Judicial review and the infamous Dred Scott case

Written by William C. Duncan

November 19, 2021

This week the Supreme Court set its January argument calendar: the schedule of oral arguments it will hear in January. Some of those cases are likely to invoke the court’s power to consider the constitutionality of federal, state and local laws, such as Shurtleff v. Boston, a religious freedom case that Sutherland has previously written about. That power, known as judicial review, dates back to one of the earliest Supreme Court chief justices: John Marshall.

Marshall served as chief justice of the Supreme Court for 34 years, from 1801 to 1835. He was not the first chief justice, but he was likely the most impactful. He established the practice of striking down federal and state laws that conflicted with the Constitution, though he used it sparingly.

Marshall was replaced by Roger Taney, a loyalist of President Andrew Jackson. When all but one member of Jackson’s cabinet resigned in the wake of a social dispute (the Petticoat Affair), Taney was appointed the new attorney general. In that role, he helped the president carry out his battle with the Second Bank of the United States. In fact, when the secretary of the treasury refused to withdraw federal funds from the bank, Taney was appointed acting secretary so he could carry out Jackson’s wishes.

As a result, the Senate refused to confirm Taney’s later nominations as secretary of the treasury and then as an associate justice of the Supreme Court. In 1836, however, after the death of Marshall, the makeup of the Senate had changed, and Jackson’s nomination of Taney as chief justice was confirmed.

To the degree Taney is remembered, it is for the infamous decision in Dred Scott v. Sandford. A school resource from the Public Broadcasting System summarizes the background of the case:

Born around 1800, Scott migrated westward with his master, Peter Blow. They travelled from Scott’s home state of Virginia to Alabama and then, in 1830, to St. Louis, Missouri. Two years later Peter Blow died; Scott was subsequently bought by army surgeon Dr. John Emerson, who later took Scott to the free state of Illinois. In the spring of 1836, after a stay of two and a half years, Emerson moved to a fort in the Wisconsin Territory, taking Scott along. While there, Scott met and married Harriet Robinson, a slave owned by a local justice of the peace. Ownership of Harriet was transferred to Emerson.


Scott’s extended stay in Illinois, a free state, gave him the legal standing to make a claim for freedom, as did his extended stay in Wisconsin, where slavery was also prohibited. But Scott never made the claim while living in the free lands – perhaps because he was unaware of his rights at the time, or perhaps because he was content with his master. After two years, the army transferred Emerson to the south: first to St Louis, then to Louisiana. A little over a year later, a recently-married Emerson summoned his slave couple. Instead of staying in the free territory of Wisconsin, or going to the free state of Illinois, the two travelled over a thousand miles, apparently unaccompanied, down the Mississippi River to meet their master. Only after Emerson’s death in 1843, after Emerson’s widow hired Scott out to an army captain, did Scott seek freedom for himself and his wife. First he offered to buy his freedom from Mrs. Emerson – then living in St. Louis – for $300. The offer was refused. Scott then sought freedom through the courts.

The legal battle took a decade to resolve. Though Scott prevailed in his claim that he and his wife were free at the trial court level in Missouri, the state supreme court and a federal circuit court ruled against him. So he petitioned the U.S. Supreme Court.

The court’s opinion went far beyond the question of Scott’s freedom. Instead, Chief Justice Taney’s majority opinion first determined that the court lacked jurisdiction to hear the case on the shocking theory that “a negro whose ancestors were imported into this country and sold as slaves” could not “become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen.” This, the majority held, was true whether that individual was a slave or had been freed.

Despite its conclusion that the court lacked jurisdiction to hear the case, the majority went on to argue that Congress did not have authority to prohibit slavery in U.S. territories. This meant the Missouri Compromise of 1820, which had admitted Maine as a free state and Missouri as a slave state while also prohibiting slavery in a portion of U.S. territories, was unconstitutional. In one decision, the court managed to undo decades of compromises meant to balance the power of the slave and free states and to check the expansion of slavery.

Two justices dissented, noting the impropriety of the majority’s broad ruling after it had decided it lacked jurisdiction on the case. Justice Benjamin Robbins Curtis also noted that freed slaves and other Black Americans could vote in a number of states and so were clearly citizens.

The Dred Scott opinion was the second time the court had struck down a federal statute, and it illustrated the dangers associated with that power. While most would agree that the court should exercise the power to strike down legislation that conflicts with specific constitutional provisions, the Dred Scott case illustrated something different – an imposition of the justices’ policy judgments on the text of the Constitution. As a result, Dred Scott stands as an illustration to what would later be called “judicial activism.”

As a recent post here noted, the decision contributed to the roiling regional dispute over slavery that would precipitate the Civil War.

A postscript on the case is that the sons of Scott’s original master, Peter Blow, financed the case, and after the Supreme Court decision they paid for Scott and his wife to be freed.

Taney would serve for 28 years as chief justice. In 1857, he wrote a letter expressing his opinion that his decision in Dred Scott would “stand the test of time and the sober judgment of the country.” Instead, his reputation was ruined, and he serves only as a cautionary example to others of the need for judges to reasonably limit their use of the power of judicial review.

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