Can the Supreme Court be Salvaged?
Abraham Lincoln thought so, but that was a while ago
Welcome back to the This Day newsletter (catchier, right?). Each week, a member of our team gathers together bits of America’s past and attempts to find a throughline that might add a little understanding to our current moment.
Here’s what happened over the week ahead in American political history…
March 6
1836: Mexican forces capture the Alamo in San Antonio
1857: The Supreme Court rules in the Dred Scott v. Sandford case, upholding slavery in United States territories, denying the legality of Black citizenship in America, and declaring the Missouri Compromise to be unconstitutional
1948: New York City’s war on pinball is raging, with police smashing machines
March 7
1854: Vandals break into the construction site at the Washington Monument, make off with the “Pope’s Stone,” and throw it in the Potomac River
1869: President Andrew Johnson pardoned a man by the name of Samuel Arnold — who had been imprisoned for five years for plotting to assassinate Abraham Lincoln
1965: "Bloody Sunday" occurs in Selma, Alabama, as state troopers and sheriff's deputies attack civil rights marchers.
March 8
1782: 96 Native Americans in Gnadenhutten, Ohio, are killed by Pennsylvania militiamen
1892: Black grocery owner Thomas Moss and two of his workers, Will Stewart and Calvin McDowell, are lynched by a white mob while in police custody. The lynching became a front-page story in The New York Times on March 10, which countered the image of the "New South" that Memphis was trying to promote
1917: The Senate votes to limit filibusters by adopting the cloture rule
1985: “We are the world” is released featuring virtually every major American music star, to raise money and awareness about the famine in Ethiopia
March 9
1841: The Supreme Court rules in United States v. The Amistad that captive Africans had been taken into slavery illegally
1933: FDR submits the Emergency Banking Act to Congress, the first of his New Deal policies
1972: President Richard Nixon made a surprise visit to China, meeting with leaders and sending images back home that shocked Americans
March 10
1848: The Treaty of Guadalupe Hidalgo is ratified by the Senate, ending the Mexican–American War
1959: “A Raisin In The Sun” debuted on Broadway. It was the first Broadway show written by an African-American woman, and marked the arrival of Loraine Hansberry as a major creative force
1972: The National Black Political Convention convenes in Gary, Indiana.
1993: Dr. David Gunn is shot and killed at the Pensacola Women's Medical Services clinic, in Florida, by an anti-abortion protester
March 11
1861: The Confederate States of America ratifies its own constitution. It’s largely based on the United States constitution, but with some key changes
1918: The first cases of Spanish influenza are reported in the US
March 12
1939: A statue depicting young Abraham Lincoln—later named “Hot Lincoln” by online admirers—is unveiled at the new Federal Building in Los Angeles
2003: Elizabeth Smart is found after being kidnapped from her Salt Lake City home.
In which we take the above collection of events and find themes, throughlines, rabbit holes and more. This week it’s Nicole Hemmer’s turn at the typewriter.
These days, I think about the Supreme Court a lot, probably more than is technically healthy. In particular, I puzzle over the Court’s legitimacy: whether it’s a corrupted and reactionary but necessary institution that can be reformed, or whether it is unsalvageable. In other words, is it the Justices who are the problem, or is it the institution itself?
For much of its history, the Court has been an impediment to justice, contravening laws passed by states and occasionally Congress meant to make the country a fairer and more inclusive place, or upholding laws used to repress and immiserate the people. But at moments, the Court has been a necessary driver of expanded freedoms and greater justice, from school desegregation to rights for the accused to access to reproductive health care.
There are two decisions handed down this week in the 19th century that get at this tension in the Court’s role: U.S. v. Amistad (1841) and Dred Scott v. Sandford (1857), Both decisions arose from freedom suits that were decided by the Taney Court, a notoriously revanchist chief justice.
U.S. v. Amistad emerged when a group of kidnapped Africans, transported across the Atlantic on a Portuguese ship called La Amistad, rebelled and seized control of the ship. They attempted to steer it back toward Africa, but a deceptive guide led them instead to U.S waters, where authorities intercepted the ship and began a series of legal proceedings to determine the fate of the kidnapped-and-self-emancipated Africans.
At issue: The U.S. had banned the slave trade, including the importation of people to be sold into slavery. The case involved issues of treaty law—the Spanish and British were involved, arguing over competing treaties—and the case wound its way to the Supreme Court. Pressure on the Court was intense, as President Martin van Buren sided with Spain and secretly arranged to have the Africans handed over to be tried for murder as soon as possible. But his plans failed, and in 1841 the Court held that the Africans were free men, illegally detained, and should be freed to return to their homes. With the help of American abolitionists, 35 people made their way safely back to Sierra Leone. The Court had used its power to protect them from rivaling empires and a meddling President and had helped secure their liberty.
That same Court, 16 years later, handed down its most infamous decision in Dred Scott. Dred Scott and his family, all enslaved in Missouri, sued for their freedom after having been moved for a time into the free territories of Illinois and the Wisconsin Territory. After losing the case in the Missouri Supreme Court (which overturned three decades of precedent in ruling that the state was not bound to respect the laws of other states), Scott sued for his freedom in federal court, and the case arrived at the Supreme Court in 1856. There, the Court ruled against the Scotts in a 7-2 decision.
But the Court did not simply say that the Scotts could not sue for their freedom because they lived in a slave state. It went much further, declaring that the Scotts could not sue because they were Black, and no person of African descent had a right to freedom or citizenship in the United States. Then the Court went even further, ruling that Congress could not ban slavery or free enslaved people in U.S. territories.
The decision hastened the nation toward civil war, but it did not immediately delegitimize the Supreme Court for anti-slavery politicians. Abraham Lincoln, for instance, made an institutionalist claim, insisting he would respect the Court but continue to press for it to overturn its decision: [The Court’s] decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendment of the Constitution as provided in that instrument itself. More than this would be revolution.”
Frederick Douglass, on the other hand, saw in the decision evidence that the Court should no longer be heeded, and that higher values should reign. “The Supreme Court of the United States is not the only power in this world,” he said in an 1857 speech. “Judge Taney can do many things, but he cannot perform impossibilities. He cannot bale out the ocean, annihilate the firm old earth, or pluck the silvery star of liberty from our Northern sky….He cannot change the essential nature of things — making evil good, and good evil. Happily for the whole human family, their rights have been defined, declared, and decided in a court higher than the Supreme Court.”
The competing views of Lincoln and Douglass feel particularly familiar today, as Americans who recoil at the contemporary Court’s corruption and reactionary rulings seek to plot a path forward. A decade of progressives appealing to norms and institutions now exists with a competing camp that wonders if our institutions are part of the solution or part of the problem that needs solving. As much as I am sympathetic to the former—a well-functioning nation needs strong institutions—the long history of the Court has me worried that the latter is more accurate.
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