Today in Supreme Court History: September 30, 1857

9/30/1857: Justice Benjamin Robbins Curtis resigns from the Supreme Court after Dred Scott v. Sandford (1857).

Justice Benjamin Robbins Curtis

Comments

[Dan Schiavetta]

Lux v. Rodrigues, 561 U.S. 1306 (decided September 30, 2010): Roberts denies injunction requiring Virginia election officials to count Congressional candidate’s signatures; signatures had been held invalid because of statute requiring witness to signatures to be from same Congressional District as signers; statute would likely withstand scrutiny even in light of recent case law striking down various petition restrictions (Roberts was proven wrong; the 4th Circuit remanded to the District Court with instructions to evaluate State Interest implications, and the statute was struck down on First Amendment grounds, 842 F. Supp. 2d 895 (E.D. Va. 2012))

[Dr. Ed 2]

There are two schools of thought on Curtis — one is that the Mass SJC had ruled the opposite way and the other is that he made way more money practicing admiralty law in Boston.

Who knows — probably both — but the point that the left fails to acknowledge is that the Dred Scott decision wasn’t universally popular, and that in the end, one White man from the north died for every ten slaves freed.

So if we want to talk reparations, let’s also talk subrogation.

[Magister]

the left fails to acknowledge is that the Dred Scott decision wasn’t universally popular

Dr. Ed 2's imaginary leftists are more often incorrect than Dr. Ed 2 himself. Their creation would be an impressive feat of imagination for anyone familiar with the real world, but Dr. Ed 2 comments are never bound by reality.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Next time try attacking his message, not him. The lack of such attack makes him more believable, because if his errors were so blatantly obvious, it would take less effort to show them.

[Dan Schiavetta]

Magister was pointing out that Dr. Ed’s proposition, “the left believes Dred Scott was universally popular”, is not connected with reality.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Ooooh, one assertion against another, but couched as a personal attack. That's really persuasive.

[Drewski]

But Magister is right and Ed's a lunatic, so there's that. But if you're so stupid you form opinions based on the tone of random internet comments, then you go right ahead and wallow in that life.

[Michael P]

You guys sure love the ad hominem arguments, to the point that it looks like that's all you have.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And we know they know, but they think they can pretend to not know, like children hiding under a blanket to be invisible.

[Sarcastr0]

You're not seriously defending Ed, and his 'the left believes Dred Scott was universally popular'

But you will pull a 'we know they know' but of bullshittery. Who are they? How do you know?

Eh, point is you got to attack someone this weekend.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Someone else who can't read. I asked for facts instead of a personal attack, I got a second personal attack, on me instead of Ed. Now you do the same.

Get a grip. Argue the facts or shut up. Personal attacks only show you have no facts.

[Drewski]

I'm not making arguments, I'm insulting you and Ed. You aren't worth arguments.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yet you just made an argument.

[Dr. Ed 2]

My point is that Curtis resigned is not taught, nor is the fact that the decision was only 7-2. My point is that the decision is taught as the entire court agreeing with Taney where it clearly did not.

I don't quite know what to make of Curtis and freely admit that, but think his dissent needs to be mentioned.

[Magister]

It's not the left making laws restricting teaching about race in United States history. If Curtis's dissent is mentioned, Taney's opinion and rebuttal would have to be taught, and the teacher is likely to run afoul of those laws. No teacher who is not Dr. Ed 2 would fail to note that the Dred Scott decision was widely opposed outside of slave holding states; Curtis's dissent and resignation add little to that.

Would a teacher get in trouble by teaching that one white southerner died for every fifteen slaves they tried but failed to keep from freedom? Can the millions who died in slavery in America over the preceding years be mentioned?

[Dr. Ed 2]

A teacher *would* get into trouble for mentioning that there were Black slave *owners*, even if only in the context of the DC Compensated Emancipation Act of 1862 and the refusal to compensate said Black slave owner.

The reason why states are banning ALL teaching about race is because your side would scream "content neutrality" if there were an attempt to legislate a balanced curriculum. So hence the necessity of an outright ban.

[Magister]

The reason why Republicans are banning teaching about slavery and racism is that they depend on racists to get elected and are eager to flatter them. And of course always eager to blame the left with "see the awful things you made us do!" and crocodile tears.

Mandating a balanced curriculum that wasn't just another "separate but equal"-type steaming pile of excrement would get screaming from the right, not the left. The left is screaming more about the bans than they would about even a mandate for a fake balance because that would still allow them to teach the material; the bans are aimed at avoiding screaming from the right, not the left.

[Mr. Bumble]

"Can the millions who died in slavery in America over the preceding years be mentioned?"
Got a source for that claim?

[Magister]

Why can't you figure this out for yourself? How many of the 2 million slaves in 1830 do you think were still alive among the almost 4 million slaves at emancipation? How many slaves died between the beginning of slavery in what became the US and 1830? What were the life expectancy,infant mortality and child mortality for slaves in the 1800s? Can you really imagine that the almost 4 million slaves at emancipation were more than two thirds of the total number ever enslaved up to that time?

Oh, it's Bumble, with some stupid gotcha about how slaves elsewhere in the New World were worse off, or that slaves who were no longer useful were cast off by their owners to fend for themselves and thus were technically "free" when they died.

[CJColucci]

To whom is it not taught? The decision and the vote speak for themselves, so any teaching that involves reading the opinion covers it. In courses that do not go into any particular detail, say, any K-12 history class, it is universally taught that the decision was controversial -- otherwise it wouldn't be taught at all.
As for Curtis's resigning, that usually isn't taught, any more than, say, Bushrod Washington's or Morrison Waite's resigning, or any other ordinary personnel change would be.

[Rev. Arthur L. Kirkland]

The important point is that this strange lurch demonstrates (as occurs daily) that the Volokh Conspiracy is the place to go for the white grievance/racist angle -- for reasons that reflect poorly on movement conservatism, the Republican Party, the Federalist Society, and this white, male, bigot-hugging blog.

[Sarcastr0]

This is some dumbass blind contrarianism.

[David Nieporent]

Next time try attacking his message, not him.

¿Por qué no los dos?

[Syd Henderson]

Saying "the Left" believes something implies it's a monolith. Dred Scott is generally considered a major decision leading up to the Civil War, even by many leftists who bother thinking about it, so thinking it was universally popular doesn't make any sense.

[Dilan Esper]

How dumb. We did pay substantial benefits to every single non-dishonorably discharged civil war veteran from the Union Army, as well we should have, and honored many of them with burial in our national cemeteries.

Meanwhile the country broke the promise it made to the slaves. 40 acres and a mule? Repealed. The Freedman's Bureau? Underfunded. Reconstruction? Gutted.

I'm not saying you have to support reparations (there are obviously deep practical problems to be solved if we wanted to do it), but the notion that the descendants of slaves and the descendants of civil war veterans are similarly situated is BS.

[F.D. Wolf]

In 1836, Mary Slater of Louisiana traveled to Massachusetts to visit her father, Thomas Aves. Slater brought with her a six-year-old slave girl named Med whom Slater's husband had purchased in Louisiana two years earlier. During her visit, Slater fell ill and asked her father to take care of Med until she was well enough to return to Louisiana. Various abolitionist interests in Massachusetts filed a habeas petition in state court in behalf of Med. The attorney who represented the interests of the slaveholder Slaters was Benjamin Robbins Curtis. While it was well established under state law that a slave who accompanied his slaveholder whose move to the state was permanent was no longer a slave, the law regarding a temporary move was uncertain. The court ruled in favor of Med. Commonwealth v. Aves, 35 Mass. 193 (1836).

Curtis was also a strong supporter of the Fugitive Slave Act of 1850, a position that was largely responsible for his appointment to the Supreme Court by President Millard Fillmore in 1851. Of the appointment, in 1855, the New York Tribune wrote that Curtis was "a slave-catching Judge, appointed to office as a reward for his professional support given the Fugitive Slave bill."

Needless to say, his vigorous dissent in Dred Scott (1857) came as quite a (pleasant) surprise to his critics. So, what explains the seeming contradictions? I think Curtis had an attitude common at the time: he was personally opposed to slavery, but thought it was more important to preserve the Union by placating the South. He thought there was nothing more important than preventing a civil war, which the Dred Scott decision made all but inevitable.

[The Margrave of Azilia]

During the war, Curtis published a pamphlet criticizing Lincoln for suspending habeas corpus and freeing the slaves. Said it was illegal in both cases.

[F.D. Wolf]

Indeed. In 1857, in a speech in Springfield, Abraham Lincoln effusively praised Curtis and his Dred Scott dissent, saying there was no way he could possibly improve upon it. Curtis strongly supported Lincoln in his 1860 presidential bid, but by the end of 1862, he had turned on him completely, denouncing Lincoln as an "utterly incompetent" tyrant. Curtis would support Lincoln's Democratic challenger, Gen. George McClellan, in the 1864 presidential election.

[The Margrave of Azilia]

I’ve heard the argument that Curtis’ dissent was aimed at reviving his popularity in Massachusetts – which had been impaired by his zeal for catering to slavery.

But if that were the explanation, why did he antagonize Massachusettsians *again* with his anti-Lincoln pamphlet and endorsement of McClellan (who had no chance of winning Massachusetts)?

So I’m willing to go with the alternate explanation of Curtis’ dissent – that the Dred Scott majority was too much even for a doughface like him to stomach.

[F.D. Wolf]

I suspect your analysis is correct.

[Dr. Ed 2]

Massachusetts was not the absolute abolitionist stronghold many think it was. (Maine *was* -- but separated in 1820.)

Do not forget where the textile mills that lined all the Massachusetts rivers (particularly the Merrimack in Lowell) got the cotton that they wove into cloth and then cut/sewed into clothing. There were more than a few folk who liked things just the way that they had been...

And while Massachusetts never had draft riots, by 1864 the carnage of the war was starting to hurt. *Lincoln* thought McClellan would win, and while Lincoln carried Massachusetts 126,742 to 48,745, maybe Curtis' audience was elsewhere, e.g. New York, where Lincoln won 368,735 to 361,986 -- that's less than half a percent.