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.

James Buchanan Declines the Supreme Court: Was Polk Suprised?

In my recent post discussing President James K. Polk's offer to nominate James Buchanan to the Supreme Court in 1846, I inferred that Polk was not surprised when Buchanan declined the offer on Saturday August 1, 1846. I have located Polk's diary entry describing his meeting with Buchanan that day, and he certainly does not sound surprised. Apparently confirming this, Polk had already done his homework on an alternate nominee, and was prepared to nominate Robert C. Grier:

Mr. Buchanan called about 6 O'Clock P. M. [on August 1, 1846] and informed me that he had decided to remain in the Cabinet and not to accept the offer which I had made him to appoint him Judge of the Supreme Court. He said that he did this cheerfully, although he had long desired a seat on the bench, and that now he would stick to me & go through my administration with me. I then told him that I would nominate Judge Greer [sic] of Pittsburg to the vacant seat on the bench on monday next [i.e., Monday August 3, 1846]. He replied that he would be entirely satisfied with Judge Greer's [sic] appointment.

I can almost hear Polk groaning when he listens to Buchanan announcing "that now he would stick to me & go through my administration with me."

The illustration is courtesy of Pop Art Machine.

Associate Justice James Buchanan?

Did you know that James Buchanan almost became an Associate Justice of the United States Supreme Court in 1846? I didn’t either. Robert W. Merry tells the unlikely tale in his interesting and enjoyable biography of James K. Polk, A Country of Vast Designs.

The story begins two years earlier, with the death of Associate Justice Henry Baldwin in April 1844. Wikipedia reports that President John Tyler made two nominations before he left office in March 1845, both of whom were rejected.

In December 1845, president James K. Polk nominated George Washington Woodward to the vacant seat. Polk considered Woodward, a Pennsylvanian then serving as a Pennsylvania state court judge, as a “sound, original, & consistent democrat, of the strict construction school.” Baldwin had been from Pennsylvania, and I assume the Polk selected Woodward to preserve the seat for the politically important Keystone State. (Both of President Tyler’s rejected nominees had also been from Pennsylvania, making pretty clear that both parties regarded the position as reserved for that state.) Perhaps finding a worthy member of the Pennsylvania bar also accounts for Polk's delay.

James Buchanan – another Pennsylvanian – was serving at the time as Secretary of State. Polk’s leading cabinet officer was also the most annoying. Buchanan, with his eye constantly on future advancement, provided advice that shifted constantly with the political winds. On Oregon, for example, he was initially dovish, urging the president not to risk war with Great Britain. When he perceived, however, that Lewis Cass of Michigan was riding a groundswell of popularity by urging an aggressive stance, Buchanan performed a dramatic about-face and attempted to erase evidence of his earlier position.

The politically sensitive Buchanan vehemently objected to Woodward’s nomination, and late on Christmas evening, 1845, Buchanan went to the White House to complain to the president. In faction-riven Pennsylvania, the Democratic faction led by Buchanan and Simon Cameron considered Woodward an enemy. “The secretary complained bitterly that Polk had not alerted him in advance and accused Polk of undermining his political standing in Pennsylvania with numerous adverse patronage decisions,” a charge Polk vehemently denied.

Supreme Court nominations were acted on far more quickly in those days. Within a month, on January 22, 1846, the Senate voted on Woodward’s nomination – and rejected him by a tally of 20-29. Circumstantial evidence suggested that Buchanan and his crony Simon Cameron were largely responsible for the administration’s embarrassment:

The entire Whig caucus had voted against [Woodward], along with six Democrats – Cameron, [Thomas Hart] Benton [of Missouri], Ambrose Sevier and Chester Ashley of Arkansas, and David Yulee and James Westcott of Florida. Polk knew Cameron, Sevier, and Westcott were intimate friends of Buchanan, presumably susceptible to entreaties from the secretary to support the president. Clearly, Buchanan had not supported the administration in its hour of need.

In fact, it was worse than that. It appeared that Buchanan had been angling for the Supreme Court position himself and had engineered Woodward’s defeat in order to position himself as the next nominee:

Worse, Polk heard that Buchanan had expressed hopes of getting the job even before the Woodward vote. “The information given me . . .,” wrote Polk to his diary, “left the painful impression that Mr. Buchanan has been willing to see . . . Mr. Woodward rejected by the Senate in order to obtain the office himself.” Later that evening the president received visits from Vice President [George M.] Dallas, Senator Daniel Dickinson of New York, and [William] Allen of Ohio. They were indignant. The six errant Democrats had ignored all arguments in favor of the highly qualified Woodward, they reported, and voted simply for political effect. Cameron was the apparent ringleader, they said, and immediately after the vote rumors began floating across the Senate floor that Buchanan would be the next nominee. Sure enough, Polk shortly received a letter from Benton recommending Buchanan for the job.

Privately, Polk was irate, but he did not confront or take action against Buchanan – part of a strange pattern in which the president seemed reluctant to take on his disloyal cabinet member.

Things took a strange turn five months later. Although Polk had vowed that Buchanan would never get the judicial position he apparently wanted, on June 10, 1846, Polk offered his secretary of state the vacancy. Polk never explained why, and his motives must therefore remain a mystery. Perhaps he viewed it as a graceful way of booting the every-annoying Buchanan out of the cabinet. Even if Old Buck declined the offer, perhaps he would display a little more loyalty to his chief. Placating the irascible and unpredictable Benton was crucial to Polk, and perhaps that also played a role.

At all events, Buchanan appeared delighted by Polk's offer, and on June 28 he reported that he would accept the nomination.

After that, strange became bizarre. First, Polk and Buchanan disagreed as to the timing of the announcement of the nomination. On July 1, Polk told Buchanan that he would send the nomination to the Senate shortly before Congress was scheduled to adjourn (roughly the beginning of August, one month hence). Polk apparently wanted the Senate first to focus on and deal with pressing policy matters. He may also have felt that an early nomination would only give Buchanan’s enemies time to rally their forces.

Buchanan, in turn, pushed for an immediate nomination, suggesting that intervening international events might preclude his departure from State.

Apparently sensing that Buchanan’s mind was not entirely made up, on July 12 Polk tried to force the issue by seeking Buchanan’s approval to send a letter to U.S. ambassador Louis McLane in London with an offer to become Buchanan’s successor. Buchanan suggested that Polk refrain from sending the letter, since he (Buchanan) might change his mind.

Finally, on or about August 1, Buchanan “stunned Polk with the news” that he would decline the Supreme Court offer and remain in the cabinet. Since timing was no longer an issue (Congress was scheduled to adjourn in a week), Buchanan’s motivation is unclear. Merry suggests that Buchanan may have been concerned that he might face considerable opposition that might damage his political reputation. It may also be that he simply concluded that remaining at State provided the most likely path to the presidency.

Although Merry characterizes Polk as “stunned” by Buchanan’s decision, I suspect he fully expected it, because he seems to have been prepared with another candidate. It appears that Polk immediately nominated yet another Pennsylvanian – a relatively obscure state trial court judge by the name of Robert C. Grier. Grier was unanimously approved by the Senate on August 4, 1846 – only three days after Buchanan had turned down the job.

Both the unanimous vote and subsequent events suggest that Grier was acceptable to Buchanan, and at least that Buchanan did not regard him as a political enemy, as he had Woodward. Alert readers may note that, in the run-up to the Supreme Court’s issuance of its decision in the Dred Scott case in March 1857, Buchanan did not hesitate to write to Grier to urge him to join the southern majority on the Missouri Compromise issue. Grier, in turn, promptly responded to Buchanan that he was prepared to rule in a manner that would accommodate the wishes of the president-elect.

As long-time readers know, I like a good what-if, and this suggests a really good one. Buchanan may have imagined that a Supreme Court justiceship might have served as a stepping-stone to the presidency, but that was unprecedented. If Buchanan had been on the Court in 1856 and unavailable, for all practical purposes, as a potential nominee, who might the Democrats have nominated in his stead? As I recall, the Democrats selected Buchanan that year because he was about the only person of any stature they could find who had not taken a stand on Stephen A. Douglas’s Kansas-Nebraska Act. (The fact that he was from the crucial state of Pennsylvania was also a big plus.) Who else would have satisfied that criterion? And if the Democrats had selected a more divisive candidate (Douglas, for example), might Republican John C. Fremont have been elected? And then what? Civil War in 1857?

Justice Kennedy Says, "Ouch!"

I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at ___ (slip op., at 24). Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

Nino Scalia.

"She was bleeding profusely from the vaginal area"

If I were a legislator, I am not sure whether I would vote for the death penalty for any crime. There are legitimate reasons to believe that, on balance, life imprisonment in solitary confinement just might be sufficient: the expense and interminable appeals that death penalty cases inevitably generate; the possibility of misidentification.

But the idea that the death penalty is morally inappropriate for certain crimes is not merely ludicrous; it is offensive. Many others will spill volumes of ink over the Supremes' latest death penalty decision. I will let two excerpts speak for themselves. The first, from the majority opinion, is simply a sanitized version of the facts. The second is the beginning of Justice Alito's dissent:

The majority:

When police arrived at [defendant's] home between 9:20 and 9:30 a.m., they found L. H. [defendant's eight year old step daughter] on her bed, wearing a T-shirt and wrapped in a bloody blanket. She was bleeding profusely from the vaginal area. . . . L. H. was transported to the Children’s Hospital. An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery.

The dissent:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Ante, at 8, 15, 16 (citation omitted). Because neither of these justifications is sound, I respectfully dissent.

A person who believes that death is a morally unjustified response to such depravity has truly lost his humanity.

Ableman v. Booth IX: The Fugitive Slave Act of 1793

One counter-argument that Justice Smith addressed was the fact that in 1793 the Second Congress had passed the Fugitive Slave Act of 1793. Although the 1793 Act imposed fewer burdens than the 1850 Act, it clearly assumed that the federal government had power to deal with fugitive slaves – and thus strongly suggested that the founding generation believed or assumed that the Fugitive Slave Clause granted that power to Congress. Again, I strongly suggest that you take a look at my earlier post discussing Prigg v. Pennsylvania and the 1793 Act.

Justice Smith clearly struggled with this issue. In the end, his explanation is not persuasive. In fairness to him, it may be that there is no convincing explanation. He stated:

“The law of 1793 was in fact but little, if any more than organizing the state authorities for the constitutional duties devolved upon them. For that very reason, it passed without scrutiny . . .. It was practically nothing more than the states themselves carrying out the constitutional compact. Not until it began to be required that the states should yield up all control over these subjects, and a prostration of their sovereignty was demanded, did attention become aroused. No importance, therefore, can justly be attached to the fact that this act was passed by an early congress and was signed by the father of his country, and was acquiesced in by the states and people. It is a remarkable fact that the most startling deviations from strict constitutional limits occurred in the very earliest years of the republic. So it must always be. But time, discussion, and experience have heretofore proved adequate correctives. Added to these, state sovereignty jeopardized, federal encroachment apprehended, and consolidation menacing, can hardly fail to accomplish the desired ends.”

Ableman v. Booth I

I haven't finished with Lemmon v. People yet, but I'm enjoying reading and writing about pre-War state court opinions that shed light on attitudes about slavery and the roles of the state and federal governments. I thought another interesting project would be to look into the state court decisions underlying the United States Supreme Court decision in Ableman v. Booth, 62 U.S. 506 (1859).

Very briefly (at this point), the Supreme Court case arose out of an incident in Wisconsin, in which Sherman M. Booth (pictured above), among others, freed a fugitive slave, Joshua Glover, who had been taken into custody by a Deputy United States Marshal pursuant to a warrant issued by a United States Federal District Judge. Booth was indicted and criminally convicted in federal court for aiding and abetting an escape in violation of the Fugitive Slave Act of 1850. A description of events is available here.

Notwithstanding that the federal court was exercising jurisdiction, the Supreme Court of Wisconsin heard Booth's petition for habeas corpus, determined that the Fugitive Slave Act of 1850 was unconstitutional and Booth's incarceration therefore unlawful, and ordered him set free.

In the Supreme Court, Chief Justice Taney wrote for a unanimous Court that the Supreme Court of Wisconsin lacked jurisdiction and reversed. In one of the many ironies of antebellum jurisprudence, Justice Taney endorsed in ringing language the principle of federal judicial supremacy:

"The Constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home; for if this object could be attained, there would be but little danger from abroad; and to accomplish this purpose, it was felt by the statesmen who framed the Constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereighty which the States then possessed should be ceded to the General Government; and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities."

"The language of the Constitution, by which this power is granted, is too plain to admit of doubt or to need comment. It declares that 'this Constitution, and the laws of the United States which shall be passed in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.'

"But the supremacy thus conferred on this Government could not peacefully be maintained, unless it was clothed with judicial power, equally paramount in authority to carry it into execution; for if left to the courts of justice of the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another. It was essential, therefore, to its very existence as a Government, that it should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws; and that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. Without such a tribunal, it is obvious that there would be no uniformity of judicial decision; and that the supremacy, (which is but another name for independence,) so carefully provided in the clause of the Constitution above referred to, could not possibly be maintained peacefully, unless it was associated with this paramount judicial authority."

"[A]fter . . . the State judge or court [is] judicially apprized that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another Government, and that neither the writ of habeas corpus, nor any other process issued under State authority, can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States."

62 U.S. at 517-18, 523.

Although this language seems startling coming out of the mouth of Chief Justice Taney, it seems clearly correct. How, then, did the Supreme Court of Wisconsin justify its position and claim jurisdiction? On what grounds did that court determine that the Fugitive Slave Law of 1850 was unconsitutional? And was it correct? In future posts, I look at the decisions of the Wisconsin Supreme Court and discuss these and related issues.