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Let us now conduct a brief review of the lecture that, as chance would have it, (Z) delivered yesterday. In 1846, an enslaved man named Dred Scott, along with his wife Harriet, filed a lawsuit demanding manumission. The argument was that while the duo had once lived in the slave state of Missouri, they had traveled with their owner to the non-slave states of Minnesota and Wisconsin. This being the case, their continued enslavement was illegal.
Of the first 12 presidents of the United States, nine were Southern slave owners. You know what kind of judges Southern slave owners tend to appoint? That's right, Southern slave owners. And so, by the 1850s, the Supreme Court was jam-packed with slave-owning justices, including the Maryland slave owner who served as Chief Justice, Roger Taney. Taney held that post for close to 30 years, and had his fellow justices largely wrapped around his finger.
When the Dred Scott case made it to the Supreme Court in 1856 (yep, it took 10 years), Taney sensed an opportunity to resolve the slavery question once and for all. By that time, the majority of Northerners wanted to see the institution limited to the states where it already existed, while the majority of Southerners wanted to see it spread, ideally as far and as wide as possible.
Taney, writing for the 7-2 majority, made two findings. The first was that the suit was fundamentally invalid, because Black men (and women) had no right to sue in an American court. The Chief Justice could have stopped there, but instead went on to also find that if the suit HAD been valid, Scott would still have lost, because the laws Congress had passed limiting slavery were invalid. In short, Taney said slavery was a state issue, and not a federal issue, and states and territories could do whatever they wanted when it came to legalization (sound vaguely familiar?). Problem solved!
Or maybe not. Southerners were, of course, thrilled by the work of their fellow Southerner. On the other hand, many Northerners were outraged, since the decision would not only have opened up all future territories to slavery, but would also have theoretically re-opened the issue in states where slavery had already been outlawed. So, Northerners said they would not honor the decision. That included a guy who had been out of politics for a decade, but who jumped right back in thanks to Taney (and other Southern shenanigans in 1856 and 1857), a fellow by the name of Abraham Lincoln. So, far from "resolving" the slavery issue, Taney's decision served only to pour fuel on the fire, while also condemning the Chief Justice to eternal shame as an incompetent, tone-deaf, partisan hack.
We bring this up because the current Chief Justice has botched a number of rulings very badly, such that we have written several times that he's at risk of displacing Taney as the worst chief justice in American history (see here for the most recent example). We recognize that the Supreme Court, by definition, deals with thorny issues, and that many people are going to disagree with whatever they say. Our sense of his reputation is not just about his rulings being disagreeable, it's about how badly he's handled them.
Consider, for example, the Dobbs ruling. Actually, truth be told, future generations of Americans are almost certainly going to look down upon the findings there, the way we do with Plessy or Korematsu, because they are out of the mainstream in our time, and figure to be even more so in 2040 or 2060 or 2080. But beyond that, there was the embarrassing pre-ruling leak of the decision, and then the post-ruling nonsense about how it's not the Court's job to think about the impact of their decisions in the real world.
To take another example, Roberts made a train wreck out of the Colorado kick-Trump-off-the-ballot case. The Court's finding there was defensible, but its actual opinion was not. We slammed it, lawyer-reader A.R. in Los Angeles, CA slammed it (see the link in the above paragraph), George Conway slammed it because the writing was near-incomprehensible and, beyond that, gave no clear sense of how officials might deal with future cases. Remember, a major part of the Supremes' job is to establish precedents. But you can't do that if... nobody can understand the reasoning behind your ruling.
And then there's the presidential immunity ruling. The Supremes took their sweet time figuring that one out, and then uncorked a ruling that had legal scholars, liberal and conservative, screaming. As readers know, Roberts gave presidents something near to a blank check to do damn near anything they want to do, legal or no, as long as their actions can be plausibly considered part of their "official duties." At that point, it seemed Roberts had bowed to his inner hard-right Republican, and had gone full MAGA.
As it turns out, though... maybe not. There was new reporting this weekend about Roberts' actual mindset. It would seem that he felt that the immunity case raised great constitutional issues that needed to be addressed. And he decided that he and his Court would craft a brilliant and incisive ruling that would resolve those issues for all time. Once again, sound familiar? Let's just say that nothing here has us questioning the parallel we drew to Taney. After the decision came down, and the response was so negative, Roberts was apparently stunned into silence, and retreated to... whatever (lavish) cave he lives in. In contrast to the normal summer schedule for Supremes, he didn't do any speeches or other appearances.
In short, Roberts is apparently living in a bubble, and has totally lost the pulse of what the rest of the world is actually thinking. Who knows what the impact will be of the particular awakening he underwent after the Louis XIV decision. At very least, particularly given his track record in 2020, he's back to being "not a sure thing for Trump" in any election-related lawsuits that reach the Supreme Court after the election. (Z)