Today in Supreme Court History: March 6, 1857

3/6/1857: Dred Scott v. Sandford decided.

Comments

[Dan Schiavetta]

Dred Scott v. Sandford, 60 U.S. 393 (decided March 6, 1857): once-free slave had no claim to freedom in slave state because he was black (probably the most-abrogated case in Court history, by the Civil War, by the Thirteenth, Fourteenth and Fifteenth Amendments, and more) (for some reason Taney did not like Nelson's original "hands-off" affirmance on narrow grounds and took quill in hand to write a sweeping holding that he imagined would settle the slave issue once and for all -- he was 79 and maybe getting feeble) (we all know about the political effect of this disaster, but what about the legal effect? was every lawsuit brought by a black plaintiff dismissed for lack of standing? was every black voter thrown off the rolls?)

McCulloch v. Maryland, 17 U.S. 316 (decided March 6, 1819): Congress can establish a national bank, and the states cannot tax it

Virginia v. West Virginia, 220 U.S. 1 (decided March 6, 1911): In 1861 West Virginia broke away from Virginia because it didn't want to secede and also it wanted to abolish slavery; years later Virginia goes after West Virginia for its share of Virginia's public debt (public projects in those areas). No statute of limitations on suits between states, evidently; suit wasn't brought until 1906. Holmes here holds mostly for Virginia but adjusts the amount based on post-Civil War developments and refuses to let the states further nickel-and-dime things in front of the Special Master. "This case is one that calls for forbearance upon both sides. Great states have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end."

Peña-Rodriguez v. Colorado, 580 U.S. 206 (decided March 6, 2017): Remember "12 Angry Men", and Juror #10's (Ed Begley) racist diatribe? Courts in general hate to undo a verdict based on juror misconduct, but here, where a juror made statements during deliberations showing racial bias, the Court sends the case back to the trial court to see if Sixth Amendment fair trial right was violated. (I'm one of those trial lawyers who asks the jurors after the verdict whether they want to stay behind and give me their impressions. The trial attorney did that here, found this out from one of the other jurors.)

Portuondo v. Agard, 529 U.S. 61 (decided March 6, 2000): Most criminal defense attorneys don't let their clients testify. This case shows why. The prosecutor told the jury that sitting there day by day, hearing witnesses, allowed defendant to tailor his testimony when he got to the stand. The Court says this is o.k.; it did not violate his right to confrontation, or his right to an impartial trial, or his right to testify on his own behalf.

Barnard v. Thorstenn, 489 U.S. 546 (decided March 6, 1989): striking down on Fourteenth Amendment grounds Virgin Islands rule that admits attorneys to its bar only if they've lived there a year and promise to stay there ("no, I'd rather freeze half the year in the Chicago, stuck in traffic jams!")

Adams v. Illinois, 405 U.S. 278 (decided March 6, 1972): rule of Coleman v. Alabama, 1970 (there must be a preliminary hearing and counsel must be present at it) is not retroactive

Silverman v. United States, 365 U.S. 505 (decided March 6, 1961): police in adjacent consenting house bored "spike mike" into shared wall until it hit defendant's vent, which acted as a megaphone, and clearly heard conversations of gambling; this was "search" needing warrant (in 1985 our new crisis center was in a basement needing ventilation; I was about to put in a duct leading to the outside until someone pointed out it would broadcast our clients' secret thoughts out into the street)

Bay v. Merrill & Ring Logging Co., 243 U.S. 40 (decided March 6, 1917): railroad employee could not sue under Federal Employers' Liability Act; railroad's in-state logging (Puget Sound) not involved in interstate commerce even though logs later sold to customer in California

Bond v. Hume, 243 U.S. 15 (decided March 6, 1917): cotton futures contract made in New York could be sued on in Texas federal court; Texas statute prohibiting such contracts on its terms applied only to contracts made in-state

[The Margrave of Azilia]

Portuondo v. Agard:

I recall reading a proposal by a judge that, before the defense got an discovery materials, the defendant would have to sign an affidavit about what he was doing at the time of the alleged offense. This affidavit, sealed, would be given to the court but only opened if the defendant took the stand, so the prosecutor could use it for impeachment in cross-examining the defendant – in case he changed his story as he learned more about the evidence.

Since it would remain sealed during the trial if the defendant *didn’t* testify, the author didn’t think this would violate the right against self-incrimination. How the affidavit would be used in later civil proceedings, the author didn’t say.

(I'm cynical enough I wonder if the cops would find a way to surreptitiously open the affidavit and photograph it to tailor *their* testimony.)

[SRG]

Someone would “accidentally” open the affidavit by mistake, and show it to cops, and in the later appeal to SC, Alito and Thomas would say that it was subject to a good faith exemption etc etc

[Dan Schiavetta]

It said “don't open this envelope!” but the first word was obscured by a coffee stain. Damn coffee stains!!

[John F. Carr]

In rape cases we have the "first complaint" exception to the hearsay rule. The first person she tells about being raped can testify to what she said. This serves the same purpose of guarding against accusations of making stuff up later.

[SRG]

Thank you for that! I had not come across this before.

[Dilan Esper]

Just in general, and not making a point about criminal procedure, this is something you should take into account when it comes to people's protestations of innocence in the court of public opinion. People like Casey Anthony, Amanda Knox, OJ Simpson, etc., have the opportunity to shape their stories and retrofit their claims based on what evidence was later found. I'm not saying it makes any particular person guilty, but you should always keep this in mind and remember that the stories they told BEFORE they knew what the evidence was going to show are going to be more telling than what they said after their cases.

[The Margrave of Azilia]

"(we all know about the political effect of this disaster, but what about the legal effect? was every lawsuit brought by a black plaintiff dismissed for lack of standing? was every black voter thrown off the rolls?)"

Two developments I can think of:

-The Maine high court said that black people could still vote under the Maine constitution, since at least Maine's constitution recognized blacks as citizens.

-Early in the Civil War, the Lincoln administration decided to ignore Taney's opinion and allow free blacks to run certain ships which could legally be operated by citizens only.

[Brett Bellmore]

The irony of the decision is that Taney had actually freed all of his own slaves decades earlier, and even paid pensions to the older ones. In his younger days he'd been opposed to slavery! I'm unaware of any source on why he'd changed his views so dramatically.

Basically the only thing Taney's decision is good for these days is the 'parade of horribles' listing the rights blacks would be entitled to as citizens. It makes a convenient reference when trying to understand the 14th amendment's P&I clause.

His other famous decision, Ex Parte Merryman, has a very different valence to it. Of course, there he was standing up for rights, not trying to quash them. Demonstrating that he was not always on the wrong side of issues.

[Dilan Esper]

I think Taney got "Justice Brain", i.e., the notion that the Supreme Court can swoop in and solve a vexing national issue. It's part of what powered Bush v. Gore, and you can see it in BOTH the Planned Parenthood v. Casey AND Dobbs v. Whole Women's Health opinions (they both contain sweeping passages about how the result of this case will tamp down the fires of the abortion issue). Taney thought if the Supreme Court just imposed this "solution" on the slavery question, everyone would obey it because they were the Supreme Court. As he found out, it doesn't work that way.

[defaultdotxbe]

Many abolitionists still held views we would consider racist today, while they opposed slavery they still believed blacks were inferior to whites and were not deserving of citizenship and the full rights that confers.

[Dr. Ed 2]

"-The Maine high court said that black people could still vote under the Maine constitution, since at least Maine’s constitution recognized blacks as citizens."

Maine's Kennebec River Valley was vehemently anti-slavery, and I always wondered if it was because it had been settled by refugee loyalists 80 years earlier. Prior to the firing on Fort Sumter, Boston wasn't so much because a lot of southern cotton was being woven into fabric in Massachusetts.

While it wasn't binding on Maine, the Mass SJC had ruled the exact opposite way in Commonwealth v. Aves, 35 Mass. 193 (1836) and the Mass SJC had ruled slavery a violation of the MA Constitution in 1801 & 1803 -- my guess is that the language in the state constitution prevailed over Taney's ruling. And don't forget that Benjamin Curtis resigned from SCOTUS over this decision.

[John F. Carr]

Before the 14th Amendment, was there a legal connection between citizenship of a state and citizenship of the United States?

[defaultdotxbe]

I don't believe so, and I think it is still a one-way connection (citizens of the US are citizens of the state in which they reside, but citizens of a state are not necessarily citizens of the US) I think they are functionally the same right now, but theoretically a state could declare non-citizen immigrants to be citizens of the state, but that would not confer US citizenship.

[John F. Carr]

Did Coleman v. Alabama require a preliminary hearing? I skimmed the decision and saw some language about providing counsel if a preliminary hearing was held. One could imagine going direct from indictment to trial, in a jurisdiction with indictments.

[Area Man]

Barnard v. Thorstenn wasn’t decided on 14th Amendment grounds. It was Privileges & Immunities under Article IV.

[Dan Schiavetta]

Margrave:

So it basically had no legal effect! Thanks.

Another “effect”: The Court (at least specifically Taney) had so discredited himself that Lincoln felt free to ignore Taney’s order in In re Merryman.

[The Margrave of Azilia]

I would imagine that *some* states followed it, at least until the war. Maine was considered advanced. Its black population was also fairly small.

But then there’s this in the South Carolina secession declaration:

“This sectional combination for the submersion of the Constitution, has been aided in some of the States by elevating to citizenship, persons who, by the supreme law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety.”

https://avalon.law.yale.edu/19th_century/csa_scarsec.asp

And one of the compromise proposals offered by Stephen Douglas in 1860 was: “The elective franchise and the right to hold office, whether federal, State, territorial, or municipal, shall not be exercised by persons of the African race, in whole or in part.”

http://www.civilwarcauses.org/comp.htm#Stephen%20A.%20Douglas%20of%20Illinois

So much for states' rights to regulate their own domestic affairs.

[Dan Schiavetta]

Thanks.

Douglas was all over the place to hold together the Union/become President, increasingly desperately as war approached. He even lauded the Dred Scott decision.

[The Margrave of Azilia]

He *loved* the part about black people having no rights, and he tried to get around the fact that it spoke of a right to own slaves in the territories.

He liked the rhetorical advantage of being "for the law of the land," but had to explain how he could reconcile the decision with his idea of the settlers in a territory being able to exclude slavery. Lincoln pursued him hard on this subject, suggesting that if Douglas was bound to follow the Supreme Court, he (Douglas) would go along if the Court allowed slavery to extend into the free states - a Dred Scott II. (Which the Court seemed to be coming close to in the Lemon case to doing - the war got in the way).

[Dr. Ed 2]

Taney wrote in his diary that he expected Lincoln to toss him in jail.

[Brett Bellmore]

It wasn't an unreasonable fear, given how many people Lincoln was jailing at the time. He DID jail another judge for acting in accordance with the Merryman decision. He even jailed a member of Congress, then had him released behind Confederate lines, despite his being a citizen of a Union state.

For all that abolishing slavery was a noble cause, Lincoln absolutely was a despot once he got going.

[Dr. Ed 2]

Despot or desperate?

It would have been all over if Maryland had joined the Confederacy, and not just because DC is surrounded by MD & VA but because all of the trains from the north & west — the trains bringing troops and supplies for the war effort — had to travel through Maryland. And there were no tracks through Baltimore (there weren’t until the tunnel under the city was opened in 1873 — a tunnel Amtrak is now replacing).

On April 19, 1861, the 6th Massachusetts had to literally fight its way through the city with 4 soldiers and 12 rioters being killed — I think Lincoln did what he had to in Maryland, particularly in Baltimore.

[Dan Schiavetta]

Good point

[Brett Bellmore]

Maybe both, but a despot who does what he thinks is necessary is still a despot. And the worst part is that some people even today want to use the precedents Lincoln established.

Going to war with the Confederacy on the basis that the Constitution didn't permit secession, and then grossly violating the Constitution in the course of that war, is a bit inconsistent.

[Sarcastr0]

I'm not saying Lincoln did nothing unconstitutional, but the idea that the Constitution's strictures are the same in peace, as in insurrection/war, is flat wrong on a functional, practical, and even formal level.

Calling Lincoln a full-on despot is just ignoring what was going on.

some people even today want to use the precedents Lincoln established.
Are you talking about jailing judges or journalists?

[David Nieporent]

"All the laws but one."

[Sarcastr0]

Somehow this famous quote had escaped me until now - thanks, DMN!

“Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”
-A. Linocoln.

[Brett Bellmore]

Yes, that was his excuse for violating a hell of a lot more than one law, in order to keep a law against secession that was only inferred, not explicit.

I think William Pitt had it better: "Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves."

" the idea that the Constitution’s strictures are the same in peace, as in insurrection/war, is flat wrong on a functional, practical, and even formal level."

I fail to see how it is possibly wrong on a formal level, save that the Constitution does permit Congress to suspend the great writ when war or invasion renders it necessary. (Lincoln suspended it in areas where the courts were still in operation.) That is, so far as I know, the only formal permission the Constitution grants to behave differently during wartime.

[Sarcastr0]

Oh hey you found the formal area where you were wrong.

Of course allowing exceptions may allow too many exceptions. But also allowing no exceptions may render the whole exercise useless, since you have no union to preserve.

Your mania for formalism would be the death of the republic in any number of ways, this being one.

A strict adherence only to practicalities would be as bad, but is not in evidence in Lincoln's actions. You're excluding the middle.

[The Margrave of Azilia]

Lincoln strictly separated what would be acceptable during an existential threat to the nation (as he judged the war to be) and during other times. It took a few decades, but then some of Lincoln's admirers and would-be emulators began professing to see existential threats everywhere.

[Dilan Esper]

It's not accurate to call Lincoln a despot.

However, a lot like Woodrow Wilson and Franklin Roosevelt, he had a habit of using the war as an excuse to impose restrictions on basic civil liberties. And that wasn't a good quality and was, in fact, a matter of aggrandizing his personal power rather than fighting the war.

And what I would say about Lincoln is we would be better off if we made him a little less of a secular saint. Winning the Civil War and ending slavery were immense accomplishments. But that doesn't mean he wasn't a petty, selfish, and power-hungry man in other ways. He surely was. (He was a pretty big racist too.)

[Brett Bellmore]

Maybe somewhat hyperbolic, but only moderately so, as we ARE discussing somebody who had his political foes jailed, and opposition newspapers shuttered. That's pretty despotic.

[Sarcastr0]

Dilan - we need myths. That means saints, at least in the Western way of thinking.

Lincoln the man is not the same as Lincoln the myth, but both are things. See also: MLK, George Washington, etc. etc.

Brett - it almost looks like you're ignoring the civil war going on and just discarding any sense of perspective so you can be so brave as to call Lincoln a despot.

[Dilan Esper]

The problem with myths is when they get in the way of criticizing people for their screw-ups. I happen to think Lincoln's abject disrespect for civil liberties in wartime is the classic example of the powerful person thinking "L'etat, c'est moi". He thought that people who criticized HIM or rallied people to oppose HIS policies weren't exercising their human right to oppose government actions they found to be wrongheaded, but were traitors who dared to question the wisdom of the all powerful and all knowing Lincoln.

And we need to be able to say that, because this recurs in history. Wilson did the same thing and threw Eugene Debs and numerous other people who took the-- I might add, substantively correct!- position that it was none of the United States' business who won World War I, in prison for decades! And Roosevelt, of course, interned tens of thousands of patriotic Japanese Americans. People get drunk on their power in wartime. And it's important to see Lincoln in that light so that we understand the dangers. It's especially important to recognize that someone who was so right on the basic issues (as Lincoln was) could err so badly, so we can understand how dangerous an evil man like Wilson would be with the same powers.

[Sarcastr0]

I concur that Lincoln's legacy is tarnished. MLK and GW had their issues as well.

I do think we need to do a better job of teaching that people can be tarnished but also held up as part of our national saints - makes us less brittle as a society.
Like the WW2 veterans who in 2009 protested any mention of the suffering in Hiroshima. I get where they're coming from, but that's a problem in our culture we should not indulge.

As I said, I think there are 2 lincolns; doesn't mean there can't be more. I wouldn't mind some lessons of the temptation of wartime authority. More Cincinattus in our national fabric, as it was like 60 years ago.

[Brett Bellmore]

"Brett – it almost looks like you’re ignoring the civil war going on and just discarding any sense of perspective so you can be so brave as to call Lincoln a despot."

It's more like I don't think a civil war Lincoln himself started is any excuse for Lincoln to give into his dictatorial impulses. As I said, that the US was a roach motel was only inferred, and widely disputed. Lincoln violated clauses far more firmly established than that in his quest to drag the Confederacy back in.

[Dilan Esper]

a civil war Lincoln himself started

What in the living hell are you talking about.

Let's review. Lincoln ran on a platform of no slavery in the territories. Not even abolition (not that he wouldn't have had the right to try and get elected on a platform of abolition, but he didn't do so). The whites who ran the South (without, of course, asking any of their equals the Black slave population what they thought about the matter) decided to throw a tantrum because they were a bunch of losers who couldn't even keep their own party together let alone persuade the rest of the country as to their odious views. Rather than saying "you know what, we lost, but there are still a lot of legal protections for slavery and maybe we'll get 'em in 1864", instead, decided to commit treason. First, they announced their secessions from the union. That's right, lose a presidential election and we'd rather leave than abide by what our fellow citizens decide.

And then, they decided that they wanted to not only secede, but to steal the federal government's property. Therefore, they decided to fire on Fort Sumter, a minor base out in Charelston Harbor that had little importance, because they just couldn't stand the idea that the representatives of the duly elected government of the United States were occupying the US' own property. And even though those representatives never fired upon or threatened anything in the South.

And you have the unmitigated, racist gall to suggest that Lincoln started the war?

What absolute rubbish.

[Brett Bellmore]

In what world is investing a fort capable of blocking the harbor of another nation not an act of war? The soldiers sent to Ft Sumter, which had been previously vacant, were sent to start a war. For no other purpose.

I don't think that, for constitutional purposes, it matters one bit why the Confederate states wanted to secede. Not the tiniest bit.

For moral purposes, sure, it matters a lot. But not for legal purposes. If they had the right to secede, why they wanted to was irrelevant.

Just as, if the things Lincoln did were unconstitutional, for legal purposes it was irrelevant why he did them.

And, for moral purposes, remember, he did not do it to end slavery. He was quite adamant about that, and he was willing to permanently enshrine slavery to get them to return.

He did it to make the US a roach motel; States check in, but they can't check out. For no other reason. Abolishing slavery was a last ditch excuse to motivate the remaining states to pursue the war, nothing more.

I'm glad slavery got abolished, but I'm not willing to pretend Lincoln was a better man or President than he really was, or that the Confederate states didn't have a better legal argument for their right to secede than Lincoln had for many of his war measures.

[Dr. Ed 2]

"Are you talking about jailing judges or journalists?"

Throwing all the Democrats in the state legislature in jail strikes me as a good idea... 😉

[Mr. Bumble]

Baltimore was the site of an plan to assassinate Lincoln on his way to his first inauguration.
https://www.smithsonianmag.com/history/the-unsuccessful-plot-to-kill-abraham-lincoln-2013956/

[Dan Schiavetta]

He drove there.

https://www.youtube.com/watch?v=bcsIJqhGkB4

[Mr. Bumble]

A funny bit. Are there any comics like that today? I think Bob and Ray would have a field day with the material available today.

[Dan Schiavetta]

Their humor might be too subtle for today’s audience. With Bob and Ray there were no jokes, no punchlines. You just started laughing as Bob realizes he’s interviewing an idiot (or the other way around — check their “vegetable collector” skit).

[Dr. Ed 2]

Tactically, it was the ideal venue because (like Boston today) all trains terminated and you *had to* go through the city to get on another one. And the thing I didn't mention about the 6th Massachusetts is that they lost most of their equipment.

This is why I don't really have a problem with Lincoln imposing martial law in Baltimore -- and what he didn't do but could have would have been to lay a couple of miles of track straight through the city, destroying anything in his way. (There might have also been grade issues, I don't know.)

He didn't have the option of using helicopters to get from one side to the other, like we did in Iraq -- and hence he had to control the city.

[Brett Bellmore]

I don't think the Court could have had enough credit that Lincoln would have cared how it ruled, Scott or no Scott. He was in full dictator mode by that point, having political enemies imprisoned without normal legal process. Merryman was scarcely alone in that regard.

[Dr. Ed 2]

"Virginia v. West Virginia, 220 U.S. 1 (decided March 6, 1911): In 1861 West Virginia broke away from Virginia because it didn’t want to secede and also it wanted to abolish slavery; years later Virginia goes after West Virginia for its share of Virginia’s public debt (public proj)ects in those areas). No statute of limitations on suits between states, evidently; suit wasn’t brought until 1906"

I also thought that WV was about slavery but it wasn't -- slavery both existed there and remained legal until 1865. There weren't as many slaves and most of them worked in "mining" salt (creating a brine solution in a well and then boiling it down) but there definitely was slavery there. The issue was wanting to remain loyal to the union.

As to the debt issue, I'm surprised that the 4th clause of the 14th Amendment didn't preclude this suit.

[Brett Bellmore]

It didn't preclude the suit because the debts in question were not " incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave", which were the only sort of debt invalidated by the 14th amendment.

[Dr. Ed 2]

I would have argued that as money is fungible, that these debts preceded the war, and as VA had significant debts from the insurrection, these debts were just money shifted from those debts.

Maybe that is why they waited until 1906 to file the suit.

[Brett Bellmore]

You might have argued that, but the 14th amendment is textually quite clear, and the debts in question were assumed prior to the war.

As to why they waited until 1906, apparently they'd refinanced the debt after the Civil war, with payment contingent on resolving this very issue. Took longer than anybody expected, I guess.

[Dan Schiavetta]

thanks!

[Bob from Ohio]

Scott was Marbury's first and bitterest fruit. Then Civil Rights Cases and then Plessy gave it a run for its money.

Judicial review is a legacy of racism.

[SRG]

Judicial review is a legacy of racism.

If you're attempting to argue that judicial review is hence iniquitous, you need more than that. And note that the court in Plessy declined to overturn an evidently racist law, which had the same effect as no judicial review. I suspect there is no shortage of cases from Marbury to the 1960s where racist laws - segregation, miscegenation, etc. - were not struck down as courts declined to review them.

[Dan Schiavetta]

My guess (I haven’t looked this up) is that when the state operates a business (here, the university “business”) different rules apply.

[Brett Bellmore]

A more detailed account.