Taney, Roger Brooke
- Sandra F. VanBurkleo
- and Bonnie Speck
Roger B. Taney.
Taney, Roger Brooke (17 March 1777–12 October 1864), lawyer, politician, and chief justice of the U.S. Supreme Court, was born in Calvert County, Maryland, the son of Michael Taney, a planter and politician, and Monica Brooke. The Taneys had been slaveholding planters since the first Taney arrived in Maryland in the 1660s, and at the time of Roger’s birth the family ranked among the most prestigious in the county. Originally Anglican, the Taneys had abandoned the English church for Catholicism well before the birth of Michael Taney, possibly in imitation of leading Maryland families.
As a young man, Roger Taney attended village schools and also explored the classics with a private tutor, while his father imparted gentlemanly arts—among them riding, hunting, and the manners of a country squire. In 1792 the fifteen-year-old Roger was sent to Dickinson College in Carlisle, Pennsylvania, to prepare for a profession. After a lackluster start, he proved an apt pupil, graduating in 1795 with a bachelor of arts degree, and his fellow students elected him class valedictorian. This “small honor,” Taney later confessed, occasioned much distress. The painfully shy lad was made to stand on a plank before his distinguished teachers and a large commencement audience to deliver a valedictory address. He was “sadly frightened, and trembled in every limb, and … much mortified by it.”
After graduating, Taney read law in Annapolis with Judge Jeremiah Townley Chase of the Maryland General Court. After his admission to the Maryland bar in the spring of 1799, at his father’s request he settled in Calvert County, where he opened law offices. Simultaneously he ran successfully for a seat in the Maryland lower house as a Federalist. In later years Taney acknowledged that he “was, perhaps, not a little flattered at the idea of becoming a member of the General Assembly at the age of twenty-two years.” A capable lawyer, Taney probably gained election in large part because of his father’s reputation; the shy, physically gaunt—some might have said unattractive—young man later confided that he had been elected on the coattails of friends “who had determined to carry me through.” In any case, success was fleeting. Taney attended the November 1799 house session only to lose his seat in 1800.
Because he no longer needed to be in Annapolis, Taney moved to the larger city of Frederick, where many of his friends lived and where commercial expansion and real estate speculation created a demand for lawyers to handle intricate financial dealings and the “perfecting” of land titles. Frederick also was the seat of the county court, the Court of Chancery, and the Court of Appeals. During his twenty-three years in the city, Taney practiced law before all of these tribunals but was especially active as an appellate lawyer. In 1803 he again stood for election to the assembly but lost, a possible victim of both his seemingly intractable shyness and mounting hostility toward Federalists. In 1806 Taney married Anne Phebe Charlton Key, sister of Francis Scott Key, in a ceremony at the Key family estate in Frederick County, Maryland. They had six daughters and a son who did not survive infancy. Unlike the Catholic Taneys, the Key family was Anglican, and all but one of the couple’s daughters assumed their mother’s faith. Religious differences apparently did not damage a marriage marked by great affection. Indeed, Roger Taney was devoted to the idea of the well-governed patriarchal family—relations with African workers on his family’s plantations, and within the political community generally.
The quietly ambitious Taney confronted personal and professional reversals throughout his career, beginning in June 1812, when the United States declared war against Britain. While Taney opposed hostilities, he backed the administration’s war declaration as his patriotic duty. This stance won him the enmity of antiwar Federalists and unwelcome, negative publicity in local newspapers and partisan pamphlets. To make matters worse, in 1814 Taney’s mother died at his home in Frederick. Her devastated son later said that he would “remember and feel the effect of her teaching” for the rest of his life.
Leader of the Maryland Federalists
Taney remained active in state politics. Indeed, by 1816 he was the recognized leader of the Maryland Federalists, and that year he won a five-year term in the Maryland Senate. At the same time, he cut his teeth on more than one controversial case: some of them reveal a distinctly southern political and social conscience. In 1819, for example, he defended Jacob Gruber, a Methodist preacher from Pennsylvania charged with inciting slaves to insurrection by means of a flaming antislavery sermon he had preached at a revivalist camp meeting. After a trial marked by high feeling on both sides, Gruber won acquittal before slaveholding judges and a proslavery jury. “A hard necessity indeed,” Taney told jurymen, “compels us to endure the evil of slavery for a time. … It cannot be easily or suddenly removed. Yet, while it continues, it is a blot on our national character; and every real lover of freedom … hopes it will … be … gradually wiped away.”
In 1823 changes in the leadership of the prestigious and accomplished Baltimore bar made a move there seem attractive to Taney. At age forty-six he had established himself firmly as a lawyer and public figure of consequence, and in his judgment, the time had come to move up the professional ladder. Hence, in 1824 he moved his family to Baltimore. Taney’s arrival in that bustling entrepôt coincided with a no-holds-barred struggle for the presidency between John Quincy Adams and Andrew Jackson. Not surprisingly, Taney joined the debate, initially as a Federalist. As the fracas developed, he rejected both Federalism and the perquisites of his father’s social class to support Jackson, perhaps to ingratiate himself with leaders of the seemingly ascendant party but also to express an emerging, highly principled system of political belief analogous to if not identical with Jackson’s. Taney agreed with “Old Hickory’s” condemnation of an outmoded, “aristocratic” Federalism and admired Jackson’s vision of states as semiautonomous engines of territorial and commercial expansion. Taney was not a disunionist as much as a believer—with Jackson himself—in the necessity of state-led, neighborhood-centered economic growth. By his lights, only small-scale political “families” could ensure the morality of economic exchange. Neighborhoods made safe for capitalism then could reach out to one another, creating a moral national economy.
But in 1824 Jackson lost, and Taney beat a hasty retreat into law practice and for the rest of the decade distinguished himself at the bar. In 1826 he appeared as counsel for the state of Maryland before the U.S. Supreme Court. A year later the state bar recommended him unanimously for the position of state attorney general, which he gladly accepted. Indeed, he said that occupying that post satisfied all of his ambitions.
As attorney general, Taney remained active in national politics, serving as chair of the Jackson Central Committee of Maryland in the 1828 presidential elections. Taney did not pursue the possibility of a federal appointment, quite honestly uninterested in a post that would have diverted him from law practice and almost certainly resulted in a dramatic loss of income.
Appointment as Attorney General
In 1831 the Peggy Eaton affair combined with other scandals within the Jackson administration led to the resignation of the entire cabinet. Pressed to fill the position of attorney general, Jackson took the advice of friends and on 21 June 1831 offered the post to Taney, who accepted the commission two days later. The job was onerous and the annual salary a meager $4,000. Constantly pestered by both office seekers and federal officers looking for legal advice, Taney considered the part-time job “the most laborious in the government,” with the exception only of the presidency.
As attorney general, Taney came to national prominence almost at once as the architect of Jackson’s assault on the Second Bank of the United States, later dubbed the “Bank War.” Chartered to serve as a depository for the federal Treasury and as a source of stable credit and currency throughout the developing nation, the federal bank and its many branch offices in 1831 were under heavy attack by devotees of state-chartered banks; opponents of centralized fiscal power, for many the epitome of antirepublican tyranny; and Jacksonians determined to replace congressional leadership in economic development with “dual federalism,” that is, a partnership between national and state governments in which the latter enjoyed wide zones of autonomy and extensive police powers. Not coincidentally, such a system preserved slavery, to southerners a purely “municipal institution,” from congressional or federal judicial interference and kept open the possibility that slaveholding might expand into western states and territories.
In June 1832, convinced that a bill then before Congress to renew the bank’s charter would pass and chary of the speculators and other “oligarchs” supposedly nurtured by the bank, Taney advised Jackson by letter to veto the bill when it reached his desk. First, he contended, the “necessary and proper,” or “elastic,” clause of the Constitution authorized Congress to create a bank with deposits of $35 million, which he considered excessive if the bank aimed only to serve the federal Treasury and encourage a stable money supply. Equally important, if Congress could create a bank and grant it a monopoly, what would prevent the creation of other lawful monopolies to the detriment of local enterprise? Where did Congress get the authority to delegate to the bank the power to establish branches in states that already possessed adequate banking systems? Surely it was “contrary to the spirit of the Constitution,” he added, to sell shares in a public corporation to private individuals and then to bribe stockholders with a bonus (as the bank promised) to secure charter renewal. Even if Congress could sell shares to the public, such influence pedaling violated “the principles of equality in terms of which all of our institutions had been framed.” The bank created a monied upper class. It also decimated local banking and with it the republic’s best hope for neighborhood control of financial transactions. When the renewal bill passed, and at Jackson’s request, Taney helped to prepare a veto message for presentation in the Senate. While it is unclear exactly how much of the message Taney actually wrote, he recalled being shut up in a room for three days laboring to complete the speech.
The question of the Second Bank smoldered until 1833, when Jackson again explored the institution’s future with Taney, a process culminating in charter revocation in 1836. He hoped to settle the matter by removing federal deposits from the Second Bank by 1 October. As Secretary of the Treasury William J. Duane refused to cooperate by either removing the deposits or resigning, the president dismissed him from his post on 23 September and immediately asked Taney to take the job. Taney agreed, and on 26 September he ordered federal deposits transferred from the Second Bank to designated state banks, later called “pet banks.” The Bank of the United States officers responded by calling in loans, and during the resulting bank panic, journalists and congressmen attacked Taney. In 1834 the Senate, led by supporters of the Second Bank, failed to confirm his cabinet position and passed a resolution condemning his actions during the banking crisis.
Out of work, Taney returned to Baltimore to sit out the storm and resume law practice. When the House refused to recharter the bank, public attitudes gradually softened toward Taney. Some prominent figures in and around government expressed sympathy toward him, including Jackson, who wrote in June 1834, “I cannot refrain from expressing, on this occasion, my profound regret at the necessity for your retirement … nor can I suffer the opportunity to pass without paying a just tribute to the patriotism, firmness, and ability which you have uniformly exhibited. . . . I owe you a debt of gratitude and regard which I have not the power to discharge.”
Chief Justice of the U.S. Supreme Court
A few months after his return to law practice, Taney succumbed to the temptations of public office, this time as a judge. In January 1835 Gabriel Duvall retired as associate justice of the U.S. Supreme Court, and Jackson nominated Taney. Although Chief Justice John Marshall supported the nomination, the Senate refused to confirm him. During the summer the chief justice died, and on 18 December 1835 Jackson nominated Taney to fill Marshall’s place. While senators ultimately confirmed him, many complained that Taney was only a political lackey whose nomination had been a “payback” for Bank War dirty work. In fact, the president probably felt he owed something to Taney, if only for absorbing much of the criticism aimed at Jackson. But Taney was a capable if not brilliant lawyer with an impressive, varied record of public service. Marshall’s previous support for him no doubt strengthened the cause, and Senate Democrats hoped that the appointment of a Catholic might strengthen the party’s electoral prospects among the urban Irish.
When Chief Justice Taney opened the January term of 1837, he appeared wearing long trousers—a change from the traditional knee breeches and, to some eyes, a symbol of the transition from the Federalist Era to the Age of Jackson, from statesmanship shaped by personal experience with the American Revolution to the instrumentalism of a new generation caught up in social reform movements and the market revolution. Taney’s first session coincided with the onset of a severe financial and commercial depression. Moreover, organized abolitionism and campaigns for political democracy emerged as potent forces, mobilizing thousands of reformers in northern and central states against disfranchisement of the so-called “dependent classes” and especially against plantation slavery. A scant five years earlier, sectional conflict had reared its head in the notorious nullification controversy, during which Attorney General Taney had supported Jackson’s nationalist stance against South Carolina’s defiance of a federal tariff. Despite the gag rule imposed by Congress on discussion of the slavery question, the “peculiar institution” loomed as the one issue on which the ship of state might well founder.
The Marshall Court never had been forced to navigate through so many crocodile-infested swamps. In the place of relative peace among the North, South, and emergent West, Taney confronted mounting tension and hot debates in antislavery circles of the constitutionality and morality of both slavery and its extension westward. Unprecedented wealth, a growing gap between rich and poor, and technological innovation threatened to pit Americans against one another in a scramble for riches and status. Territorial expansion scattered republicans so thinly over the landscape that a good many observers feared anarchy or, at another extreme, intolerable centralization.
Charles River Bridge v. Warren Bridge Company
Taney encountered many of these tensions in his first term as chief justice. In 1837 the Court heard arguments in the case of Charles River Bridge v. Warren Bridge Company, which some considered the embodiment of Jacksonian jurisprudence and the beginning of the end for Court-led economic nationalism. The case arose from a charter, granted in 1796 by the Massachusetts legislature to owners of the Charles River Bridge Company, permitting them to construct a toll bridge between Boston and Cambridge. In 1828, responding to public demand for expanded transportation facilities, the state chartered the Warren Bridge Company to build a second span, which, after its construction costs had been repaid, would become a “free” bridge.
Attorneys for the Charles River Bridge Company insisted that their clients’ charter conveyed an implied monopoly in traffic over the river, partly because of the transfer of “exclusive” rights from an old ferry to the bridge that replaced it. They said, too, that the new bridge destroyed stockholders’ property by depriving them of future tolls and that the state legislature’s effective destruction of the implied monopoly amounted to an impairment of the obligations of a public contract, an action prohibited by the Constitution. On the other side, lawyers maintained that the new bridge served a legitimate public need, that the old company had repaid investors many times over, that the state had never contracted to prevent innovation or competition, that the ferry’s exclusive rights had died with it, and that economic development would be crippled if the mere issuance of a charter conveying privileges for a term could be read to confer a monopoly for all time.
In his majority opinion, Chief Justice Taney embraced the upstart company’s position. Here was another opportunity—the first had appeared during the Bank War—to smash species of monopoly power. Governments were obliged to defend private property, he said, but federal courts also aimed to protect the interests of the public, as expressed by state legislatures. Because no exclusive rights had been named in the charter, Taney argued, none had passed to the new company. The initial bridge charter was “a written instrument which must speak for itself, and be interpreted by its own terms.” Since the contract did not explicitly grant a monopoly, nothing of the sort would be construed. In a now-famous passage, Taney decreed that, in future contests between the interests of “adventurers” and those of the public, any “ambiguity” would be decided in favor of the community.
In a single stroke, Taney moved American lawmaking from a hierarchical republican art managed by gentlemen-judges to a democratizing, mechanical science limited by the letter of texts and shaped primarily if not entirely by legislators speaking for members of a political “family.” Leaning heavily on English authorities and Marshall’s 1830 opinion in Providence Bank, Taney insisted that no government could make rules that limited future generations: “The object and end of all government is to promote the happiness and prosperity of the community by which it is established; and it can never be assumed, that the government intended to diminish its power of accomplishing the end for which it was created.” If one generation could frustrate the attempts of subsequent generations to improve transportation or wealth production, Americans would be “thrown back” to the “last century, and obliged to stand still.”
Marshall’s good friend Joseph Story submitted an eloquent dissent rooted firmly in American precedent that defended a fading republican social order in which citizens kept their promises, respected vested property rights, and maintained public morality by holding entrepreneurs accountable to the letter and spirit of agreements. Who would invest in risky economic ventures, he asked, if Americans, including legislators, regularly abandoned their promises? Who, if not common law judges, would guard the nation against breaches of moral and legal obligations inherent in the social compact itself? Story’s arguments came to be characterized as the bleatings of an old-guard reactionary. Later decisions solidly affirmed the Charles River Bridge line of reasoning. In West River Bridge v. Dix (1848), the Court went so far as to defend a state’s right to wield powers of eminent domain against corporate property if the good of the community required it.
Critical Rulings in Taney’s First Term
Other burning issues appeared during Taney’s inaugural term. In New York v. Miln (1837), the justices explored federal and state responsibility for commercial regulation. By implication, Miln also addressed the power of state legislatures to regulate slavery and to control both commerce in slaves and the movements of self-emancipated blacks, who often stowed away in ship holds. The Miln case tested the constitutionality of a New York law requiring the masters of vessels coming into the port of New York from other states or from foreign countries to report personal information about passengers, including name, place of origin, and occupation. In deciding the case, the Court could have relied on several precedents, such as Gibbens v. Ogden (1824) or Brown v. Maryland (1827), that had struck down other state regulations as violations of the commerce clause, which granted Congress the right to regulate interstate commerce. In Miln, however, the Court ruled that the New York law was a permissible exercise of state police powers and failed to address the question of Congress’s constitutional authority to trump state police powers when goods or people moved between states.
In Briscoe v. Commonwealth Bank of Kentucky (1837), the third critical ruling of Taney’s debut term, the chief justice confronted his old nemesis, the banking system. Disgruntled creditors had demanded invalidation of the notes issued by Kentucky’s Commonwealth Bank, created during the panic of 1819 to aid economic recovery. The institution had been backed by the credit of the state treasury and the value of unsold public lands, and by every usual measure, its notes were bills of credit of the sort prohibited by the federal Constitution. Briscoe demanded that purveyors of “rag paper” be forced to pay debts in sound paper or precious metal, as contracts most often stipulated. Briscoe was potentially explosive because it came on the heels of the Bank War and reminded observers of the fly-by-night character of the worst state banks. Kentucky officials contended that their “debtor bank,” which had long since closed because of insolvency and a loss of public faith in its paper, had not issued bills of credit of the sort prohibited by the Constitution because the institution had been granted a separate corporate identity by legislative charter. Surely the framers had in mind banning only notes issued directly by treasuries or land offices.
Did the fiction of incorporation preserve a state-funded bank from charges of unconstitutionality? Yes, said Justice John McLean for Taney and the majority. The land office and treasury paper prohibited by the framers differed substantially from the notes of this bank. Notwithstanding the Marshall Court’s arguments to the contrary in Craig v. Missouri (1830), he argued that the framers aimed only to outlaw currency in circulation during the republic’s earliest decades. More important, a decision against state banks, even a discredited bank such as the one at hand, would be inexpedient. In 1837 a depression threatened to reverse decades of progress, and with Jackson’s public execution of the federal bank, state institutions were all that remained. A decision against the Commonwealth Bank, said McLean, would strike “a fatal blow against the state banks … which supply almost the entire circulating currency of the country.”
Yet Taney did not oppose the concept of economic nationhood. When cases did not imply slavery or when he could imagine putting the federal government to use in defense of slavery, he championed interstate exchange. In Bank of Augusta v. Earle (1839), for example, he warned state legislatures in language reminiscent of Charles River Bridge that, in the absence of clear language to the contrary, judges would presume that agents of “foreign” companies could do business in their states. Similarly, in Swift v. Tyson (1842), Taney allowed Story to say for a unanimous bench that federal courts could begin to develop a uniform system of commercial law. Even more remarkably, in Genessee Chief v. Fitzhugh (1852), Taney reversed Story’s dramatic retraction in the 1825 case of the Thomas Jefferson of federal admiralty jurisdiction on inland waterways, contending that the dizzying array of state laws regulating the movement of goods on rivers, lakes, and canals impeded economic growth and union.
Cases Involving the Issue of Slavery
While slavery was implied, often in cases involving questions of economic reciprocity, only in a few instances was African bondage addressed directly. In Ex Parte Dorr (1845) and Luther v. Borden (1849), Taney generally ruled, as Marshall had, that the federal Bill of Rights did not apply to the states and that federal magistrates could not intervene in state attempts to deal with insurrectionists. In the famous Amistad case of 1841, Story ruled (with Taney keeping silent, perhaps because his disapproval of the slave trade was less equivocal than his distaste for slavery itself) that kidnapped blacks could not be enslaved under Spanish or American law. Mounting tensions and the politicization of police power disputes by antislavery and proslavery activists continued to plague the Taney Court in the License cases (1847) and the Passenger cases (1849), which together raised important questions about the constitutionality of state health and welfare laws and, by implication, states’ ability to regulate “domestic institutions” like slavery. The peculiar institution tore the Court apart. In the Passenger cases, the Court reporter concluded that the Court had no opinion. Justices engaged in public name calling, Taney ordered the clerk to reprint the Miln decision for the benefit of critics, and abolitionists condemned the Court for its alliance with the slave power. In Strader v. Graham (1851), Taney articulated what Harold Hyman and William Wiecek call “the right of the forum state to apply its own policy to slaves domiciled outside its jurisdiction and then returned to it.” The Court advanced a new interpretation of the conflict-of-laws doctrine, holding that the policy of the forum state should control in choice-of-law cases, in order to affirm Kentucky’s absolute authority to make its own rules about slavery and the status of black people. Each state had an “undoubted right to determine the status or domestic condition of the persons domiciled within its territory” except when explicitly “restrained” by the Constitution. Finally, in 1852, when Benjamin Curtis articulated in Cooley v. Board of Port Wardens of Philadelphia a way to distinguish between federal and state questions, the Taney Court put an end to its unsightly display of dirty laundry.
Taney’s most widely condemned decision involved his dismissal, basically for want of jurisdiction, of a suit for freedom lodged by Dred Scott, a self-emancipated slave. For all of his moral compunctions about slavery, misgivings that inspired him to manumit his own slaves by the 1820s, the paternalistic Taney judged Africans to be inherently inferior to white people, incapable of self-government or collective morality without close supervision by white “fathers” or surrogate political families, such as states. No sooner had he manumitted his own slaves than he announced an intention to support former members of his “family” for the rest of their lives. Early in his career, when asked as Jackson’s attorney general to comment on the authority of southern states to prohibit free blacks from entering, Taney had averred that the “African race … even when free, are everywhere a degraded class, and exercise no political influence. The privileges they are allowed to enjoy, are accorded to them as a matter of kindness and benevolence rather than right.”
The Dred Scott Decision
Taney’s beliefs ultimately changed the course of American history. In 1846 the slave Dred Scott sued for his freedom in an action for trespass, a common device used in freedom suits to force a court to grant standing. In 1850 the Missouri Circuit Court granted standing and declared Scott a free man. John Emerson’s widow, Scott’s alleged owner, appealed to the Missouri Supreme Court, which overturned the ruling and pronounced Scott still a slave incapable of filing suit in a common law court. Indeed, in Scott v. Emerson, the Missouri Supreme Court overruled Rachael v. Walker (1836), explaining that the times were “not now as they were” in previous decades. States now were possessed of a “dark … spirit in relation to slavery … whose inevitable consequences must be the overthrow and destruction of our government.”
Having lost, Scott, with the help of childhood friends and abolitionists, maneuvered to get a freedom suit docketed in federal court, initially in the Circuit Court for the District of Missouri. Scott had a new owner, John Sanford, a resident of New York whose name was misspelled by the federal reporter. Scott’s supporters, fearing that federal courts would refuse to hear an appeal of his case on the ground that the Missouri ruling was controlling, formulated an entirely new action in diversity, a federal jurisdiction invoked when citizens hailed from different states. While the circuit court deemed Scott a person capable of bringing suit, it also judged him to be a slave, relying in part on the U.S. Supreme Court decision in Strader v. Graham.
Scott therefore took his case to the Taney Court. Arguments in Dred Scott v. Sandford [sic] commenced in February 1856, with reargument in December. Taney considered ducking explosive political questions, but amid Court deliberations, President James Buchanan intervened, urging the justices to settle the question of the constitutionality of slavery once and for all. Taney did just that. On 6 and 7 March 1857 the Court handed down its decision in nine separate opinions, including a flaming dissent by Curtis. Taney’s 55-page majority opinion pronounced Scott a slave incapable of maintaining a suit in federal court. At that point, he might have declared a nonsuit and moved on the next case, but in sweeping dicta he pressed well beyond the facts of the case. As he spoke, his voice collapsed into a whisper, and reporters in the back of the room strained to hear. In effect, Taney constitutionalized slavery, reiterating the southern Democratic defense of slaves as property. He also claimed that the 1820 Missouri Compromise, which prohibited slavery north of the Mason-Dixon Line, had been an unconstitutional usurpation of the rights of individuals to exercise property rights and expect government protection of those rights anywhere in the nation. Finally, he cast doubt on free black people’s claims to equal citizenship with white people.
In Taney’s view, Congress possessed authority to establish governments in the territories. But because governments could neither create nor destroy property rights and were obliged to protect property, neither states nor western territories could prohibit slavery, considered by Taney as merely another form of property. If an individual chose to move slaves to a northern territory, the territorial government was obliged to protect him in the enjoyment of his right. The federal government could not claim authority to abolish slavery in the territories on the basis of American Insurance Company v. Canter (1828), in which Marshall had ruled that the federal government could make laws for Florida Territory, acquired in 1819. Realizing he would have to say something about American Insurance Company, Taney noted that it applied only to Florida and did not provide a general rule.
The assault on free black citizenship was both unexpected and unsettling. Citizenship, said Taney, attached at birth or through naturalization. Because few black people met the criteria, after Dred Scott a few states passed laws limiting the civil rights of free blacks. Taney contended with some accuracy that both the framers of the federal Constitution and the architects of the law of slavery aimed to preserve slavery, at least for a time, and to assert its legality was merely to reassert the intentions of the framers. In rambling sentences, he laid out differences between the races as determined by nineteenth-century scientists, suggesting as well that blacks’ failure to liberate themselves after long centuries of bondage confirmed their inferiority.
The Dred Scott decision created painful divisions within the Court. Justice Curtis resigned in protest, northern newspapers and public officials blasted the ruling, and southern lawyers lavished praise on both the Court and Taney. Critics suggested, as happened periodically in the nineteenth century, that the Court be stripped of all power to review acts of Congress for constitutionality. One abolitionist paper called Dred Scott the “death knell” of union. William Seward accused the Court of conspiring with President Buchanan to protect proslavery interests. In his inaugural address, Buchanan urged Americans to abide by the Court’s decision. The new Republican party’s presidential candidate, Abraham Lincoln, emphasized the non-binding character of judicial dicta, and the 1860 Republican platform ignored the ruling altogether. Taney’s decision in Dred Scott did not cause the Civil War, but the opinion catalyzed and polarized opinion by draping the southern defense of slavery in judicial ermine, forcing northern Democrats to part ways with their party’s aggressively expansionist southern wing, and radicalizing the relatively moderate Republican party. “By bolstering slavery with constitutional law,” historian Kent Newmyer notes in The Supreme Court under Marshall and Taney, “the Court forced the North to go beyond the Constitution”—which, after all, never mentioned slavery explicitly—“and the South to reject it as a worthless promise,” too vague on the point to be useful.
After Dred Scott, critics heaped abuse on the chief justice, associating the opinion less with the Court per se than with its leader. How could a patently proslavery justice presume to interpret the Constitution for all Americans? For the eighty-year-old, increasingly frail Taney, witheringly personal attacks exacerbated poor mental and physical health. Over two decades, he had surmounted negative comparisons with Marshall to become a well-regarded, if never exactly beloved, chief justice. If he lacked Marshall’s charm, at least he garnered praise as the author of Charles River Bridge, as a skilled legal scholar, and as the architect of a new age in federal-state cooperation. By the 1830s he had completely suppressed a “capacity for passionate opinions, stubbornness, and irascibility,” at least in public. In addition, he was a devoted husband and father, a paternalism that partly explains his preoccupations with the political family’s responsibility for economic growth and the fate of African “children.”
As Newmyer puts it in The Supreme Court under Marshall and Taney (p. 98), Dred Scott essentially “obliterated twenty-one years of effective judicial government and left the Court burdened with the moral obloquy of slavery.” By 1858 even Taney’s friends condemned him for capitulations to the slave power, political expediency, and immorality. It was Curtis who emerged as a folk hero, not Taney. The chief justice remained on the Court but became an embittered, pathetic figure incapable of exercises of legal imagination. In Ableman v. Booth (1859), a case involving an abolitionist’s evasion of the 1850 federal Fugitive Slave Law, Taney crassly transformed himself into a flaming nationalist, dismissing Wisconsin’s states’ rights arguments, as historian Paul Finkelman explains, “as though he had never heard of the idea,” endorsing a “sweeping federal power to support slavery” (Urofsky, ed., p. 472). Two years later, in Kentucky v. Dennison, he again switched sides. In 1861 secession was well under way, and to avoid empowering the federal government in its struggle against disunionism, Taney castigated the governor of Kentucky for extraditing an emancipated black but refused to order him to rectify the situation on the ground that federal courts lacked the power to do so.
To some extent, Taney’s late-term difficulties reflected the changing political complexion of the Court, combined with his obsessive determination to protect property rights in slaves at all costs. During his final terms, he no longer commanded a firm Democratic states’ rights majority. He administered the oath of office to Lincoln, whom he considered the embodiment of despotism, and then found opportunities to nettle and thwart him. In Ex Parte Merryman (1861), Taney denounced Lincoln for the house arrest of Confederate sympathizer John Merryman. He repeatedly denounced Lincoln’s blockade of southern cities and the suspension of the writ of habeas corpus (approved retroactively by Congress), and he leaked informal, unsolicited opinions to the press, among them a brief against the constitutionality of the Emancipation Proclamation. In 1863, only months from death, Taney dissented in the Prize cases and condemned congressional taxation of judicial salaries to pay war expenses.
The chief justice’s late-life collapse into cynicism and political reaction also originated in irremediable personal loss, after which he simply could not marshal resources sufficient to withstand harsh criticism. In September 1855 his wife and his youngest daughter, Alice, died of yellow fever within days of each other at Old Point Comfort, Virginia, where the Taney family retreated in summer to escape epidemic disease. Afterward Taney told a colleague that, although he planned to resume professional duties, he would do so “with the painful consciousness that they will be imperfectly discharged. … I shall meet you,” he said, “with broken health and a broken spirit.”
Taney passed his final weeks at home. In 1863 he confided in a friend that, while he knew he was “sick enough for a hospital, … that hospital must be my own home.” He no longer recognized the American republic and despaired of the rule of law. In August 1863 he told an old friend that he saw no “ground for hope” that the Supreme Court would “ever again be restored to the authority and rank which the Constitution intended to confer upon it. The supremacy of the military power over the civil”—a rank heresy that he blamed almost entirely on Lincoln—“seems to be established; and the public mind has acquiesced in it and sanctioned it.” When he died—partly of old age, partly of a broken spirit—he was buried near his mother’s grave in Frederick.
No uniform edition of Taney’s correspondence exists, nor has an archive systematically collected private papers. For a contemporary account with autobiographical material written by Taney, see Samuel Tyler, Memoir of Roger Brooke Taney (1872). Carl B. Swisher, Roger B. Taney (1935), capably collects information about his life but is dated and lacks analytical and interpretive richness. Walker Lewis, Without Fear or Favor: A Biography of Chief Justice Roger Brooke Taney (1965), contributes vital personal information but skids over cultural and political contexts. For fascinating biographical essays, see especially G. Edward White’s chapter on Taney in The American Judicial Tradition, expanded ed. (1988), and Paul Finkelman’s sketch in The Supreme Court Justices: A Biographical Dictionary, ed. Melvin Urofsky (1994). See also Kenneth Umbreit, Our Eleven Chief Justices (1938); Frank Otto Gatell, “Roger B. Taney,” in Justices of the United States Supreme Court, 1789–1978, vol. 2, ed. Leon Friedman and Fred Israel (1969–1980); Kermit Hall, ed., Oxford Companion to the Supreme Court of the United States (1992); and Robert Harris, “Chief Justice Taney: Prophet of Reform and Reaction,” Vanderbilt Law Review 10 (1957). For scattered information about Taney and his bench, see Harold Hyman and William Wiecek, Equal Justice under Law (1982); R. Kent Newmyer, The Supreme Court under Marshall and Taney (1968); Newmyer, Supreme Court Justice Joseph Story (1985); and Swisher, Taney Period, vol. 5 of the Holmes Devise History of the Supreme Court (1974). For fine-grained studies of Taney’s best-known opinions, see Stanley Kutler, Privilege and Creative Destruction (1971), and Don Fehrenbacher, The “Dred Scott” Case: Its Significance in Law and Politics (1978), which was brilliantly abridged as Slavery, Law, and Politics (1981).
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