The competition for the most unhinged and least accurate criticisms of Dobbs and the rest of this month’s Supreme Court decisions has been fierce amongst progressive commentators, but Harold Meyerson of the American Prospect just might be the early leader in the clubhouse with a column entitled “Samuel Alito: The 21st-Century Roger Taney.” Taney, of course, is the Chief Justice appointed by Andrew Jackson. Taney is best known for his opinion in Dred Scott v. Sandford, and Meyerson would like to compare Dobbs with Dred Scott. He begins thus: “He was confident that his sweeping opinion, backed by a majority of his Supreme Court colleagues, would decide the nation’s most divisive issue once and for all, even though his position was so extreme it lacked the support of the American citizenry.”
Of course, quite unlike Dred Scott, Dobbs did no such thing. In fact, it did the exact opposite. Taney sought to impose a permanent settlement of two issues in a stroke. One was lawsuits in federal court by slaves or former slaves seeking a declaration of their freedom on various grounds: In Dred Scott’s case, the argument was that he had been taken to reside into a federal territory that did not recognize slavery, and was therefore a free man once his residence was more than transitory. Taney, after a flawed review of Founding-era history, concluded that a black man could never be a “citizen” of any state within the meaning of Article III, and therefore could never file suit in federal court (at least, not without invoking a basis for suit under federal law). The other issue was the power of Congress to ban slavery in the territories; Taney, invoking and effectively inventing the concept of “substantive due process,” held that Congress lacked the power to prevent a slaveholder from bringing his property wherever he wanted. The ruling purported to invalidate the Missouri Compromise of 1820. It was touted by the aging, Pennsylvania-born Democrat in the White House as a kind of super-precedent settling the question of slavery in the territories. It was also widely seen as a prelude to a constitutional decision forcing every state to allow slaves to be brought into their territory.
Dobbs, by contrast, does not seek to impose any sort of single or final solution of the abortion question on the nation. That was what Roe v. Wade tried to do, and it is what Planned Parenthood v. Casey explicitly argued it was trying to do, drawing a famous rebuke from Justice Antonin Scalia that included an extended and much more apposite parallel to Dred Scott:
There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “It is the dimension” of authority, they say, to “cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon to be played out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. . . . Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
Alito, in his majority opinion in Dobbs, concluded that Scalia was right, and the Court needed to stop trying to settle the issue:
As has become increasingly apparent in the intervening years, Casey did not achieve that goal. Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. . . . It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. . . . [In Roe], the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side.
Meyerson cannot even acknowledge that Alito left the issue to be decided in various ways by various states, capable of change over time — the very opposite of imposing a final, national settlement. Moreover, there is grisly irony in Meyerson claiming that Dobbs was like Dred Scott in that it “denied an entire class of Americans their most basic rights.” Meyerson’s column simply writes off the unborn as having no rights the law need respect — exactly Taney’s view of slaves.
In his second gambit, Meyerson tries to draw a parallel to Taney’s judicial overreach:
The issue before the Court in the Dred Scott case was whether Scott, an enslaved Black man then living in the slave state of Missouri, could petition the Court for his freedom, as he had lived for years in the free state of Illinois and the free territory of Wisconsin. Rather than simply ruling on Scott’s petition, Taney ruled that Scott had no standing to go to court at all, because Blacks, whether slave or free, were categorically not citizens of the United States and could never become citizens. In so doing, Taney also struck down the Missouri Compromise of 1820, which had divided the nation’s territories into free and slave.
First, Meyerson is wrong that Taney couldn’t rule on the citizenship issue. That was essential to whether the case belonged in federal court. Taney’s conclusion was wrong (more on that below), but it was a threshold issue in the case.
However, Taney’s opinion on the Missouri Compromise was actually an exercise of unauthorized judicial power. Having concluded that the lower court had no jurisdiction over Dred Scott’s lawsuit and thus no power to decide the issue of Dred Scott’s freedom, the Court necessarily lacked the power to do the same itself. Never mind, said Taney: “The fact that the result would be very nearly the same to the parties . . . would not justify this court in sanctioning an error in the judgment which is patent on the record, and which, if sanctioned, might be drawn into precedent, and lead to serious mischief and injustice in some future suit.” In other words, he was going to issue a ruling on the issue even without legal power to do so. The Court today would rightly recognize this as an advisory opinion it was not empowered to issue.
In Dobbs, by contrast, there was really no question that, in order to decide the case, the Court needed to decide whether or not the rule of Roe, as modified in Casey, applied. Under Casey, if the Mississippi law banning abortion after 15 weeks placed an “undue burden” on abortions after that point but before viability, it had to be struck down. This is why Judge James Ho, despite criticizing the outcome, agreed that the Fifth Circuit was required to strike down the law: A total ban is obviously an undue burden, and only by overturning the Casey standard could the Court do anything else. The parties to the case — and the solicitor general — all agreed: None of them offered the Court any choice besides either following Casey or overturning Roe. Even Chief Justice John Roberts, who wrote a concurring opinion arguing against going all the way to overturning Roe, acknowledged that his proposed middle ground required partially overturning Casey by rejecting its viability threshold.
For his third trick, Meyerson attempts a parallel between Taney’s and Alito’s views of originalism: “Just as Taney noted that the authors of the Declaration in 1776 couldn’t possibly have meant to include Blacks in their assertion of human equality, so Alito noted that the authors of the 14th Amendment in 1868 couldn’t possibly have been thinking of a woman’s right to choose.” Of course, the issue in Dred Scott was the Constitution, not the Declaration, although I will forgive Meyerson that error, because Taney made it as well. But the fundamental problem with Taney’s analysis, as the Dred Scott dissenters noted, was that he asked the wrong question, in two ways. One, Taney drew together a bunch of examples of racial discrimination in the Founding era to show that the Framers did not treat black Americans equally, and thus likely did not intend that the Constitution convey federal citizenship on every black American, slave or free. But then he made the leap from that point to conclude that even if a state treated a free black American as a citizen, Article III would bar them from ever being recognized as such. There was no evidence of this at all, and Taney cited none. He came up as empty as the Dobbs dissenters did in trying to prove that the 14th Amendment had been intended to grant a right to abortion.
In fact, Taney skipped over the essential state-based nature of citizenship before 1868. The original Constitution did not define citizenship at the national level at all, other than permitting Congress the power to provide a “uniform Rule of Naturalization” — i.e., a uniform standard for how foreigners could become citizens of a state, in particular, how long they would need to wait — and saying that a president had to be “a natural born Citizen,” a phrase it never defined but that was generally recognized simply to mean born within the United States. Otherwise, citizenship before the Civil War was essentially state citizenship. It was precisely to remedy this, and overrule Dred Scott, that the 14th Amendment provided a national definition of citizenship for the first time. But at the Founding, did any states permit black Americans to exercise the rights of citizens? Clearly, yes. Justice Benjamin Curtis’s dissent in Dred Scott argued that free black Americans had the right to vote in five states in 1787 and were therefore part of the citizenry — the “We the People” — that ratified the Constitution itself. A state, in 1857, remained unfortunately free to deny black citizenship, as every slave state necessarily did with regard to slaves, and as some did in excluding free black people from their territory, their electorates, or other basic rights. But under Taney’s view, a state could never confer citizenship on its black residents, even if they were permitted under state law to vote, hold public office, sit on juries, keep and bear arms, and exercise all the other rights of citizens. This was plainly nonsense, and recognized as such at the time.
Just like Meyerson’s column.