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The Supreme Court: Overrated As Both Hero And Villain

[ 51 ] February 7, 2013 |

In comments to djw’s post about law and social change, Russell Arben Fox argues:

I just wanted to get across the idea that the process of democratic deliberation regarding same-sex marriage is at a highly fluid point right now; has been for 15 years, at least, and probably will continue to be (I think rightly should continue to be) for years to come. As such, it’s not as though our polity, I think, is currently at a point where the harms (which I think exist, just not quite on a constitutionally valid level!) of exclusively recognizing heterosexual marriages are part and parcel of an entrenched, debilitating, hate-filled social life, which of course is what Plessy v. Ferguson had given us.

T. Paine responds:

I suspect you’re confusing cause and effect when you say that Plessy “gave” the US an “entrenched, debilitating, hate-filled social life.” I’d argue that the apartheid-like laws and judicial decisions creating de jure racist separation and domination grew out of that “hate-filled social life,” and not the other way around. There are very few times that the Court leads public opinion (Brown and Loving being inspiring counter-examples, AFAIK).

T. Paine is, I think, clearly correct here. Plessy was essentially a symbolic decision that reflected and already-entrenched consensus; it did almost nothing to cause it. I urge anyone interested in the question to read Klarman’s book on the subject, but to summarize:

  • Segregation was already very well-entrenched by 1896.  Reconstruction had been ended by the Tilden/Hayes deal, and African-Americans had already been disenfranchised everywhere in the confederate states by 1895.
  • Not only did the Supreme Court’s decision merely reflect well-established norms, the segregation laws themselves largely reflected already-existing practice and were largely symbolic.   Segregation was established and enforced primary by (effectively state-sanctioned) private violence and economic coercion; segregation would have persisted even had it not been required by law.
  • To get a sense of how little the Supreme Court would have accomplished by deciding Plessy correctly, one need only look at the areas — jury selection and voting — where the Court even in its worst periods struck down explicitly racist state practices.   These decisions were entirely ineffectual because states were able to accomplish the same ends under laws that were formally race-neutral.
  • And, of course, there was no chance in 1896 that the Court would decide Plessy correctly; the outcome was overdetermined.  The Supreme Court reflects the views of national political elites, and national political elites in the Gilded Age had absolutely no interest in enforcing the Civil War Amendments for any purpose other than nullifying economic regulations.  (Even Harlan’s dissent was explicitly committed to white supremacy.)  Consider, for example, that Congress was not merely authorized but required under Section 2 of the Fourteenth Amendment to respond to disenfranchisement by reducing the representation of the disenfranchising states.  Needless to say, this didn’t happen.  The Supreme Court in Plessy was reflecting the views of national political elites, not creating them.
  • Another potentially bad effect of Plessy could have been creating a bad precedent that made the Supreme Court slower to respond to increasing support for civil rights.  The problem is that the opposite was true; the Supreme Court was well ahead of the curve compared to the rest of the national government in terms of requiring the formal desegregation of both higher and lower levels of education.

Plessy didn’t create a climate of hate; it reflected one.

And as I’ve argued before, the same is true of the other great symbol of 19th Century Supreme Court evil: Dred Scott.  Taney’s views were those of an utterly mainstream Jacksonian Democrat; it didn’t prevent Congress from passing any law there was any chance Congress was going to pass, as the fact that both Buchanan and the Democratic leadership in Congress urged the Supreme Court to rule the way they did reflects; and when Lincoln took office he just ignored the decision, which was overruled by two constitutional amendments less than a decade after he took office.  Had the Supreme Court refused the urging of elected political elites to take and decide the case broadly the Democratic coalition would have fractured over Lecompton anyway,  and had the Supreme Court decided the case in a morally just manner the result would have been secession, only with a Doughface numbnuts in the White House instead of Lincoln.  Just as the positive effects of Brown tend to be overstated, the Supreme Court tends to get blamed for causing deep-rooted political trends it merely reflects.   And I would say Brown mattered substantially more than Plessy or Dred Scott.

…rea in comments:

I’d be curious to see an example of Lincoln ignoring the decision. I’d argue that, on the contrary, he carefully complied with it, although he disagreed with it. The Emancipation Proclamation in particualr was carefully crafted to use the president’s war powers to get around Dred Scott.

Not only did Lincoln’s attorney general grant citizenship status to an African-American, in 1862 he signed legislation banning slavery in the federal territories; I’m not sure how you can repudiate Dred Scott more directly than that. Nor do I understand how the Emancipation Proclamation was altered to accommodate Dred Scott. The EP certainly reflected Lincoln’s view that the federal government could not interfere with slavery in the states that were still in the union, but this has nothing to do with Dred Scott, which was about the federal power to limit slavery in the territories. Moderate Republicans like Lincoln didn’t dispute that the federal government lacked the authority to ban slavery in the states.

Comments (51)

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  1. rea says:

    when Lincoln took office he just ignored the decision [Dred Scott]

    I’d be curious to see an example of Lincoln ignoring the decision. I’d argue that, on the contrary, he carefully complied with it, although he disagreed with it. The Emancipation Proclamation in particualr was carefully crafted to use the president’s war powers to get around Dred Scott

    • Scott Lemieux says:

      See update. I think you may misunderstand what Dred Scott actually held.

      • Joel says:

        I wouldn’t say he ignored Dred Scott. To the contrary, he delivered a blistering refutation of Taney’s decision and Sen. Douglas’s milquetoast defense of it. Then he governed as if Cooper Union was the decision of the court.

        In more lawyerly terms, Lincoln classified the entirety of Taney’s decision as non-binding obiter dicta, with the exception of the holding that Scott’s case was dismissed for want of jurisdiction.

      • Nathanael says:

        Scott: you’re wrong about Dred Scott reflecting the climate.

        While Plessy was clearly in the mainline of elite thought at the time, the Dred Scott decision was waaaaay out there on the pro-slavery side.

        The vast pile of obiter dicta insulting black people and declaring that they could never be citizens was… just wrong. It was out of line with community standards in the North and the West. And people *noticed*.

        There was an uneasy settlement regarding the Fugitive Slave laws at the time, where the Northern states really wanted the Southern states to stop kidnapping their free blacks, and wanted the Southern states to stop traipsing slaves through the free states, and were willing to return actual slaves if the South would keep its side of the bargain. The South was not willing to keep its side of the bargain. People noticed.

        Taney was not mainstream. President Buchanan was mainstream, for what it’s worth. The Dred Scott Decision exposed the mainstream, such as Buchanan, as being merely cover for radical extremist expansion-of-slavery positions such as Taney’s. This led directly to the massive growth in support for the Republican Party and, in the end, the Civil War.

        Arguably, if Taney had simply ducked the case rather than writing volumes of ugly racist dicta, that would have been mainstream.

        • Scott Lemieux says:

          The vast pile of obiter dicta insulting black people and declaring that they could never be citizens was… just wrong. It was out of line with community standards in the North and the West. And people *noticed*.

          Sorry, no. While Taney overreached in saying that free blacks had never been considered American citizens anywhere, American citizenship laws of the time were explicitly white supremacist. The opinion’s assertions about black citizenship were not nearly as controversial as the assertions about congressional power.

          There was an uneasy settlement regarding the Fugitive Slave laws at the time, where the Northern states really wanted the Southern states to stop kidnapping their free blacks, and wanted the Southern states to stop traipsing slaves through the free states, and were willing to return actual slaves if the South would keep its side of the bargain. The South was not willing to keep its side of the bargain. People noticed.

          I agree, but this has nothing to do with Dred Scott, as you concede in saying that had the Supreme Court ducked the case (hence leaving Dred Scott a slave) nobody would remember the case today.

          Taney was not mainstream. President Buchanan was mainstream, for what it’s worth.

          This is just a non-sequitur. Dred Scott was exactly the decision that both Buchanan and the Democtatic leadership in COngress urged the Supreme Court to issue. If that’s not mainstream, what is? Not to mention that Taney was Jackson’s Attorney General. Daniel was the only Southern extremist on the Court by the standards of the time. Taney was a standard-issue Jacksonian Democrat.

          Arguably, if Taney had simply ducked the case rather than writing volumes of ugly racist dicta, that would have been mainstream.

          You assumption that racism wasn’t mainstream in antebellum America is sort of charming but is nonetheless deeply wrong. Slavery was intensely controversial but racism really wasn’t among white political elites. Curtis, one of the Dred Scott dissenters, was a vicious white supremacist.

  2. Sly says:

    To get a sense of how little the Supreme Court would have accomplished by deciding Plessy correctly, one need only look at the areas — jury selection and voting — where the Court even in its worst periods struck down explicitly racist state practices. These decisions were entirely ineffectual because states were able to accomplish the same ends under laws that were formally race-neutral.

    I think a more compelling example of this would be the Cherokee Cases (particularly Worcester v. Georgia), given that they (a) entailed a correctly decided opinions that went against the preferred policy outcomes of political elites and thus went unenforced through other legal means and (b) that they provided much of the intellectual foundation for creation of the 14th Amendment itself, especially as a reaction to Dredd Scott.

  3. root_e says:

    “when Lincoln took office he just ignored the decision,”

    Too bad Glenn Greenwald was not around to lambaste him for his power grab and despotic destruction of the rule of law. Or not.

    Lincoln’s issuance of US passports to african-american sailors was a direct rebuff of Dred-Scott.

  4. T. Paine says:

    Thanks Scott.

    I’ll add that the Court’s reflection of elite opinion and established norms is one more reason to be skeptical of arguments from process about why clearly just judicial decisions are illegitimate. When the Court does away with discrimination, it makes very little sense to privilege legislative enacments or plebiscites that over-empower advocates for inequality.

    And with respect to the issue of same sex marriage (or other forms of discrimination), I don’t really see why the motivation for discrimination matters to Russell Arben Fox. Nobody can identify any non-ludicrous reason for denying marriage rights to same sex couples; meanwhile, those couples are clearly harmed by that discrimination.

    In some ways, it’s like the arguments over someone is “really” a racist. Personal animus is irrelevant when it comes to systemic discrimination – the way to fix it is not to change opponents’ hearts and minds, but to end the discrimination.

    • medrawt says:

      Indeed – the quibbles about whether or not gay marriage opponents are exhibiting an “irrational animus” requires an understanding of what we mean by “irrational” … rather in the vein of the NRO flunkie who took issue with Obama describing the Holocaust as “senseless” – the Nazis had reasons, they weren’t just subject to a collective mass shizophrenia and behaving crazily with no purpose. I am happy to believe that many opponents of gay marriage do not conceive of themselves as hating gay people and do conceive of themselves as having logical reasons for opposing extending them the same legal rights in marriage as straight people enjoy. But I think they’re wrong; the arguments they present are bad logic, bad policy, bad legal history and bad social history. I do not think they arrive at those arguments based on a careful assessment of the extant data, and I do not think they would arrive at them without the predetermined desire to bolster an anti-gay marriage position. To me they are as reflective of an irrational animus as “gays shouldn’t get married because it creeps me out” would be.

      (Just in case he wearily adds: I am not conflating the moral position of Nazis with people who oppose gay marriage.)

    • Glenn says:

      Exactly. I don’t think the Plessy era — regardless of whether you think the Court led or followed (though I certainly agree it was the latter) — was a social milieu that, at least at the time, elites viewed as “hate-filled.” I think they believed themselves to be benignly enforcing a “natural” separation, much in the way that marriage equality opponents claim to be benignly enforcing a “natural” differentiation between same-sex and opposite-sex couples.

      • Richard says:

        I dont think that was true of the South. By the time of Plessy or shortly thereafter, populist demagogues had come to the fore in the South and their support of segregation was hate filled. A little about Governor Vardaman of Mississippi, elected in 1903

        “While Delta planters like LeRoy Percy were busy working to attract and keep African American laborers in Mississippi, their efforts were out of sync with the atmosphere in the rest of the state. Vardaman, a master at manipulating racial hatred for his own political gain, tapped into a groundswell of popular support for white supremacy and began championing the cause.

        Vardaman denounced the education of African Americans as “a positive unkindness that renders him unfit for the work which the white man has prescribed him and which he will be forced to perform.” On the nature of African Americans, he publicly stated that they were, “lazy, lying, lustful animal[s], which no amount of training can transform into a tolerable citizen.” At the time, his sentiments were well received in many segments of the white community.

        Vardaman once went so far as to declare, “if it is necessary every Negro in the state will be lynched; it will be done to maintain white supremacy.”

    • Barry says:

      “I’ll add that the Court’s reflection of elite opinion and established norms is one more reason to be skeptical of arguments from process about why clearly just judicial decisions are illegitimate. When the Court does away with discrimination, it makes very little sense to privilege legislative enacments or plebiscites that over-empower advocates for inequality. ”

      I would only say that if the person making such an argument were to have argued just as loudly, long and often against SCOTUS decisions which they liked.

  5. CJColucci says:

    It has been a long time since I looked at the issue, and I’d want to go over the research before giving an opinion to a paying client, but my impression was that the legally, if not morally, correct result in Dred Scott would have been a dry as dust technical opinion on the effects of transient passage through free states (or territories) upon a slave’s status once the slave returns to a slave state. I believe it was already the law in the federal courts and most state courts that in that situation the slave remained a slave — though things might have been different if the slave sued for freedom while still in a free state. A boring technical opinion, though equally damaging to Mr. Scott, probably would not have been as politically explosive as Taney’s ill-advised attempt to reach out and settle larger issues.

    • Scott Lemieux says:

      I don’t see how the Supreme Court ducking the question — against the explicit urging of Congress and the president — would have made the underlying issues any more resolvable.

      • CJColucci says:

        True, the issues would not have been more resolvable, but they wouldn’t have been aggravated by a Supreme Court that simply stuck to its knitting — we decided this issue in Strauder, now go away — instead of making legally unnecessary pronouncements on whether blacks could ever be citizens and whether Congress (or the territories themselves) could legislate on slavery in the territories. Poor Mr. Scott stays in chains either way, but that was, sadly, probably the legally-correct result.

        • Scott Lemieux says:

          I don’t believe the Supreme Court aggravated the issues in any significant sense, and I especially don’t believe that the white supremacy in Taney’s opinion (which was, after all, almost universally shared by both northern and southern political elites) played any role in bringing about the Civil War.

          • CJColucci says:

            If you mean the war would have happened anyway, I agree with you, but I do think the breadth of the Dred Scott decision, as opposed to a narrow, technical decision under which Scott loses for well-established reasons, would not have fed into the conspiratorial slave power rhetoric, used so powerfully by Lincoln, among others, or the fears that slavery might, under the expansive logic of Dred Scott, be extended to the free states over their objection.

            • Barry says:

              “…the conspiratorial slave power rhetoric,…”

              Why are you using that phrase? Slave power was real, openly practiced, and in fact had the goal of extending slavery to every place it possibly could.

              • Nathanael says:

                Yes, the slave power was a conspiracy. However, it pretended not to be.

                So there was (accurate) rhetoric describing the slave power (accurately) as a conspiracy.

                Taney showed many people (who previously didn’t believe in the conspiracy) that the conspiracy really existed.

          • One of the Blue says:

            I disagree. Dred Scott invalidated anti-slavery clauses in the territorial acts concerning the Pacific Northwest, made the Missouri Compromise and elements of the Compromise of 1850 unconstitutional, and set the stage for even worse rulings (invalidating anti-slavery statutes in northern states) that would have become likely if Lincoln had not been elected President. A President Douglas would have been unlikely to simply ignore Dred Scott as Lincoln did. A President Breckenridge would have embraced it cheerfully.

            Dred Scott failed to be important because the political situation changed more or less overnight, as Northern apathy in the face of the Slave Power’s malicious shenanigans basically ended. And with Lincoln’s election, Free Soil became de facto the law of the land Dred Scott decision or no Dred Scott decision.

            • Scott Lemieux says:

              The ruling that the Missouri Compromise was unconstitutional would have had a much greater impact on the political context had Congress not already repealed it.

              • One of the Blue says:

                Yes, well. I guess I should have said, made the Kansas-Nebraska Act unconstitutional. The quibble, though accurate, doesn’t rebut my point at all.

                • Scott Lemieux says:

                  made the Kansas-Nebraska Act unconstitutional.

                  How? Dred Scott was perfectly consistent with “popular sovereignty,” which is why it didn’t stop the Democratic coalition’s inevitable collapse. Dred Scott didn’t require a national slave code.

                • Nathanael says:

                  Taney’s dicta in Dred Scott DID require a national slave code.

                  Read it carefully. Taney claimed that there could be no free black citizens anywhere in the US.

                • Scott Lemieux says:

                  Taney’s dicta in Dred Scott DID require a national slave code.

                  Read it carefully. Taney claimed that there could be no free black citizens anywhere in the US.

                  You’re just wrong. He said that free blacks couldn’t be citizens. He didn’t say that there was no such thing as free blacks.

    • Nathanael says:

      The state court opinions actually held that deliberate passage through free states, taken deliberately by the actions of the owner or his agent, rendered slaves free *if* they proceeded to demand freedom *while* in a free state. This was in keeping with English legal tradition on slavery.

      In contrast, if a slave was actually a fugitive or had entered a free state without authorization of the owner or the owner’s agent, the slave had to be returned.

      If the slave had already been returned without claiming freedom while in the free state the case would generally have been found to be moot.

      That was the state of the law before Dred Scott.

  6. Mark Field says:

    The controversy over Dred Scott in the North had little to do with the citizenship ruling, except among Abolitionists. It was the Missouri Compromise part of the opinion that generated the outcry among even those who cared nothing about the rights of blacks.

    Taney’s opinion declared unconstitutional the whole basis of the Republican party. In addition, the logic of the opinion gave rise to concerns that the next step would be to use the 5th A to enforce slavery even within free states (as Lincoln argued). That may not seem likely, but the reasoning could be used for that purpose.

    • Nathanael says:

      Exactly correct. Taney’s dicta claimed that all states, even free states, must enforce slavery!

      This was unacceptable and set off the civil war.

      • Scott Lemieux says:

        Taney’s dicta claimed that all states, even free states, must enforce slavery!

        No, it didn’t. Fugitive slaves had to be returned because of a federal statute; this had nothing to do with Dred Scott. States were not remotely required by Dred Scott to create their own slave codes.

  7. kgus says:

    A minor quibble:

    “the result would have been secession, only with a Doughface numbnuts in the White House instead of Lincoln”

    Buchanan was the president when all the Confederate states seceded, not Lincoln. It is sometimes forgotten that the secession was a reaction to Lincoln’s election, not anything he did in office — as it was completed before his inauguration.

  8. shah8 says:

    This makes Bush vs Gore stand out even more.

  9. wengler says:

    The Court has no power in itself. I think this is one of the reasons why Roberts switched positions in the attempted destruction of Obamacare. He knew it was a losing proposition to grab that power.

    I think the concept of judicial review has been highlighted as a way to break impasses through a divided and helpless government, at least in the second half of the 20th Century. In the past, present, and foreseeable future, however, it will retain its traditional role as the most conservative, obstructionist force in America.

  10. LeeEsq says:

    Wasn’t a lot of segregationist policies formalized through legislation after Plessy though? At least from what I’m remembering is that most of the legislation that created the legal framework for segregation was passed after Plessy. Before Plessy, it was more a question of practice rather than actual law.

    So Plessy might have been a symbolic decision but many Southern states did not formalize segregation through legislation until the Supreme Court gave them permission to do so. While the Supreme Court’s decision in Plessy did not lead to segregation, it did create the impetus to make it into something more concrete than what it previously was.

    • Richard says:

      I dont think thats accurate. I think the majority of Jim Crow laws were passed before Plessy although some were passed after it. Obviously the railroad car rule which Plessy challenged in Louisiana was passed before that decision (1890) but that seems to be the case for many of the state laws.

  11. Joe says:

    As Plessy noted, when a suit was taken in antebellum Boston — yes before the 14A but we are still talking MA here — the courts upheld school segregation.

    David Souter in his Harvard speech (which was a classic imho) had it right — the justices spoke at a particular time & given what they knew, even the form of equality present was a big step from slavery. By the time of Brown, it wasn’t as impressive.

    Prof. Fehrenbacher cautioned on the value of trying to determine the exact “holding” of Dred Scott though the EP reference is a bit off even there. The ruling went beyond the territorial issue to make general claims over black citizenship … in fact, over ANY constitutional rights for blacks. The former was not as radical (if a matter of dispute) but the latter … well Lincoln bowed to racism, but the idea blacks had “no rights a white man can respect” was too much for him and others.

    • Joe says:

      The exact phrase is “so far inferior that they had no rights which the white man was bound to respect” … which makes it hard to understand how so many had the “right” to emancipation in so may cases.

    • xenos says:

      As Plessy noted, when a suit was taken in antebellum Boston — yes before the 14A but we are still talking MA here — the courts upheld school segregation.

      That was a deeply dishonest bit of legerdemain. Lemuel Shaw’s decision in Roberts was in 1849. Suggesting that Shaw would have ruled as he did if that case came up after the enactment of the XIVth amendment is just outrageous.

      • Joe says:

        Why? MA courts in the 1780s long before the 13A held that slavery was illegal in the state. The ruling there was based on there being in MA a rule upholding the principle “equal before the law.” And, even with this rule, in a state that treated blacks more equally than most, segregation was allowed. What specifically about the 14a command would do more than protect equality before the law?

  12. Domino says:

    I thought the biggest (and most controversial) part about the IE is that it changed the attitude of the War for people in the Union from “We do not recognize the South as it’s own country and are only trying to re-unite the American dream,” to “We are still trying to do that, but also slavery is a bad thing and african-american men deserve the right to vote.”

    Am I off with this?

  13. [...] was confirmed 25-5. And so on.  Plessy and Dred Scott, like most bad Supreme Court decisions, are much more of symptoms of a bad political mainstream than causes, and hence are evils the filibuster is particularly unlikely to prevent.)   The only successful [...]

  14. […] Scott, despite its prominence as a symbol, is also notable for its lack of substantive impact on national policy both coming and going.  In 1857, its holdings were irrelevant because congressional majorities and […]

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