Judges Take On Dred Scott Case

Breyer, appeals court judges reconsider most infamous legal decision

Unnamed photo
Susan E Dewolf

Supreme Court Justice Stephen G. Breyer presides over a moot court argument reconsidering the infamous 1857 case Dred Scott v. Sandford at Harvard Law School's Ames Courtroom Saturday.

Supreme Court Justice Stephen G. Breyer and nine U.S. appeals court judges presided over a reconsideration of Dred Scott v. Sandford at Harvard Law School Saturday, determining that Scott would likely have had to remain a slave under 1850s law, but that the most significant parts of the Court’s opinion were completely erroneous.

The 1857 case considered a claim by Scott—a Missouri slave who lived in the free state of Illinois with his owner—that should be free because of the time they had spent in Illinois.

In an infamous decision, the Supreme Court ruled against Scott, and Chief Justice Roger B. Taney issued a vitriolic opinion asserting that blacks were “unfit to associate with the white race” and “had no rights which the white man was bound to respect.” The decision is often blamed for inflaming the political divide over slavery and contributing to the start of the Civil War.

At the re-hearing yesterday, held on the 150th anniversary of the Court’s opinion, the 10 judges heard from lawyers and academics from across the country representing both Scott and his owner. The legal arguments centered on both whether Scott could be considered a citizen—which would determine whether he had the right to bring a suit—and whether Taney’s opinion was necessary.

After questioning the lawyers and experts, most of the judges concluded that the Court should have dismissed the case because Scott was not a citizen and that by not doing so, Taney’s opinion was judicially irresponsible.

The re-hearing, held before a packed Ames Courtroom, was organized by Climenko Professor of Law Charles J. Ogletree Jr. and his Hamilton Houston Institute for Race and Justice.


On the pivotal issue whether Scott had the right to bring his case in federal court, the lawyers for both Scott and his owner, surprisingly, said that he did not. For the Supreme Court to hear his case, Scott needed to show what is called “diversity of citizenship”—that he and his owner were citizens of different states. But Paul Finkelman, a professor at Albany Law School and an expert witness for Scott’s owner, argued that under Missouri state law, Scott could not be considered a citizen at all.

“Citizenship is a state matter, and Missouri has a right to determine who its own citizens are,” Finkelman said, speaking from an 1857 perspective. “No black can ever be a citizen of Missouri.”

As a result, he added, the Court did not have jurisdiction to hear the case.

But instead of arguing with Finkelman’s contention that Scott was not a citizen, Yale Law School professor Akhil R. Amar, one of Scott’s lawyers, conceded that point while directing his fire at the more outrageous claims made in Taney’s opinion.

When some judges pointed out that they could not decide the case in Scott’s favor if they lacked jurisdiction, Amar responded that the case is remembered for the sweeping propositions made by Taney, not the actual effect of depriving one man of his freedom.

“It might be true that Dred Scott would lose the case on jurisdictional grounds,” Amar said, “but not on the ridiculous notion that blacks can never be citizens, or, with respect, the ridiculous idea that Congress could not prohibit slavery in federal territories, or, with respect, the ridiculous idea that freeing slaves violates [property rights].”

Former Solicitor General Kenneth W. Starr, Amar’s co-counsel, made their strategy even clearer a few minutes later.

When Judge Harry T. Edwards, who serves on the D.C. Circuit, asked Starr, “Are you saying by losing you win?” the former special prosecutor responded, “Thank you! I wish I had said that earlier.”


The judges agreed that the easiest thing for the 1857 court to have done would have been to determine that Scott was not a citizen, dismiss the case, and allow the ruling of the Missouri Supreme Court to stand.

“They should have written a narrow, restrained opinion indicating that they had no jurisdiction,” said Judge Carlos F. Lucero, who serves on the Denver-based Tenth Circuit. “In today’s parlance, they were cruisin’ for a bruisin’, and they got it.”

Judge Ann Claire Williams, who serves on the Chicago-based Seventh Circuit, said that the court’s opinion was inevitable given the political climate of the day and Taney’s position as chief justice. Taney himself was a southerner and a slave owner.

Breyer provided more speculation as to why Taney wrote such a broad, extreme opinion when a more modest one would have been legally stronger.

According to Breyer, one potential explanation is that Taney might have tried to cut a deal with Justice Benjamin R. Curtis, a staunch abolitionist, to dismiss the case, but that Curtis’ might have rejected the deal, prompting Taney to take a hard-line position.

“Taney could have responded, ‘Fine, you write what you want, and I’ll write what I want.’” Breyer said. “And then the country’s down the drain.”

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.