The Birth of the Activist Court

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Kamala Harris vowed during her ill-fated presidential campaign that she would “reform” the Supreme Court, an operation that would have meant adding enough Justices to the Court to ensure that the leftist agenda would not be disallowed on constitutional grounds. As president, Harris would have appointed judges to the Court who cared nothing for legal niceties and were willing to engage in all manner of legal legerdemain in order to enact and enforce the Democrats’ authoritarian, socialist, and internationalist policies. Such activist and self-serving judges, mindful more of political calculation than of the law, have never been in short supply. America has suffered them for nearly two centuries now.

On March 6, 1857, the Supreme Court, under the leadership of Chief Justice Roger B. Taney, published its infamous ruling in Dred Scott v. Sandford, a case that had been brought by Dred Scott, a slave who had been taken into free territory and argued that as a result, he was now free. The Court voted 7-2 against Scott. In his opinion, Taney wrote that black Americans were a “subordinate and inferior class of beings” who “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

Dred Scott, consequently, was not even eligible to sue, and “no word can be found in the Constitution which gives Congress a greater power over slave property or which entitles property of that kind to less protection that property of any other description.” Thus the Missouri Compromise, already a dead letter, was declared unconstitutional: “the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution, and is therefore void.” Congress could not prohibit slavery in any territory of the United States.

President James Buchanan, the Old Joe Biden of his day, strongly endorsed the decision. Since he and others who endorsed it styled themselves as strict constructionists, the Dred Scott decision has been used as Exhibit A of why faithful adherence to the letter of the Constitution is unwise and unjust, as it sanctions slavery. However, the Dred Scott decision itself was fundamentally incoherent. As Justice Benjamin Robbins Curtis noted in his dissent, blacks at the beginning of the republic had the right to vote in five states; how, then, could Taney declare that they were not and had never been intended to be citizens? (This was long before the idea became fashionable that non-citizens should vote in American elections and receive the fruit of the labor of American taxpayers.) The other dissenting Justice, John McLean, pointed out that by declaring that Scott was not a citizen and thus could not sue, the Court was acknowledging that it had no jurisdiction in the case, and therefore could not rightly and should not have issued a ruling at all. It could also have been argued, once Curtis’ point about blacks being citizens was granted, that slavery was outlawed, or the seeds of its outlawing were planted, by the First Amendment guarantees of freedom of speech and freedom of assembly.

Buchanan had neither the wit nor the imagination to follow such a course, even if he had been inclined to do so. He thought, in fact, that the Dred Scott decision would settle the problem of slavery once and for all. It didn’t. Instead, the Dred Scott decision raised the prospect of violence spreading to all the territories of the West, for it held that while Congress could not prohibit slavery in the territories, once a territory became a state it could vote to outlaw slavery. The same rush of outsiders into various territories, and the same violence, that had torn Kansas apart was now a national prospect.

Buchanan should have denounced the Dred Scott decision’s incoherence and declared it unenforceable. Instead, he kept pushing it even when it was clear that it was deepening, rather than healing, the divisions in the country. The formal dissolution of the Union that began while he was still President had been a very long time coming, but during his tenure in the White House he did nothing to stave it off, and a great deal to hasten it.

Buchanan was still President when the first seven Southern states left the Union, but his term would expire on March 4, 1861, and for the last months of his term all he did was run out the clock. He did nothing to stop secession, arguing that it was not within his powers to do so, and simply handed off the problem to his successor. His failure to address this greatest of the nation’s crises was the last in a series of mistakes and demonstrations of weakness that had characterized his presidency. This most qualified of presidential candidates turned out to be one of the most wholly unfit men ever to occupy the White House, at least until the days of Jimmy Carter, Barack Obama, and Old Joe Biden.