What Was Wrong with Dred Scott, What's Right about Brown

Abstract

No Supreme Court decision has been more consistently reviled than Dred Scott v. Sandford.' Other decisions have been attacked, even virulently, by both contemporary and later critics; other decisions have been overruled by constitutional amendment or by subsequent Court majorities. But of all the repudiated decisions, Dred Scott carries the deepest stigma. If a proper criterion for evaluating a judicial decision is its success in achieving peaceable resolution of a social dispute, Dred Scott was a palpable failure; indeed, its critics then and now have plausibly claimed that the decision played a significant role in precipitating the Civil War. If a proper criterion is its consistency with high ethical values, Dred Scott fails even more clearly. Chief Justice Taney's opinion for the Court recited the most explicit racist dogma that appears anywhere, before or since his opinion, in the pages of the United States Reports. In explaining why no black person, whether slave or free, could ever become a citizen of the United States, Taney relied on blacks' historic status "as beings of an inferior order... altogether unfit to associate with the white race... ; and so far inferior, that they had no rights which the white man was bound to respect."