Why Should I Care About Roger Taney’s Reputation?

I think John’s response to the question of in what sense Dred Scott made the underlying political situation worse (i.e. what bad consequences it had aside from its restatement of orthodox Jacksonian immorality with respect to slavery and white supremacy) is worth discussing because it gets at some larger issues:

Obviously Dred Scott didn’t close the issue, as Taney had hoped. I don’t think anything would have changed in terms of American history. It would have helped preserve Taney’s and the court’s future reputation, though, and certainly would have inflamed passions the least of the available options.

To deal with a couple details first, it is of course true that Taney’s pretensions about the Court’s ability to end the political salience of the slavery issue were badly misplaced, although it also has to be remembered that he acted at the behest of leaders in the other two branches, as opposed to usurping a functional compromise. I suppose it may be true that the Court saying silent would have “inflamed passions” a little less than ducking the issue, although in context — i.e. a context in which everyone knew the Court was intentionally ducking the issue — this isn’t obvious. But even if true, this is (as John essentially concedes) a trivial truth. Nothing important would have changed — the Jacksonian party system depended slavery not dominating national politics. Throwing the issue to the courts didn’t (and shouldn’t have been expected to) solve this problem, but there’s also no chance whatsoever that a political solution was going to magically materialize had the Court ruled narrowly. The Democrats were doomed in the North after Bleeding Kansas no matter what.

The point about reputation, however is really the heart of the issue, and also tends to be central to defenses of minimalism. The problem, though, is that I don’t really buy it, empirically or normatively. In terms of the reputation of the Court as an institution, given that the Court was far more powerful in the decades following the Civil War than in the decades preceding it, it’s hard to claim that Dred Scott had much lasting impact on the Court’s reputation. (And given most of what the Court was doing in this period, it’s far from self-evident that this is a good thing.) It’s true that the decision destroyed Roger Taney‘s historical reputation, but so what? I’m not sure what’s at stake in ensuring that any particular Chief Justice is held in high esteem. (I do regret that Taney has received undue blame for pathologies that were deeply embedded in American constitutionalism and politics, but I see no reason to compound this historical whitewash by grossly exaggerating the role of the Supreme Court in producing the Civil War.)

And this brings to the normative issue, and the bigger problem: I completely reject the idea that the Supreme Court is entitled to some fixed reputation or level of power, regardless of how it acts. It serves democracy much better for the Court to be explicit about the constitutional values it is advancing, and have its reputation be affected accordingly. There’s no inherent value to a Court that believes in discredited values maintaining its power to affect policy outcomes. Taney’s reputation should have fallen when the country repudiated the Jacksonian Faustian bargain on slavery.