The Leak in Dobbs & Reflections on Dred Scott

Should the Court refrain from issuing far reaching and divisive rulings when the political environment is hyper-polarized?

There’s no doubt that the leak of a draft ruling in Dobbs this week was a historic event. Of course, the real issue is the possibility of the Court overturning Roe. But taken together the leak and the substance of the leaked draft bring to mind the time that President Buchanan effectively leaked the ruling in Dred Scott - an infamous, far reaching case where the Court denied free Black persons U.S. citizenship, and prohibited Congress from “interfering” with slavery. The ruling infuriated Republicans, drove a wedge into the divide between pro-Union and secessionist Democrats, caused Justice Curtis to resign in protest — the only time this has ever happened - and very much paved the path to Civil War.

It was an absolutely, unequivocally horrible decision by the Court, and not just because its conclusions are so profanely offensive to modern sensibilities. The decision was so far reaching, and how the Court arrived there was so absurd, that became an obvious attempt to cloak a political victory for Slave Power in the legitimacy of neutral and disinterested jurisprudence.

Buchanan’s leak didn’t help in this regard, either.

It was 1857, and the question before the Court was whether an enslaved person named Dred Scott gained his freedom, when he traveled with his owner from Missouri (a slave state) to Illinois (a free state) and the Louisiana Territory (where slavery was prohibited by the Missouri Compromise Act of 1820).

The Court answered this question in two pretty ridiculous ways, and then ventured far further. It started by saying that, as the descendant of a slave, Scott could never be a U.S. citizen. Therefore, Scott didn’t even have standing to sue in federal court. So the Court decided against Scott on procedural grounds, while eliminating the possibility that the descendants of African slaves, whether enslaved or free, could ever gain U.S. citizenship.

In other words the Court dropped a total bombshell before even reaching the merits of the case. Maybe it would have made sense to stop there??

The Court definitely should have stopped there. But instead it trudged deep into the substance of the case, despite lacking jurisdiction by its own admission, to hold that Scott’s travels and temporary residencies in free states and Territories did not render him free.

Why?

Because the Missouri Compromise Act of 1820 was unconstitutional, as an Act of Congress that prohibited slavery in the northern Louisiana Territories, and that prohibited slave owners from bringing their “property” a.k.a trafficking their humans there. Notably, the Missouri Compromise Act of 1820 had already been effectively repealed three years earlier by the Kansas-Nebraska Act of 1854.¹ But to make a point about Congress’s authority, or lack thereof, to regulate slavery, the Court held that it was unconstitutional anyway.

So at this point the Court has (1) denied U.S. citizenship to free and enslaved persons (anyone who was a descendant of an African slave), (2) decided against Scott on procedural grounds, (3) invalidated an Act of Congress, and (4) prohibited the federal government from regulating slavery in non-state Territories.

Now even though that’s astronomically far reaching, the proverbial cake still needed its icing.

Completely on its own expedition at this point, going well beyond the Missouri Compromise Act of 1820, without reference to any law involved in Scott’s case, or any law that had even been enacted at the time, The Court held that Congress was prohibited from regulating slavery anywhere.

“The Government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think…”

To provide a contemporary example of just how absurd this was, imagine that the final majority opinion in Dobbs not only reverses Roe, but also preemptively prohibits Congress from regulating abortion. As in, “No statutory analysis will be necessary. Don’t even try because whatever you enact will be unconstitutional. Any legal process that brings the law before us will be futile.”

Now that was far reaching. Extremely, galactically, Declaration of Independence-far reaching. “Not only are we settling all of the disputes once and for all, but also everything is going to be different from now on.”

And the end result may sound familiar… “Leave it up to the states. Leave it all up to the states.”

Now, whether the federal government would intervene to regulate slavery was by far the most divisive, deeply destabilizing political question of the time. It was at the core of whether or not the U.S. would survive as a unified sovereign. And the Court essentially decided it without notice, because remember, it really wasn’t an issue in Scott’s case. Here’s an example of what that would be like:

Imagine the Court has an immigration law case, and the question is whether an immigrant who was issued a green card after marrying a U.S. citizen was now eligible for citizenship. The marriage was a same sex marriage, and this fact is part of the record in the case, but it is irrelevant the the immigration-law issue involved. Obergefell is not at issue. It has not been briefed by the parties. Nobody is expecting a decision that touches on Obergefell.

Yet the Court uses the case as a vehicle to overrule Obergefell, declaring that the immigrant’s path to citizenship was tainted by an unlawful same-sex marriage; that the immigrant, along with any other similarly situated immigrants, will have to start over on their paths to U.S. citizenship; and that all same sex marriages in states that prohibited same sex marriages before Obergefell were annulled.

People would be beyond shocked, devastated and outraged. “Wait, wasn’t this an immigration case that didn’t have anything to do with me, and now my whole life is different?!”

That’s basically what happened in Scott. For some insane reason Chief Justice Taney thought it would be a good idea for the Court to settle the so-called slavery question once and for all, and in this patently ridiculous, obviously political way. Some historical sources suggest that Buchanan pressured Taney to do it. Some say that Taney did it on his own and Buchanan was tipped off in advance. Either way, it’s clear that Buchanan knew the substance of the ruling before it was announced, and that he thought this approach to resolving the slavery question was a good idea, too.

During his inaugural address, and two days before the Dred Scott ruling was announced by the Court, Buchanan signaled his support for the ruling by saying: “all agree that under the Constitution, slavery in the States is beyond the reach of any human power, except that of the respective States themselves wherein it exists…”

Actually, literally nobody agreed on this point. And the People were not appeased by the supposed Wisdom of the Court; they did not accept the decision as the product of neutral and disinterested jurisprudence as Taney and Buchanan had hoped. The country dove into a deep economic recession, Republicans flipped the White House by electing Lincoln, seven southern states seceded before Buchanan’s term ended, and there was a gruesome Civil War, the legacy of which lives on over 150 years later in our everyday lives, social relations, institutions, and politics.

The somewhat happy ending doesn’t come until more than ten years after Dred Scott, when this horrible ruling was superseded by the enactment of the Fourteenth Amendment. But even now, there are deep divisions over what the Fourteenth Amendment means; who and what it protects, why and how. That was this issue in Roe; that is the issue in Dobbs.

What’s the moral of the story here? Why does the leaked draft ruling in Dobbs bring all of this to mind?

Honestly, I don’t know for sure. It does make me worry that our country is heading down a path similar to the one we were on in 1857, where critical policies that define our national identity are being handed back to the states. I worry that if this continues, divisions will deepen because there won’t be much substance to our shared identity. Instead of growing together we will grow farther and farther apart.

Of course, the judiciary is not supposed to be a political branch, and judges are supposed to decide without fear of public clamor or controversy. But perhaps there is still an element of judging that necessitates “reading the room,” so to speak. Does it promote confidence in the legal system, with an independent, disinterested, neutral judiciary at its center, for the Court to issue a far reaching ruling that significantly changes the status quo, at a time like now when partisan divisions are so deep? Or ever for that matter?

Is the nation ready, at this particular time in our history, for such a substantive change to our original law, as it currently stands, to be handed down by a divided Court? Would that be Wise? Should it even matter?

[1]: The Kansas-Nebraska Act of 1854 provided that “popular sovereignty” or a statewide vote would determine whether newly formed states from the Louisiana Territories would prohibit slavery. This policy replaced the policy of the Missouri Compromise Act of 1820, which prohibited slavery in the northern parts of the Louisiana Territories.

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Elected, Independent, District Judge in Pittsburgh, PA. Access to justice is essential to a vibrant and equitable democracy. he/him/his

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Mik Pappas

Mik Pappas

Elected, Independent, District Judge in Pittsburgh, PA. Access to justice is essential to a vibrant and equitable democracy. he/him/his

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