I write this short article on March 7, 2016, the first business day after the March 6, 2016 anniversary of Scott v. Sandford, 60 U.S. 393 (1857). This morning I revisited the overwrought Opinion of the Court and the concurring and dissenting Opinions covering 240 pages. The Scott case included a controversy as to whether Dred Scott, born into slavery, could sue in federal court as a “citizen” of Missouri. Conceding that a slave was not a “citizen,” Scott asserted that he became free when transported (by his master) to a “free” state and that he remained free when transported back to the “slave” state of Missouri.
In his Opinion of the Court Chief Justice Taney explained the central jurisdictional issue:
“The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.” 60 U.S. at 403.
Scott’s “catch-22” was that he could not sue in the United States Courts to establish his freedom without satisfying the jurisdictional prerequisite of already being free.
Chief Justice Taney found it prudent to explain how the “self-evident” truth (from the Declaration of Independence) “that all men are created equal” was meant to exclude slaves of African descent. He made the distinction in a manner so disturbing that it should shame every lawyer and every devotee of Constitutional government:
“The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.” 60 U.S. at 410.
While seeing fit to hold Dred Scott ineligible for citizenship, Chief Justice Taney and his majority also declared unconstitutional that 1820 federal legislation known as the Missouri Compromise, which had as its purpose the prohibition of slavery in most of the Louisiana Purchase territories.
The point of this Article is that it matters who is appointed to the Supreme Court of the United States. The current relevance of that point springs from the vacancy on the Supreme Court resulting from the death of Justice Antonin Scalia.
Since my Article of February 19, 2016 addressing the Supreme Court vacancy, President Obama has (pleasantly) surprised me by actually seeking the advice of the Senate. President Obama floated the idea of nominating a Republican governor to fill the vacancy and then met with Republican Senators Mitch McConnell and Chuck Grassley, who are said to have confirmed their pledge to give no consideration to any Obama nominee.
The official opinion of the Calumet Law Blog is that President Obama has fulfilled his constitutional duty of seeking advice of the Senate and that the blame going forward lies squarely on the shoulders of Senate Republicans who risk their majority by such a public display of their vile nature.
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