But Scott had supporters in Missouri who saw the potential in his case for a freedom suit. Such suits were not uncommon during the 19th century, especially in the territories. They demonstrate the ambiguous and conflicted nature of enslaved people’s legal status in these volatile years of westward expansion. Scott’s case was first brought in the Circuit Court of St. Louis in 1846, where he prevailed, only to have the decision overturned by the Missouri Supreme Court by a 2-to-1 vote. The Missouri state justice William Scott, a pro-slavery Democrat, feared that to free the Scott family would risk disunion and, echoing John C. Calhoun, cause “the overthrow and destruction of our government.” From there the case made its way through a series of appeals. A Federal District Court concurred with the state’s decision. Scott’s supporters enlisted, pro bono, the famous free-soil politician and lawyer Montgomery Blair to take his case, and under Blair’s legal leadership, Scott appealed to the U.S. Supreme Court, where it reached the docket in late 1854.
The court faced three major questions. One, jurisdiction: As a Black man, was Dred Scott a citizen, with the right to sue in a federal court? Two, the validity of the “free soil” concept: Were Scott or his wife and their children entitled to freedom based on their residence for several years in a free state and a free territory? And three, the Missouri Compromise line: Would the court rule once and for all on whether Congress, and therefore the federal government, had the power to restrict the presence of slavery anywhere in the jurisdiction of the United States?
In one way or another, all of these issues were at the center of the 1856 election, and its bitter partisanship hung over the justices and their deliberations like a poisoned cloak. As is the case today with our conservative-majority court, the Taney court was decidedly partisan. Of the nine justices, seven were appointed to the bench by Southern pro-slavery presidents. Five of those seven were from slave states and slaveholding families. Of the four Northerners on the court, Robert C. Grier of Pennsylvania, an old Jacksonian Democrat, was appointed by President James K. Polk, perhaps the most pro-slavery chief executive of the entire antebellum era, and Samuel Nelson of New York was appointed by President John Tyler, a Virginian. They each joined the Southern majority in the Dred Scott decision. The two other Northerners, John McLean of Ohio and Benjamin R. Curtis of Massachusetts, would be the dissenters in the case.
Ahead of the inauguration, Justice John Catron and Justice Grier corresponded directly with the president-elect about the case. Buchanan wrote back urging them to push for a decisive declaration on Congress’s power to control slavery in the territories, knowing full well that the justices were aware he sought a pro-slavery outcome. Grier consulted about Buchanan’s letter with Justice James Wayne of Georgia and the chief justice himself, in what one historian has called a highly irregular “game of judicial politics” and a “breathtaking example of judicial activism.” Buchanan was given advance notice of the decision so that he could, if he so chose, refer to it in his Inaugural Address in the first week of March. In no uncertain terms, by the time Taney sat down to write the majority opinion, the fix was in for a broad decision that would try to settle, in thoroughly pro-slavery terms, the constitutional question forever.
It was the finality of the decision that made it so pivotal in leading the country to open conflict. To radical abolitionists, and certainly to many Republicans, the most offensive part of the decision was that it closed off the possibility of liberty or citizenship for free Black people. To the political antislavery coalition, growing in the North, the case’s inflammatory result was that it explicitly opened all of the Western territories, potentially as well as Northern states, to the legality of slave ownership. Dred Scott v. Sandford declared an eternal pro-slavery future in America.
Resistance began with the two dissents. In Justice Curtis’s opinion, he reminded the chief justice and posterity that when the Constitution was adopted in 1787, free Black men had been able to vote for delegates for the ratification conventions in five states. He also pointed out that there was no racial qualification for citizenship anywhere in the Constitution, thus declaring Taney’s originalism bad history and false law. Curtis further contended, with a long history to back it up, that slavery could exist only where “positive law” expressly sanctioned it. Otherwise, how could so many Northern states have abolished it? And as to the claim that the Constitution had been written “exclusively by and for the white race,” Curtis labeled this a mere “assumption,” contradicted by the Preamble, which calls for a “more perfect union,” and the Declaration of Independence’s promise of natural rights. This opinion was printed and published almost immediately in pamphlet form, a highly unusual act. Curtis had taken Taney’s uninformed originalism and thrown it in his face.
Opposition to the decision quickly became a marker by which Republicans would define their careers. At the annual convention of the American Antislavery Society in May 1857, Frederick Douglass, now very much a political abolitionist devoted to fighting slavery through law and political action, said the Slave Power was “poisoning, corrupting and perverting the institutions of the country.” Douglass warned that the conspiracy threatened everyone. “The white man’s liberty has been marked out for the same grave with the black man’s,” he said. The “ballot box is desecrated, God’s law set at naught.” He believed that the only way to stop the Slave Power was direct confrontation, the “overthrow” of slavery, “sooner or later, by fair means or foul means … in peace or in blood.” As the historian Elizabeth Varon has written, the Dred Scott case and the extended reactions to it gave the Slave Power concept a new stark reality and a “terrifying boundlessness.”
