Before I start here, I want to make something crystal clear: there will be no defense in this post of Dred Scott v. Sandford (1857). This is the least defensible part of Chief Justice Roger B. Taney’s (1777-1864) legacy, it is the worst decision in the history of the Supreme Court, and it was based in historical illiteracy. This is the primary reason the House voted to remove his bust from the Capitol along with that of Confederates. However, I will defend his overall legacy on the court and by extension why his bust should stay. Before I write my defense, I will outline the case against him.
The Case Against Taney
Given the rise of “woke” culture that has its basis in Frankfurt school neo-Marxism, the culture’s devoted adherents want to reexamine and deconstruct American monuments, memorials, culture, and even legal traditions. As part of this, Congress was persuaded to pass legislation that would remove the busts of Confederates as well as Chief Justice Roger B. Taney from the Capitol. Taney’s offenses include his racism, the sort of which was widely held in his day, and especially his ruling in Dred Scott v. Sandford (1857), which ruled that black people were not and had never been citizens of the United States, free or enslaved and struck down the Missouri Compromise limiting slavery. This reflected Taney’s long-held view that blacks lived and worked in the United States by the tolerance of the American people, thus they had privileges rather than rights of citizens.
Taney and his fellow justices had hoped this decision would resolve the controversy of slavery, but instead it inflamed it and resulted in the only resignation on principle in history from the Supreme Court: Justice Benjamin Curtis, the only Whig justice, who wrote an extensive dissent that disputed the historical accuracy of Taney’s citizenship claim and noted that black men could at the time of the Constitution’s ratification vote in five of the thirteen original states, called it quits after the decision. Worse yet, President James Buchanan had applied pressure to the Supreme Court to rule this way and convinced Northerner Robert Cooper Grier to side with the majority to prevent the decision from being thought of as “sectional”. Such influence was highly irregular and would be regarded today as improper. The 14th Amendment itself was a direct overturning of the Dred Scott decision.
During the Civil War, although Taney didn’t jump ship for the Confederacy, he sympathized with the Southern states in their secession. As noted by Tewell (2016), Taney wrote to former President Franklin Pierce during the war stating, “that a peaceful separation, with free institutions in each section is far better than the union of all the present states under a military government, and a reign of terror preceded too by a civil war with all its horrors”. He blamed President Lincoln and the Republicans for the Civil War and voted against the decision in the Prize Cases, which permitted Lincoln to blockade Southern ports, a vital prerequisite for winning the War of the Rebellion. Taney regarded Lincoln’s war policies generally as unconstitutional. It does seem quite fitting that the punishment for a Chief Justice who engaged in historical illiteracy in his worst ruling would be a removal of his bust from the Capitol.
However, Taney was Chief Justice for a whopping 28 years: 1836 to 1864. There certainly was more that this Professor Snape looking character did than Dred Scott and his reluctance regarding the Civil War, right? Indeed, there was, and it is why I make the case for his bust to stay.
The Case For Taney
While making this case, I want to give a little background on Roger B. Taney himself. He grew up in an aristocratic Maryland family which had owned slaves. Taney himself, however, was not personally favorable to the practice and freed all the slaves he inherited by the 1820s. In 1818, he defended Reverend Jacob Gruber, an abolitionist who was accused of trying to foment a slave rebellion after issuing a strong anti-slavery sermon, and in the process stated, “Slavery…is a blot on our national character…every real lover of freedom confidently hopes that it will be effectually, though it must be gradually, wiped away…every friend of humanity will seek to lighten the galling chain of slavery, and better, to the utmost of his power, the wretched condition of the slave” (Bender). Although originally a Federalist, Taney broke with the party over its opposition to the War of 1812. He eventually came to support Andrew Jackson’s campaigns and after the Petticoat Affair that resulted in him firing almost his entire cabinet, he appointed Taney Attorney General. President Jackson later appointed him Secretary of the Treasury, where he relied directly upon Taney to carry out the demise of the Second Bank of the United States, which he executed with gusto. This led him to be, like Martin Van Buren, one of the people Jackson felt he could trust. In 1836, Jackson rewarded him by nominating him to succeed the late John Marshall as Chief Justice of the Supreme Court. Taney was regarded by Whigs as something of a partisan hack and Senator Henry Clay of Kentucky led the opposition to his confirmation. His confirmation, however, was in one way a political masterstroke: he was the first Catholic to ever sit on the Supreme Court, and this helped win Catholic voters to the Democratic Party. They would be largely unified in affiliation until Roe v. Wade in 1973.
Although pop history and the press condemns him as if his only legacy were Dred Scott, opinions of him from those who have studied the court and those who served with him on the court are drastically different. The late legal scholar Bernard Schwartz ranked Taney the third greatest justice of all time in 1995. Taney served as a counterbalance to the old Federalist justices who were ultra-supportive of property rights. The Jacksonian spirit of the time was, as a Jacksonian editor put it, “We believe property should be held subordinate to man, and not man to property, and therefore that it is always lawful to make such modifications of its constitution as the good of Humanity requires” (Schwartz, 103). This doesn’t sound out of step at all with the views of the modern Democratic Party. Taney established the constitutional concept of police power, which can be employed to limit property rights and held that property rights must be able to be controlled by the public. If many contemporary liberals were not so focused on identity politics, they might even recognize him as an economic progressive for his time. However, Taney tempered his view of public rights and the anti-corporate nature of the Jacksonian Democrats in his some of his most monumental decisions: Charles River Bridge v. Warren Bridge (1837) and Bank of Augusta v. Earle (1839). In the former case, the Charles River Bridge Company had constructed a bridge between Boston and Charlestown in 1785, with a contract of 40 years of toll collection before the bridge was turned over to the state. The legislature expanded this to 70 years in 1792. There was growing public frustration by the 1820s over the continued collection of tolls by the wealthy Charles River Bridge Company and their refusal to make improvements to the bridge. In 1828, the legislature granted the Warren Bridge Company a charter to build a new bridge only 275 yards away from the old one, placing it in direct competition. The Charles River Bridge Company sued, alleging that under Article I, Section 10 of the Constitution this was illegal: “No State shall…pass any Bill of Attainder, ex post facto Law, impairing the Obligation of Contracts…” (U.S. const. art I., § 10). The Warren Bridge Company held that this contract was not exclusive and that the original didn’t explicitly prohibit the construction of a new bridge. Although the case was first considered under Chief Justice John Marshall, the case was delayed for years and during that time he died and Andrew Jackson had appointed three new justices. Furthermore, the old bridge had closed as the new toll free bridge from the Warren Bridge Company had been constructed.
Taney ruled in favor of the Warren Bridge Company that the contract for the construction of a bridge had not been the exclusive right of the Charles River Bridge Company, while dissenting Justice Joseph Story considered the contract with Charles Bridge to have been implied to be exclusive. The decision was interpreted as a victory for Jacksonian state’s rights advocates while for the Whigs it was interpreted as a loss for property rights. Taney, however, was not as keen as his critics feared that he would tear down the federalism of his predecessor. He tempered it and in some ways he even expanded it. In Augusta, Taney ruled that a state was permitted to prohibit a foreign business from doing business in the state or could regulate said business, but that such conditions must be explicitly stated. Businesses existing in one state were permitted to make contracts and do business in other states. The only dissenter was Jacksonian John McKinley. Had the contrary position been adopted, it would have seriously strained interstate commerce. Through his philosophy which largely upheld Marshall’s jurisprudence while adding a Jacksonian emphasis on public interest, Taney won over many former foes, including Henry Clay, who came to respect his character. Even Benjamin Curtis, who resigned over the decision Taney engineered, thought of him as a “man of singular purity of life and character” (Cotter). Justice Samuel F. Miller, a Lincoln appointee who had initially despised him, reached a similar conclusion about him. Felix Frankfurter credited Taney as the justice “who adapted the Constitution to the emerging forces of modern economic society” (107). Another great Chief Justice, Charles Evans Hughes, who distinctly stood against racism in his time on the court and authored the opinion in the Scottsboro case, concurred with this assessment. He wrote in his ABA article, Roger Brooke Taney: A Great Chief Justice, “It is unfortunate that the estimate of Chief Justice Taney’s judicial labors should have been so largely influenced by the opinion which he delivered in the case of Dred Scott. . . . [T]he Dred Scott cased passed into history as an event pregnant with political consequences of the highest importance, and having a most serious effect upon the prestige of the Court. . . . Nothing could be more unjust than to estimate the judicial work of the days of Taney by a disproportionate emphasis upon the decisions which were called forth by the vexed questions growing out of the institution of slavery and the prospect of its extension. Rather I should like to take this opportunity to recognize the importance services of Chief Justice Taney in setting forth principles that are guiding stars in constitutional interpretation. . . .” (Cotter).
Chief Justice Taney was fundamental in the formation of American constitutional law, yet our newspapers choose to only emphasize his very worst decision, Dred Scott. This says more about contemporary politics than it does about his. It is also worth noting that he opposed the suspension of habeas corpus during the Civil War through his opinion in Ex parte Merryman in 1861, holding that only Congress can suspend habeas corpus. The Lincoln Administration ignored this opinion, but his opinion has attracted support from contemporary legal experts. Praise for his legacy can again be found from Felix Frankfurter, who went on to state about him, “The devastation of the Civil War for a long time obliterated the truth about Taney. And the blaze of Marshall’s glory will permanently overshadow him. But the intellectual power of his opinions and their enduring contribution to a workable adjustment of the theoretical distribution of authority between two governments for a single people, place Taney second only to Marshall in the constitutional history of our country” (Schwartz 108).
Taney’s spot is deserved for his contribution to the development of American jurisprudence. He could have reversed the course of John Marshall to a radical view of state’s rights that would have hindered the development of commerce, but instead he built upon Marshall’s work while adding some alterations of his own. He developed the concept of police power in the name of placing restraints on the power of burgeoning corporations, a stance which progressives could hardly disagree. While I personally would not agree with all his decisions, I acknowledge his contributions and many of his precedents stand to this day. I have written on monuments and memorials before, and a bust to Taney is not meant to celebrate the worst of his career, it is to recognize his contributions to American jurisprudence, for which Dred Scott v. Sandford plays no part today thanks to the constitutional remedy of the 14th Amendment.
Bender, B.M. (2018, April 4). America’s Most Infamous Chief Justice: A Profile of Roger B. Taney. Hare & Bell. 3.
Cotter, D. (2019, May 29). Roger B. Taney: One Decision Makes a Legacy, Part II. The National Judicial College.
Schwartz, B. (1995). Supreme Court Superstars: The Ten Greatest Justices. Tulsa Law Review, 31(1).
Tewell, J.J. (2016, October 25). Roger B. Taney Was as Bad as You Think. History News Network.
U.S. const. art I., § 10