Market Mad House

In individuals, insanity is rare; but in groups, parties, nations and epochs, it is the rule. Friedrich Nietzsche

Historical Insanity

How the Dred Scott Decision Explains Chief Justice John Roberts’ Behavior

A 153-year-old court case can explain some of U.S. Supreme Court Chief Justice John G. Roberts Jr.’s sometimes perplexing behavior.

Roberts has a reputation as a conservative. Yet Vice President Mike Pence (R-Indiana) said, “Chief Justice Roberts has been a disappointment to conservatives.” Pence made the remark in a 5 August 2020 Christian Broadcasting Network interview.

Roberts upset Pence by for siding with four liberal Justices in a decision striking down a Louisiana law that stripped abortion clinic doctors of hospital admitting privileges. Pence is also unhappy with Roberts’ 2012 decision to uphold Obamacare.

How a 153-Year-Old Court Case explains Roberts’ Rulings

I think Dred Scott v. Sanford; an 1857 Supreme Court ruling that overturned many restrictions on slavery explains Roberts’ behavior.

In Scott, the US Supreme Court gutted the Northwest Ordinance, the federal law that banned slavery in the Midwest and other territories. Instead, the Court ruled that slavery was a right protected by the Fifth Amendment to the US Constitution.

In addition, Chief Justice Roger Brooke Taney created new law with his Dred Scott opinion. In the opinion, Taney found that African Americans were ineligible for US citizenship because their ancestors were slaves. A proposition not supported by the Constitution.

Many historians think Dred Scott helped spark the US Civil War by enraging northerners. Republican politicians such as Abraham Lincoln (R-Illinois) and US Senator William R. Seward (R-New York) began accusing Taney of trying to expand slavery by rewriting the Constitution because of the case.*

Additionally, Taney became one of the most hated men in American history for his Dred Scott decision. In fact, Taney’s statue still generates controversy in his home state of Maryland.

Roberts’ View of Dred Scott

I think Roberts fears becoming another Taney by making controversial and politicized decisions.

Roberts fears that a decision overturning Obamacare or upholding abortion bans could be as unpopular today as Taney’s Dred Scott opinion was in 1857. Moreover, Roberts fears a backlash that could damage or discredit the courts, including the Supreme Court.

Notably, some progressive commentators have dusted off President Franklin D. Roosevelt’s (D-New York) 1937 court packing scheme. To explain, in 1937 FDR proposed adding extra justices to the Supreme Court to keep it from striking down New Deal legislation. Widespread opposition scuttled FDR’s court packing, but the proposal helped end the New Deal by splitting the Democratic Party.

Several progressive organizations are promoting a modern Supreme Court-packing scheme, The Volokh Conspiracy claims. Roberts believes politicized decisions of the kind Pence wants lead to radical reactions – such as court packing.

How Roberts Sees the Courts

I think Roberts fears a Dred Scott style reaction that will disrupt or destroy the courts. Roberts reveres the court system and believes impartial courts are necessary for America’s survival.

Moreover, Roberts has some firm views about the role of the courts that both progressives and conservatives will hate. For instance, when President George W. Bush (R-Texas) nominated him for Chief Justice, Roberts made this revealing statement: “Judges and Justices are servants of the law, not the other way around.”

Consequently, Roberts thinks activist justices; such as Taney, violate the spirit of the law and play with fire. Instead, Robert views a judge’s or justice’s role as similar to that of an umpire in baseball. To explain, the umpire enforces the rules of the game, but does not set or change those rules.

John Roberts’ Rules for Courts

Hence, I think Roberts follows three simple rules in his rulings. Those rules are:

1. Judges shall not make law.

2. Judges shall not set public policy.

3. Judges shall not do politics.

I believe Roberts follows these rules because he thinks the Constitution delegates the making of law, the setting public policy, and politics to the other two branches of government. IE, Roberts thinks it is the president and Congress’s job to determine public policy and Congress’s job to make law. In addition, Roberts views politics as a job for professional politicians in the White House and Congress.

I think the Dred Scott decision; which blew up the American political system in 1857, proves history is on Roberts’ side. Unfortunately, modern Americans will not see it that way. Instead, the historians of the future could remember Roberts as a great Chief Justice, whose wise counsel we ignored.

*See the Battle Cry of Freedom: The Civil War Era By James M. McPherson, Pages 176-180 for details of the Dred Scott case.

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