of the primary source documents associated with the case (see bibliography).
Dred Scott was a slave who sued for his freedom in Missouri state court in 1846. He claimed that he, his wife, Harriet, and his two daughters were entitled to freedom because he (and later his family) had been taken to live by his owner first to the free state of Illinois and later to the Wisconsin Territory where slavery had been forever banned by the Missouri Compromise of 1820. After numerous delays the case went to trial in 1850 and a jury found him free. The judge had instructed the jury that Scott’s status as a slave would be destroyed by his residing in a free jurisdiction which was consistent with Missouri precedents dating from 1824. In 11 other cases Missouri courts had freed slaves on similar grounds as had several other slave states including even Mississippi. Scott’s owner (now the widow of the man who took him into Illinois and Wisconsin) appealed the decision to the Missouri Supreme Court.
In 1852 Missouri’s highest court reversed the lower court’s decision and ruled that Dred Scott was still a slave. In an overtly political opinion, the Chief Justice stated that “times are not now as the were when the former decisions on this subject were made.” He went on to say that due to the “dark and fell spirit” of the antislavery forces in the country, Missouri had to take an unambiguous stand and not take any steps that “might gratify this spirit.”4 Thus the court foretold the final result of the case by ignoring precedent and legal reasoning in order to arrive at a decision driven by political necessity.
At this point Scott and his family were now controlled by John Sandford, a prosperous New York merchant and the brother of the previous owner’s widow. Now that the case had become a dispute between citizens of different states, Scott’s lawyers had the opportunity to sue in federal court, a right provided for in the Constitution (article III, section 2, paragraph 1). When, in 1854, the case came before federal district court in St. Louis the first issue to be decided was one that played a major part in the final opinion: the question of whether Dred Scott was in fact a citizen of Missouri or the United States. If, as Sandford’s lawyers argued, the fact that he was black meant that he could not be a citizen, the federal court had no jurisdiction. The presiding judge rejected this reasoning and the case went to trial, but he instructed the jury that Scott’s status was to be determined by Missouri law. As the Missouri Supreme Court had already spoken on the issue, the jury found that Scott and his family were still slaves.
It was not until February 1856 that Scott’s case was finally argued before the United States Supreme Court. In the interim, “bleeding Kansas” has served to raise the tensions over slavery in the territories to a fever pitch and in hindsight it appears inevitable that political concerns would weigh heavily on a case such as this. Sandford was able to retain as his attorney Missouri’s proslavery Senator and one of the most experienced constitutional lawyers in the country who also happened to be a good friend of Chief Justice Roger B. Taney. Scott’s supporters were able to find a free soil Democrat willing to take the case, but he was unable to find other attorney’s to assist him. It is apparent that the antislavery movement did not see this case as significant, assuming that the Court would rule on narrow grounds that Scott was still a slave. The idea that the Court would weigh in on questions relating to the power of Congress, the rights of states, the rights of individuals, and the rights of property owners -- all questions which lead back to the Constitution -- seem obvious today, but few foresaw that such action was imminent, at least not with this case.5
As it was, the Court did begin to give signs that it was to make a significant ruling as it called for reargument on crucial questions in December and declined to render a final decision until after the 1856 presidential election. The idea that the Court had intentionally delayed the case in order to avoid giving the Republicans ammunition and insure the election of James Buchanan was promoted by Lincoln in his “House Divided” speech and further reveals the intensely partisan nature of the case. The ruling in the case was finally announced on March 3, 1857, two days after Buchanan was inaugurated. Keeping in tune with the election of a proslavery president, the decision put the federal government in the positions of fully protecting the rights of slaveholders and releasing it from any obligation toward those of African descent.
Chief Justice Taney wrote the “opinion of the Court” in this case and, despite the fact that he did not have the support of the majority of the justices on all of his points, his opinion was and still is considered the “Dred Scott decision”. Six other Justices certainly concurred that Dred Scott and his family were still slaves, but Taney went further. He declared that people of African descent were inherently inferior, were considered to be so by the framers of the Constitution, and therefore could not be citizens of the United States or any of the individual states. He also ruled that Congress had no power exclude slavery in the territories and declared the Missouri Compromise and any other legislation that sought such an exclusion to be unconstitutional.6
Reaction to the opinion was understandably intense and divided. Rather than serving to keep slavery out of national politics, the decision only served to exacerbate divisions and bring the nation one step closer to the final break. On a basic political level, the ruling had essentially removed the issue upon which the Republican Party was based: free soil. To northerners of all political stripes it appeared to be one more example of how the “slave power” had come to dominate the national government -- that it would no longer be neutral on the issue of slavery, but would now actively promote it. The variety of reactions to the decision -- newspaper editorials and speeches -- provides an excellent perspective on how people viewed not only the questions of slavery and black citizenship, but also the power and the role of the Supreme Court.rt.