Justice Breyer Mangles Dred Scott

Matthew J. Franck's vivisection of a 2009 speech given by Associate Justice Stephen G. Breyer on the Dred Scott decision is too funny to miss. Here's a taste:

But declining to publish the 2009 lecture “A Look Back At the Dred Scott Decision” would have been a service to the author, Justice Stephen G. Breyer. It appears in the latest issue, which I recently received, and Breyer’s lecture is, quite simply, an embarrassment. I am inclined to believe that no clerk helped him with it, since any recent law school graduate from a top school should have done a better job. The lecture contains elementary errors of fact, makes at least one attribution of an argument to a justice in Dred Scott which is entirely inaccurate, and plods to a set of conclusions that are suffused with banality. If I were to grade this piece of work as a term paper by an advanced undergraduate, I’d give it a C- if I were in a good mood.

The editors could have saved Breyer from such boo-boos as typing “1817″ in one place and “1859″ in another for the date of the Dred Scott decision (it was 1857), and they could have silently corrected one subject-verb disagreement and his omission of the third “e” in Horace Greeley’s name. More importantly, they could have rescued Breyer from the absolute howler of telling us that three justices dissented in Dred Scott, when there were only two who did so. Readers who think I’m making a mountain out of a molehill should consider that, in the field of constitutional law and history, Dred Scott is the most famous 7-2 decision of the Court until Roe v. Wade. It’s a mistake rather like saying that in 1858 the prairie of Illinois echoed to the sound of the Lincoln-Douglas-Buchanan debate. You’d kind of lose your cred as a Lincoln buff if you said this. And it’s not a one-time slip: Breyer makes this error three times in the published lecture. He discusses the dissent of Benjamin Curtis at some length (not that he really understands it well), but never names the other two who he thinks dissented. Okay, Mr. Justice, it was John McLean and . . . Anyone? anyone? This is a blunder that could have been avoided by relying on Wikipedia, for pete’s sake.

Can it get worse? Yes, this is a disaster on many levels. At one point Justice Breyer attributes to Justice Curtis an argument about the due process clause that Curtis never makes:

"Nor could 'due process of law' mean that a slave remains a slave when his master moves from, say, slave state A to live permanently in free state B. What law would then govern the slave, the slave’s wife, his house, his children, his grandchildren? State B has no such laws. And State B’s judges could not work with a proliferating legal system under which each slave, coming to B, brought with him his own law, from A or from C or from whatever other slave state he happened to be from."

This might just be an interesting argument, if Curtis had ever made it. But he didn’t. And he didn’t for the very simple reason that the due process clause at the center of the Dred Scott case was in the Fifth Amendment (the Fourteenth was added 11 years later partly in response to Dred Scott), and the Fifth Amendment only dealt with the question of what protection one’s life, liberty, or property had under federal law, whereas Breyer is nattering on here about what would happen under this or that regime of state law, which the Fifth Amendment’s due process clause could not affect. Ah. Never mind, then.

The speech, published in the Journal of Supreme Court History, does not appear to be available online. However, what I presume to be a modified version of the speech, delivered on April 21, 2010 to the New-York Historical Society, is available.

In the revised version, Justice Breyer appears to have cleaned up some of the howlers identified by Mr. Franck. However, Justice Breyer continues to identify arguments that Justice Curtis never made; he has apparently not yet figured out that there were only two Dred Scott dissenters ("Still Curtis and two others were in dissent. The Court’s majority of six had prevailed."); and he still can't spell Horace Greeley's name.