A Dredful Decision

It is the one Supreme Court case that the proverbial “every schoolboy” is said to know by name. The unforgettable name itself undoubtedly helped. That and an obscure connection with the coming of the Civil War. Beyond that, however, an experienced teacher of the law has wryly remarked, “The only sensible way of handling the Dred Scott case in class is to ask—hurriedly—if there are any questions on the reading assignments which cover the subject, pray that there will be none, and then pass rapidly on to the Lincoln-Douglas debates.”

The experts have done their bit to confuse the interpretation and obscure the significance of the case. It has long been a standard part of the nation’s legal and historical vocabulary, and lawyers have rated it high among “milestones” of legal history. Apart from their assumption that the case was important, even momentous, however, they agreed on little else. In spite of predominant feeling that the decision of the court was a judicial failure or disaster, the reputation of Chief Justice Roger B. Taney, who wrote the decision, later grew and flourished. His name appeared regularly in the top category of great justices. Professor Felix Frankfurter of Harvard, shortly before his own appointment to the court, placed Taney “second only to Marshall in the constitutional history of our country.” Of this paradox Don Fehrenbacher observes, “There has probably never been a sharper contrast between the reputation of an author and the reputation of his most famous work.” Paradoxes multiply the deeper one goes into the case of Dred Scott versus John F. A. Sanford.

The litigation began simply enough in the efforts of Sam, a slave who later acquired the name Dred Scott, to gain his freedom. John Emerson, an army surgeon, bought him in St. Louis from a family of Virginia origin named Blow and took him to army posts in the free state of Illinois and in parts of the Louisiana Purchase where slavery was forbidden. Scott and his slave wife returned to Missouri, where Emerson was transferred, and there in 1846 after his owner died he brought suit against Emerson’s widow for his freedom on the ground that residence in a free state and free territory made him free. He lost his suit but was granted a retrial and in 1850 won a verdict. Mrs. Emerson then appealed to the Missouri Supreme Court, which reversed the lower court. Scott’s only recourse now was in the Supreme Court of the United States. Meanwhile Mrs. Emerson had remarried and moved to Massachusetts and left the Scott family in St. Louis under control of her brother, John Sanford, who also moved east to New York. This enabled Scott to bring suit from Missouri against a new defendant, Sanford, under the diverse citizenship clause of the Constitution. The circuit court ruled that he might do so but denied him his freedom. His lawyers then appealed the decision on writ of error to the Supreme Court.

The …

This article is available to subscribers only.
Please choose from one of the options below to access this article:

Print Premium Subscription — $94.95

Purchase a print premium subscription (20 issues per year) and also receive online access to all all content on nybooks.com.

Online Subscription — $69.00

Purchase an Online Edition subscription and receive full access to all articles published by the Review since 1963.