The House of Representatives passed legislation last week ordering the Capitol’s bust of Roger Taney, the Supreme Court Chief Justice who wrote the Dred Scott decision, to Hell, or someplace. It will be replaced by a new bust of Thurgood Marshall, the first black judge to serve on Court.
Of course it will. This naked political grandstanding wouldn’t be complete without installing a black judge’s image as a rebuke to the evil white judge. The legislation now heads to President Biden’s desk to be signed, probably followed by a victory jig.
The pandering legislation says that Taney’s bust is “unsuitable for the honor of display to the many visitors to the Capitol.” It currently sits at the entrance of the Old Supreme Court Chamber in the Capitol where the Supreme Court met from 1810 to 1860. Taney led the court from 1836 to 1864.
“While the removal of Chief Justice Roger Brooke Taney’s bust from the Capitol does not relieve the Congress of the historical wrongs it committed to protect the institution of slavery, it expresses Congress’s recognition of one of the most notorious wrongs to have ever taken place in one of its rooms, that of Chief Justice Roger Brooke Taney’s Dred Scott v. Sandford decision,” the legislation says. I wonder how many of the members who voted for the legislation know anything about Taney or have ever engaged in an objective reading of his opinion. My guess: not many. Maybe none.
There is no upside in defending Taney or Dred Scott, because facts don’t matter in the realm of race and slavery, but hey, I’m a reckless fool on a mission, so what the hell. Taney was a lifetime public servant, holding office as a Maryland Senator, Attorney General of Maryland, US Attorney General, Secretary of War and Secretary of the Treasury, all under President Jackson, until Jackson successfully nominated him to succeed U.S. Supreme Court Chief Justice John Marshall.
Taney was an important and transformative Chief Justice, continuing Marshall’s efforts to define the role of the Court and its traditions. In accordance with the Jacksonian principle that the state and national government should share powers, Taney guided the Supreme Court to deciding which powers were shared and which powers were specifically assigned to the national or the state governments. Taney started the practice of assigning opinions to associate justices. My personal favorite Taney innovation was deciding that justices should begin wearing ordinary pants under their judicial robes.
Taney presided over many important decisions. In Charles River Bridge v. Warren Bridge,for example, his Court ruled that private property implied a social responsibility, and contracts made by the legislature should be construed in the public interest. I recognize, however, that any effort to rehabilitate Taney by his non-Dred Scot decisions are the equivalent of “Other than that, Mrs. Lincoln, how was the play?” Dred Scott v. Sanford, written by Taney, held that the federal government had no right to limit slavery, because slaves were property. There was a strong Constitutional argument that this was the case; it is why the 13th and 14th Amendments were needed.
Taney himself did not approve of slavery: he had freed his own slaves. Taney also believed that a strong Constitution-based decision favoring the property rights of slave-holders would prevent the looming prospect of a civil war, and that a decision in favor of escaped slave Scott would virtually guarantee one. “Taney’s ruling denied Black Americans citizenship, upheld slavery, and contributed, frankly, to the outbreak of the Civil War,” Rep. Steny Hoyer, D-Md., said on the U.S. House floor in support of Taney’s dishonoring. He really thinks that without Dred Scott, there would have been no Civil War? Talk about 20-20 hindsight. Frankly, given a choice, I’d trust Taney’s analysis of the opinion’s likely effects over a lifetime politico like Hoyer’s, who never practiced law. Hoyer has the advantage today of knowing what happened after Dred Scott, and like most lazy thinkers, is drawn to the flawed logic of post hoc ergo propter hoc.
Hoyer kept talking, unfortunately. “In removing Taney’s bust, I’m not asking that we would hold Taney’s to today’s moral standards,” Hoyer said. “On the contrary, let us hold him who the standard of his contemporaries, Harriet Tubman, Frederick Douglass, Abraham Lincoln … and all of those who understood that the enslavement of others has always been an immoral act.” Those were the standards of three contemporaries; the majority of his contemporaries, like Taney influenced by their time and culture, were not so certain about slavery’s status. Lincoln, contrary to Hoyer’s bad history lesson, opposed slavery but also agreed that it had legal standing, which was the underlying justification for Taney’s opinion in Dred Scott.
I’m so sick of writing this…but denigrating major figures in American history for holding the predominant beliefs and values of their times cannot be justified ethically or logically. The action of Congress in ‘canceling’ Roger Taney is particularly unfair because Taney was doing his job: following the law and the Constitution as it was, not as he wished it to be. Ironically, his virtuous replacement as an honored bust, Thurgood Marshall, was part of the 7-2 majority in Roe v. Wade, which did twist the Constitution into a shape its founders would not have recognized to satisfy the passions of the times.
Which decision was more “immoral,” the one that upheld precedent declaring that black Americans were not to have the rights of citizens while the government could not take away individual property without due process, or the decision holding that a woman had a right to take the life of her innocent unborn child?
It’s a close call. But the majority of those who voted to disgrace Taney have no problem with the latter.