- - - Pace Law Review - - - (2017). 2 

2 ^ William B. Bates Chair in the Administration of Justice and Professor of Law, University of Texas Law School, Austin 78705; https://law.utexas.edu/faculty/lw482/; http://ssrn.com/author=482100. Comments gratefully received at lweinberg@law.utexas.edu.

3 ^ See Planned Parenthood v. Casey, 505 U.S. 833, 833 (1992) (Scalia, J., dissenting) (describing the portrait of Chief Justice Taney, with its well-known dour scowl: “[“T]hose of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case — its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation — burning on his mind.” Amusingly characterizing Scalia’s remark as “the Dorian Grey theory of constitutional interpretation,” see Christopher L. Eisgruber, Dred Again: Originalism's Forgotten Past, 20 Const. Comment. 37, 37 (1993). Scalia’s view has been predominant at least since the segregationist period in American history. See, e.g., 1 H. Carson, The Supreme Court of the United States: Its History 336 (1891) (commending the Taney Court, except for its slavery cases); Charles Noble Gregory, A Great Judicial Character, Roger Brooke Taney, 18 Yale L. J. 10 (1908) (commending Chief Justice Taney).

4 ^ Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 406 (1857) (holding, inter alia, that a black citizen of a state could never be a citizen of the United States): “The question . . . arises, whether the . . . Constitution . . . embraced the negro African race . . ; and . . . put it in the power of a single State to make [a negro] a citizen of the United States[?] . . . The court think the affirmative of these propositions cannot be maintained.”

5 ^ Readers of this essay will be familiar with the Court’s long descent from John Marshall’s largeness of vision to what amounted, at last, to a narrow anti-Lincoln obstructionism, culminating, even before the War, in Taney’s late blooming disingenuous nationalism in Ableman v. Booth, 62 U.S. (21 How.) 506 (1859). Taney’s obstructionism during the Civil War is seen more particularly in opinions he handed down sitting on circuit in the District of Columbia; see James F. Simon, Lincoln and Chief Justice Taney, Slavery, Secession and the President's War Powers (2006) (examining this phenomenon); Cf. Timothy S. Huebner, Lincoln versus Taney: Liberty, Power, and the Clash of the Constitutional Titans, 3 Alb. Gov't L. Rev. (2010) (semble). See generally R. Kent Newmyer, The Supreme Court under Marshall and Taney (2005); Carl Brent Swisher, The Taney Period, 1836-64 (Oliver Wendell Holmes Devise: History of the Supreme Court of the United States (1974).

6 ^ See Karl Popper, The Poverty of Historicism (2002) (arguing that placing the past into its own frameworks strips the historian of the critical faculty and of a needed perspective); but see the critique of presentism, at least when it is triumphalist, in Herbert Butterfield, The Whig Interpretation of History (1965). Butterfield’s aversion to fatuous assumptions of progress, persuasive as it is, seems to me to invite moral relativism.

7 ^ The splendid example, of course, is McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (holding — in the course of limning out the national powers over matters “necessary and proper” with visionary understandings of the Union, of the Constitution, and of constitutional interpretation — that Congress has power to establish a national bank).

8 ^ See Arthur J. Jacobson, Publishing Dissent, 62 Wash. & Lee L. Rev., 1607, 1608 (2005); John P. Kelsh, Opinion Delivery Practices of the United States Supreme Court 1790-1945, 77 Wash. U. L. Q. 137, 141 (1999).

9 ^ Dred Scott is a conspicuous example of this phenomenon. Some of the Justices in Dred Scott were concerned about other issues, but in Taney’s opinion, which tradition makes the opinion of the Court, the core of the case was the constitutionality, under the Fifth Amendment’s due process clause, of the Missouri Compromise of 1820, Act of March 6, 1820, ch. 22, 3 Stat. 545, as that legislation affected the liberty and “property” of travelers to the territories from the slave states. Dred Scott, 60 U.S., at 450. Justice Wayne, totting up the votes, concluded that six of the Justices, including the Chief Justice, agreed that the Missouri Compromise was unconstitutional. Id., at 437.

10 ^ See, e.g., The Passenger Cases, 48 U.S. (7 How.) 283 (1849); The License Cases, 46 U.S. (5 How.) 504 (1847) (notwithstanding unanimity on the result). For a less critical view of the Taney Court, see, e.g., John R. Schmidhauser, Judicial Behavior and the Sectional Crisis of 1837-1860, 23 J. Pol. 615 (1961). See infra notes 55-56 and accompanying text (on Taney’s failed effort to keep up the Marshallian tradition of collegiality and bonhomie among the brethren). This last casts some light, perhaps, on Taney’s lack of interest in gaining, or inability to gain, more unanimity in the Court’s decisions).

11 ^ Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420 (1837) (holding that a state has power to authorize internal improvements even in derogation of previously granted monopolistic rights). Justices Story and McLean dissented, reflecting Whig views in opposition to Jacksonian views. The case pitched the obligation of contract and vested rights of property against the evolving needs of the public. The case stirred up considerable partisan bickering but seems quite unexceptionable today. In my thinking, the state’s abrogation of its prior commitments was lawful, given its legitimate governmental interest in the growing needs of the public. It is important to my thinking that the legislation at issue made due provision for compensation to the proprietor(s) of the existing bridge(s). Id., at 424. Although Harvard could not claim either a “deprivation” or a “taking,” since the Fourteenth Amendment did not then exist, I am not clear about the bearing of the Contracts Clause, but I believe that had the statute failed to provide compensation for Harvard, Harvard would have had a right to sue for it under some theory. There is a useful old analogy from the private law of tort. A neighbor’s blanket may be taken to put out a fire, but the blanket must then be paid for.

12 ^ 22 U.S. 1 (1824) (holding that monopoly rights must give way to the freedom of navigation in internal waters).

13 ^ 53 (12 How.) 299 (1852) (Curtis, J.). See, e.g., Paul Finkelman, “The Taney Court, 1836-1864: The Jurisprudence of Slavery and the Crisis of the Union,” in The United States Supreme Court: The Pursuit of Justice 80 (Christopher Tomlins ed., 2005).

14 ^ 40 U.S. 518 (1841).

15 ^ Steven Spielberg’s film, Amistad (1997) has enhanced the interest of the case in our time.

16 ^ 41 U.S. (16 Pet.) 1 (1842).

17 ^ Id.

18 ^ 49 U.S. (8 How.) 441 (1850).

19 ^ Taney concurred in the judgment in Prigg, 41 U.S., at 626, but expressed differences on issues with respect to which he believed Story’s opinion had been too liberal or too expansive of national power.

20 ^ E.g., Strader v. Graham, 51 U.S. (10 How.) 82 (1850) (Taney, C.J.) (holding that the status, slave or free, of an escaped slave, was determinable exclusively by the slave’s domicile, which was the present domicile of the master, i.e., a slave state).

21 ^ E.g., Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861) (Taney, C.J.) (holding that a state could not be excused from the duty of extradition of a fugitive on the ground that it was a free state).

22 ^ For the improbability of these alternatives see George Ticknor Curtis, The Dred Scott Case as Remembered by Justice Curtis’s Family: An Abridged and Illustrated Excerpt from a Memoir of Benjamin Robbins Curtis, LL.D. (1879), 10 Green Bag 2d 213, 220 (2007) (recording Justice Curtis’s resignation and touching on the internecine struggle over the timing of Taney’s publication of his final opinion in Dred Scott, which he had withheld from the Justices).

23 ^ 48 U.S. (7 How.) 1 (1849).

24 ^ See, e.g., Kentucky v. Dennison, 65 U.S. (24 How.) 66, 102 (1861) (Taney, C.J.) (holding it no excuse for failure to return a fugitive that the state from which extradition is sought is a free state); Strader v. Graham, 51 U.S. (10 How.) 82 (1850) (Taney, C.J.) (holding that the status, slave or free, of an escaped slave, was determinable exclusively by the law of the slave state from which the slave fled); see Swisher, The Taney Period, supra note 5, at 677-92; Stephen R. McAllister, A Marbury v. Madison Moment on the Eve of the Civil War, 14 Green Bag 2d 405 (2011) (viewing Dennison as a pivoting case in the crisis of 1861).

25 ^ See supra note 5.

26 ^ With Michael J. C. Taylor, “A More Perfect Union”: Ableman v. Booth and the Culmination of Federal Sovereignty, 28 J. Sup. Ct. Hist. 101, 113 (2003), compare Louise Weinberg, Methodological Interventions and the Slavery Cases, or, Night-Thoughts of a Legal Realist, 56 Md. L. Rev. 1316, 1325-25, 1358 (1997).

27 ^ Roger Brooke Taney, Letter (1856), as excerpted in Swisher, The Taney Period, supra note 5, at 609.

28 ^ For an account of antebellum grievances, legitimate and imagined, see Louise Weinberg, Dred Scott and the Crisis of 1860, 82 Chi-Kent L. Rev. 97 (2007).

29 ^ I have provided a similarly brief glimpse into the judgment and character of John Marshall in recounting how Marshall came to be nominated to the Chief Justiceship. Louise Weinberg, Our Marbury, 89 Va. L. Rev. 1235, 1245-60 (2003). That portrait makes an interesting contrast with the story, recounted here, of Taney’s ascendancy to the Court.

30 ^ For background on Jackson, see, recently, William Brown, Andrew Jackson (2015); see also Robert V. Remini, Andrew Jackson (1999).

31 ^ Jackson’s thinking was in the long Jeffersonian tradition of distrust of the Bank and other of Hamilton’s fiscal ideas, as favoring the development of an oligarchy at the expense of the many. See James Willard Hurst, Alexander Hamilton, Law Maker, 78 Colum. L. Rev. 483, 493 (1978) (ascribing contemporaneous opposition to Hamilton's fiscal plan to a view of Hamilton as “determined to create a large, permanent public debt, to help put the country under governance of a wealthy oligarchy.” Writers point out that there was considerable corruption in the Bank. The petitioner in McCulloch v. Maryland was hardly innocent. See William L. Reynolds, Maryland and the Constitution of the United States: An Introductory Essay, 66 Md. L. Rev. 923, 939 (2007) (describing serious corruption at the Bank in Maryland).

32 ^ Jackson’s eventual triumph over the Bank explains how it was that the United States came to muddle along without central banking until 1863, when, in the agony of Civil War the Republican Congress, cleared of its Southern representatives, finally restored central banking to the United States. Act of February 25, 1863, 12 Stat. 665. In this the radical Republican Congress exercised the national power envisioned by Chief Justice Marshall in the case sustaining the power of Congress to establish a national bank, the case that had enraged the South more than any other, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). The Bank’s current incarnation, in its essential features, is familiarly known as “the Fed.”

33 ^ See George Rogers Taylor, Jackson vs. Biddle's Bank: The Struggle over the Second Bank of the United States (1972); John Thom Holdsworth, The First Bank of the United States 90-98 (1910).

34 ^ See Congressional Serial Set 38 (1893).

35 ^ The antebellum financial system was even more fragile then than now. Each bank issued its own notes, and refused to accept notes when loans were called in, some even refusing to accept their own. See generally Howard Bodenhorn, State Banking in Early America ( 2003); Ernest Ludlow Bogart, An Economic History of the United States (1923); Clemente Juglar, A Brief History of Panics (1916). As the Bank of the United States called in its loans it was not improbable that a cascade of bank failures in the states would follow. In their nature banks are not fully capitalized, and there was no program then of federal deposit insurance. Panics and depressions were common and lasting.

36 ^ The following account is a composite drawn from many sources, including Bob Woodward & Carl Bernstein, All the President’s Men (2014); Stanley Kutler, The Wars of Watergate: The Last Crisis of Richard Nixon (1992).

37 ^ Carroll Kilpatrick, "Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit: President Abolishes Prosecutor's Office; FBI Seals Records," Washington Post (October 21, 1973), at p. A1.

38 ^ Although President Nixon had declared his intention to put an end to the very office of independent prosecutor, see supra note 28, in the face of outcry he appointed Leon Jaworski Special Prosecutor to take Cox’s place.

39 ^ Disclosure: At Harvard, I was among Archibald Cox’s ten hand-picked students in his constitutional law seminar. (“I had thought you to be Mr., not Mrs.,” Cox said accusingly, as it was my turn to introduce myself). In extenuation of Cox’s awfulness on that occasion, I confess that I was as blind to it at the time as Cox was. Cox was equally blind to the purport of his war stories, and this I did see for what it was. He boasted to us that, as Solicitor General in the Kennedy Administration, in arguing to the Court in the desegregation and “sit-in” cases of that period, his effort had been to provide the Court with “prudent” alternatives to striking down segregationist state laws under the Constitution. Instead, Cox focused his arguments on narrow definitions of state “trespass” laws and similar expedients, enabling him to spare the Supreme Court from having to establish the constitutional rights of black Americans. He was a true believer in “the passive virtues” that had been so important to New Dealers, but in very different times were persuading courts not to enforce the Constitution. See, famously, Alexander M. Bickel, The Supreme Court 1960 Term — Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961).

40 ^ Robert Bork was a law professor and author of an influential book on antitrust law when President Reagan nominated him to the D.C. Circuit, where his bellwether right-wing convictions became apparent. When Reagan nominated him to the Supreme Court, Congress’s treatment of him during confirmation hearings gave rise to a new verb, “to Bork.” It is still complained that Bork was unfairly depicted during the hearings as an extremist out of step with mainstream American thinking. Subsequently Bork became a best-selling author of right-wing tracts.

41 ^ See, e.g., Justice Blackmun’s well-known “Poor Joshua!” opinion dissenting in DeShaney v. Winnebago, 489 U.S. 189, 212-213 (1989).

42 ^ See Ralph E. Shaffer, The Bork Hearings: Highlights from the Most Controversial Judicial Confirmation Battle in U.S. History (2005).

43 ^ “On This Day: Senate rejects Robert Bork for the Supreme Court,” National Constitution Center (October 23, 2015), http://blog.constitutioncenter.org/2015/10/on-this-day-senate-rejects-robert-bork-for-the-supreme-court/.

44 ^ 410 U.S. 113 (1973).

45 ^ See, e.g., Gonzales v Carhart, 550 U.S. 124 (2007) (in the wake of the retirement of Justice O’Connor and her replacement by Justice Alito, sustaining the Partial-Birth Abortion Ban Act of 2003(Act), 18 U.S.C. § 1531 (2000 ed., Supp. IV, on the thinking that the procedure outlawed was never necessary for the health of the mother); cf. Stenberg v. Carhart, 530 U.S. 914 (2000) (striking down a state anti-abortion law to similar effect because failing to provide for the health of the mother); see Planned Parenthood v. Casey, 505 U.S. 833 (1992) (sustaining numerous features of Pennsylvania anti-Abortion law, except a provision for spousal notification).

46 ^ The following account is a composite drawn from several sources including George Rogers Taylor, Jackson vs Biddle's Bank: The Struggle over the Second Bank of the United States (1972); Robert V. Rimini, Andrew Jackson and the Bank War (1967).

47 ^ This was Daniel Webster’s barb in the Senate debate on Taney’s nomination to the Court. Simon, Lincoln and Chief Justice Taney, at 25.

48 ^ R. Kent Newmyer, The Supreme Court under Marshall and Taney (1968), at 93.

49 ^ A view many readers may share, recalling the global economic collapse of 2008, which has been attributable in large part to improvident banking. In fact, banks take the lion’s share of blame in the long history of recurrent “panics” in the United States. See supra note 36.

50 ^ See Philip Hone, The Diary of Philip Hone, 1828-1851 (1910) (1889), at 148-149: “The papers contain a report that the President has appointed Roger B. Taney Chief Justice of the United States in the place of the lamented John Marshall. Mr. [Taney’s] . . . slavish devotion to General Jackson . . . led him during his short career as Secretary of the Treasury to perform an act of subserviency which must ‘damn him to everlasting fame’ . . . .” (MS, Archive, N.Y. Pub. Lib.).

51 ^ John Marshall’s greatness requires no defenders, but for a thorough refutation of the latter-day revisionism that would dishonor his achievement in Marbury v. Madison, see Louise Weinberg, Our Marbury, 89 Va. L. Rev. 1235-1312 (2003).

52 ^ Among his other accomplishments, Story was first Dane Professor of Law at Harvard University, and the author of Joseph Story, Commentaries on the Constitution of the United States (1833).

53 ^ 14 U.S. 304 (1 Wheat.) 304 (1816) (holding that the clear tenor of the Constitution, arts. III and VI, required Supreme Court review of federal questions decided in the state courts).

54 ^ R. Kent Newmyer, The Supreme Court under Marshall and Taney (1986), at 93.

55 ^ Del Dickson, The Supreme Court in Conference, 1940-1985 (2001), at 43 (reviewing earlier history of judicial conferences).

56 ^ See George Ticknor Curtis, The Dred Scott Case as Remembered by Justice Curtis’s Family: An Abridged and Illustrated Excerpt from a Memoir of Benjamin Robbins Curtis, LL.D. (1879), 10 Green Bag 2d 213, 220 (2007).

57 ^ 48 U.S. (7 How.) 1 (1849) (Taney, C.J.).

58 ^ After Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 739, 819) (1824), courts thought it necessary, in cases against state officials, in which the state itself was immune and could not be named as party of record, that the defendant official should have, in his own capacity, committed some trespassory tort. This remained a feature of suits against government until Ex parte Young, 209 U.S. 123 (1908). The arrest in Luther, by trespass quare clausum fregit, also seems likely to have been staged, in part to achieve diversity, and thus federal, jurisdiction, there existing no federal-question jurisdiction in federal trial courts until 1875. This was the arrest, after the collapse of the Dorr rebellion in Rhode Island, of a Dorrite, an alleged citizen of Massachusetts, by a Rhode Island officer. It was alleged that the arrest was effect by an officer of the Charter government Rhode Island, and that that government was illegitimate, and that the only legitimate government of Rhode Island was the government elected under the Dorrites’ new constitution. 48 U.S. 1, 2. This Dorrite’s alleged Massachusetts citizenship enabled the litigation to meet the requirements of the diversity jurisdiction, then in the Circuit Courts.

59 ^ Luther, 48 U.S., at 3; cf. Brett W. King, Wild Political Dreaming: Historical Context, Popular Sovereignty, and Supermajority Rules, 2 U. Pa. J. Const. L. 609, 610 (2000) (seeing Luther as “a dispute over the legitimacy of competing state governments”).

60 ^ 48 U.S., at 39 (Taney C.J.) (“[T]he inquiry proposed to be made belong[s] to the political power and not to the judicial. . . .”).

61

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