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When the Court Lost Its Conscience
The man behind Dred Scott, and his clash with Lincoln.

by ALLEN C. GUELZO
Tuesday, November 21, 2006 12:01 A.M. EST

Even the most reasonably literate American may find it difficult to name more than three of the past chief justices of the U.S. Supreme Court. But of those three, one of them will almost certainly be Roger Brooke Taney, the author, in 1857, of the court's most reviled decision, Dred Scott v. Sandford.

Born in 1777 into an Annapolis family that had held land and slaves in Maryland since the 1660s, Taney had what one fellow lawyer, William Pinckney, irritably called the "infernal apostolic manner" of a man born with a silver spoon in his mouth. But Taney was also a talented lawyer, rising in 1827 to become attorney general of Maryland; three years later, he was named U.S. attorney general by President Andrew Jackson.

It may seem odd to find Taney allied politically with Jackson, the paladin of the American common man. But the Jacksonian democracy was administered by the cream of America's planter aristocracy--and that included Taney. In 1833, Jackson declared political war on the Second Bank of the United States, a fight that was the keystone of Jackson's populist strategy to turn back the tide of the Industrial Revolution in America. And Taney was the only man in the president's cabinet who supported Jackson's move to defund the bank (by withdrawing federal tax-revenue deposits). The attorney general's reward was a Supreme Court nomination in 1834 and confirmation as chief justice in 1836.

In "Lincoln and Chief Justice Taney," James F. Simon, who teaches at New York Law School, finds the roots of Taney's opinions as chief justice in this passionate embrace of Jacksonian democracy. And to give it particularly sharp contrast, Mr. Simon plays Taney's career against the career of the man with whom Taney was doomed to collide: Abraham Lincoln. Nearly everything about Lincoln ran in the opposite direction to Taney's universe, and they ultimately came to smash over slavery. It was Lincoln's abiding conviction that slavery was a violation of natural law, an iniquity that the Framers of the Constitution had intended to tolerate only long enough for it to die out peaceably. The federal government was obliged, Lincoln thought, to prod the process along with every weapon short of direct interference in the slave states.

For Taney, black slavery was precisely what guaranteed the white man's paradise so beloved of the Jacksonians. Although Taney had actually emancipated his own family slaves, he fully expected that Congress would descend into legislative paralysis the moment it began debating the morality of slavery. When it did, in the 1850s over the question of whether Congress could restrict the spread of slavery into the Western territories, Taney used the appeal of a Missouri slave, Dred Scott, to settle the controversy by judicial fiat.

The opinion Taney wrote for the majority in Dred Scott not only guaranteed slaveholders' ability to move slavery into the territories but also tacked on the gratuitous announcement that blacks were incapable of rising to the level of citizenship and therefore had no rights, under the Constitution, that could be violated by enslavement.

This unwillingness to see anything wrong in slavery galled Lincoln, and when he was inaugurated as president in 1861 (with Taney administering the oath of office), Lincoln made brutally clear that his administration would not allow slaveholders to convert the territories into slave states. What followed, of course, was the Civil War. And almost as if Taney had no vision larger than the triumph of his own party, he used every legal wrench he possessed as chief justice to try to obstruct and cripple the Union war effort.

When Union soldiers arrested a Confederate recruiter in Maryland, Taney attempted to spring him with a writ of habeas corpus. When blockade runners sued the federal government for seizing their cargoes, Taney tried to muster enough votes on the court to declare the blockade unconstitutional. He wrote memoranda denouncing Lincoln's Emancipation Proclamation, the military draft and the administration's war-finance measures; Taney then waited for appeals that would allow him to issue these memoranda as opinions. As Mr. Simon shows, the man who fashioned the legal weapons that armed Andrew Jackson against the Second Bank now denied another president the authority, as commander in chief, to save the Union.

Mr. Simon's long suit is his easy way with the complexities of 19th-century jurisprudence. As sympathetic as he struggles to be with Taney as a man, Mr. Simon leaves little doubt that Lincoln's "broad exercise of executive power during the Civil War" properly balanced "the legitimate security needs of the nation under siege" against the "individual rights of its citizens."

On the other hand, Mr. Simon is less sure of himself in writing about Lincoln's life and the Civil War. His chapters on Lincoln are so dense with detail that it is difficult to know which parts are relevant to the coming conflict with Taney. The author's account of the Civil War years is pocked with simple errors: The Union commander at Stones' River was William Starke Rosecrans, not Rosencrans, for instance, and Gen. George McClellan was stripped of overall command of the Union armies in March, rather than July, 1862.

And Mr. Simon misses an important opportunity to ask whether, in the long run, Taney's collision with Lincoln is proof that politics will always trump constitutional theory when it comes to deciding the fiercest of our controversies. We like to expect a lofty impartiality from our judiciary; in practice, we have hardly ever gotten it. Taney's early years as chief justice, writes Mr. Simon, were marked by a "careful, pragmatic approach to constitutional problems." But once issues with real political cash-value arrived on his docket, Taney could not resist a "rigid march to his doctrinaire conclusions."

Still, "Lincoln and Chief Justice Taney" is a forceful reminder that the Civil War was more than a conflict of soldiers and that, under the rule of law, the decisions of courts could make fully as much difference--and be fully as much of a struggle--as the results of battles.

Mr. Guelzo, the author of "Lincoln's Emancipation Proclamation," is the director of Civil War Era Studies at Gettysburg College in Pennsylvania. You can buy "Lincoln and Chief Justice Taney" from the OpinionJournal bookstore.