Judging Taney: A Response to Josh Blackman

By Steve Klepper (Twitter: @MDAppeal)

As Josh Blackman has covered at his blog, a Baltimore City commission has recommended removing the statue of Chief Justice Roger Taney from the city’s Mount Vernon neighborhood.

This event calls to mind an exchange I had with a then-professor at Goucher College in 1994. When he expressed sarcastic pride that a Marylander, Taney, wrote the Dred Scott decision,[1] I asked, “Wasn’t Taney otherwise considered a great justice?” He shot back: “How was the play, Mrs. Lincoln?” Point taken.

I favor removing the statue, but we should ask serious questions before cutting symbolic ties with Taney. Is it fair to allow Dred Scott to outweigh Taney’s other significant contributions to the law? And, as Blackman asks in his post, is it fair to pass judgment on Taney without passing similar judgment on the extreme racism that other justices, including Chief Justice John Marshall, wrote into the law?

I do think it’s fair to pass judgment on Taney, primarily because he knew full well that his opinion in Dred Scott was likely to define his legacy. Two days before the Court handed down Dred Scott, Taney swore in President James Buchanan and stood by as Buchanan declared that the Court’s coming opinion would settle the great controversy of the era – slavery in the territories.

Faced with the most important case of his judicial career, Taney chose poorly. His opinion held that “descendants of [African] slaves, when they shall be emancipated, or who are born of parents who had become free before their birth” could never be “citizens of a State” under Article III of the Constitution and, therefore, that the federal courts had no jurisdiction to consider Dred Scott’s claim that he was free by virtue of his time in free federal territories. I cannot accept any claim, moreover, that Taney was merely following what the law dictated. Taney reasoned that if free blacks were citizens under Article III’s jurisdictional provisions, they necessarily were citizens entitled to the “privileges and immunities” of citizens under Article IV – a conclusion that Taney found incompatible with the original intent of Article IV. There was a gaping hole in that logic.

Taney authored the Court’s seminal 1839 opinion in Bank of Augusta v. Earle, which held that state-chartered corporations were citizens under Article III but not under Article IV.[2] Finding jurisdiction under Article III did not require a conclusion that Scott was a full citizen for purposes of Article IV. Taney did not merely choose wrong in the eyes of history. His opinion was intellectually dishonest.

Blackman is correct to draw attention to Chief Justice John Marshall’s abhorrent dicta about Native Americans in his 1823 opinion in Johnson v. M’Intosh. Blackman notes that “[p]erhaps Marshall atoned somewhat in Worcester v. Georgia, but is there no outrage at how the Great Chief Justice reduced aboriginal populations to infantile savages.” There should be more outrage.

Still, Marshall deserves great credit for his 1832 Worcester opinion, upholding the treaties the United States made with the Cherokee. That was a case that Marshall knew could define his legacy. He chose right when he knew history was watching.

Maybe I’m being too generous to Marshall. His Worcester decision could just as easily be understood as a political poke in Andrew Jackson’s eye (just as Taney’s great Ex Parte Merriman decision can be understood as a political poke in Lincoln’s eye). If Marshall had died before Worcester, history might judge him more harshly – just as Taney’s legacy would have been golden if he had died before Dred Scott. History can be kind or cruel, and that’s the risk each took when he accepted a commission to serve as chief justice.

I do not believe, however, that removing Taney’s statue from Baltimore City should endanger Taney’s bust in the Great Hall of the Supreme Court. Context matters. For a chief justice, a bust in the Great Hall is a participation trophy. A bust connotes nothing more than a presidential appointment and a Senate confirmation (or, in John Rutledge’s case, a recess appointment). Fred Vinson gets equal billing with Earl Warren. The Great Hall does not single out any chief justice for praise or blame.

The Taney statue, by contrast, singles him out for recognition in a city where 63 percent of Baltimoreans identify themselves as black or African American. They would be ineligible for citizenship but for the 14th Amendment overruling Dred Scott. Taney was a great lawyer, who helped to elevate the Baltimore bar before becoming a national figure. But he put his reputation at stake, in Baltimore and nationwide, when he authored his most infamous opinion.

Each community needs to make its own judgments about its problematic monuments. Taney deserves credit for his positive contributions to the law, but he forfeited any right to special public recognition in the shadow of Baltimore’s Washington Monument. His statue needs to go.

[1] I recognize that Taney’s opinion was one of nine seriatim opinions, but I agree with historian Don Fehrenbacher’s conclusion that the justices considered Taney’s opinion to be the opinion for the Court’s majority.

[2] I take no credit for this observation, which comes from recently retired University of Virginia Professor Chuck McCurdy.