A return to Dred Scott? How recent Supreme Court jurisprudence reflects Dred Scott's legal reasoning and fails to protect the most vulnerable in today's society.

• Author: Howard, Cory H.

1. INTRODUCTION II. THE DRED SCOTT DECISION'S PRINCIPLES: JUDICIAL FORESHADOWING? III. JUDICIAL TREATMENT OF HUMAN CAPITAL IV. SECOND CLASS CITIZENS?: RECENT JURISPRUDENCE SHOWS ADHERENCE TO HISTORICAL HIERARCHY REGARDING WOMEN V. WEAKENING PROTECTIONS FOR MINORITIES VI. CONCLUSION ABSTRACT

   The Dred Scott decision has been universally derided by public opinion, legal scholars, and subsequent Supreme Court decisions. Given the near universal denunciation of the Taney Court's decision, it would be a safe assumption that subsequent Courts would be wary of adopting the legal principles and rationales applied by the Taney Court in its infamous decision. However, this article argues that the Roberts Court has done just that: adopted the same legal reasoning used in the Dred Scott decision in a rash of recent decisions. Therefore, this article will attempt to tease out three principles enunciated by the Taney Court's decision and will analyze several recent decisions of the Roberts Court to show how each one contains present manifestations of the rationales employed by the Dred Scott Court and, just as the decision over 150 years before, fails to uphold general conceptions of justice by failing to protect the most vulnerable of our society.

1. INTRODUCTION

   In 1857, the United States Supreme Court handed down one, if not the, most controversial and repudiated decisions it has ever issued. (1) Written by Chief Justice Roger B. Taney, the majority opinion in Scott v. Sandford (2), known as the Dred Scott decision, believed it had decisively settled the issue of slavery in the United States, as part of a misguided attempt to unify what was already a nation tom apart by the issue. (3) Taney's opinion, in which the Court held that African-Americans were property and not citizens endowed with rights and privileges, relied on three distinct legal rationales: (1) deference to the states to define and control their body politic, (2) preservation of economic substantive due process rights for capital holders, and (3) deliberate or misguided ignorance of social, political, and economic constructs and reliance on historical institutions to justify continued oppression. Given the wide repudiation in courts, via public opinion, and in legal scholarship, that followed in the decades after the decision, a safe conclusion would be that the Supreme Court would never again fall prey to any of the three central tenants of the Dred Scott decision, or at least not rely on them to arrive at decisions carrying disastrous public policy results. However, it is the assertion of this article that recent Supreme Court jurisprudence has seen just that; the Court's use of these three legal rationales to arrive at holdings that carry negative public policy implications that significantly disadvantage the most vulnerable of our society.

   The Court's decision in Scott v. Sandford remains unpalatable to so many for a number of reasons, not the least of which was that it sanctified one of the most grotesque institutions ever implemented in the United States. However, the bitter taste the Taney Court's decision left may also be because it upends one of the broader underpinnings of the American justice system: that the legal system ought to protect weaker parties from those in more powerful positions. (4) The law, as Professor Koops iterates, is dual-faced, that is, it must simultaneously establish and constrain power, normally through the provision of rights and protections for weak parties to prevent the strong from dominating them. (5) Dred Scott failed to carry out both responsibilities, as the Court, while creating power, failed to properly restrain it and left the weak, African-American slaves, at the mercy of the strong. Such a failure, therefore, offends even our most basic notions of justice and runs contrary to our understanding of the goals and responsibilities of the American justice system. However, it is the assertion of this article that such blatantly offensive rulings are not a thing of the past and the rationales employed by the Taney Court in Dred Scott can be seen in the most recent jurisprudence of the Roberts Court.

   The goal of this article is not to give an exhaustive legal analysis of recent controversial decisions, as the author is sure that a multitude of other law review articles will give an in-depth analysis of each one. Instead, this article will focus on teasing out the three legal justifications employed by the Taney majority opinion and determine whether the same flawed rationales can be seen in recent Supreme Court decisions. In order to accomplish this goal, Section II will explore the Dred Scott decision, identifying three legal arguments that support the Taney Court's decision. In Section III, this article will explore how recent Supreme Court treatment of human capital reflects a propensity to favor capital holders at the expense of more vulnerable laborers. Section IV will review recent Supreme Court cases that both adhere to and misunderstand present and past social, political, and economic constructs that lead to decisions that drastically fail to protect those most in need in our society. Section V will explore the issue of minority voting and explain how Shelby County v. Holder is a present manifestation of the Taney Court's deference to state authority to control its own body politic. Also imperative to the development of this article are explanations of the current conditions surrounding the plight of women and minorities, both generally in society, and in specific situations in which they are most vulnerable to discrimination. This is exceptionally important as Supreme Court jurisprudence is not, and cannot be, made in a vacuum, and couching these decisions in historical and societal contexts is the only way to draw attention to the literary foil that the Supreme Court has played vis-a-vis social development.

2. THE DRED SCOTT DECISION'S PRINCIPLES: JUDICIAL FORESHADOWING?

   1. Protection for the State's Definition of its Own Body Politic?

      The concept of the body politic has varied greatly, from age to age, between scholars in religion, law, and philosophy, and given the vast amount of literature, each speaking to a different element, there is no easily distilled, universally accepted definition that this article could adopt. While it could take a broad view of the concept, identifying all those whom are the target of government benefits as members of the body politic (6), such a definition is neither compatible with sovereignty issues, nor supported by the case law that will be later mentioned. Instead, this article will adopt a much more nebulous concept of body politic and rely on the analogy presented by the Enlightenment thinkers, such as Rousseau, who view the concept in its relation to the social contract. This concept, which survives today, envisions the body politic as the resulting mass of individuals, who possess sovereign power, that occurs when there is a reciprocal denunciation of individual rights for the formation of a congruous body in which the power to govern over the constituents is endowed. (7) Even today the term carries a negative connotation, implying a hierarchical order, one in which the individual, and by extension, individual freedom is subordinated for the good of the "whole". (8) This is no accident, as it is a present manifestation of a the image the storied Greek philosophers had created, where each member of the polis was required to properly execute their role in society in order for virtue to be upheld. (9) Indeed, the subservient role of the individual to the good of the body politic is viewed by legal scholars, proponents of civic republicanism in particular, as essential to the continued perseverance of self-governance, and thus, democracy. (10) It is important to recognize that while a powerful analogy, scholars have identified two major weaknesses, at least in Rousseauian and Hobbesian incarnations of the body politic. First is the threat that private interests pose to the delicate connection, and individual sacrifice, that must accompany the formation and continued operation of the body politic. (11) Second, and more importantly, the threat of continued power grabs by the State. (12) In her critique of the Rousseauian model of the body politic, Professor Tara Helfman reiterates Rousseau's warnings that the "body politic, born of man's social inequality, is susceptible to man's more bellicose impulses." (13)

      The concept of the body politic played an important role in the Dred Scott decision, or more specifically, pseudo-10th Amendment concerns for the state's ability to protect its body politic was a pivotal factor in the decision. Rendered in 1857, the decision was handed down on the precipice of conflict, when the debate over federalism was at a boiling point. It is only by centering the decision in this political climate that we can begin to understand, or at least, attempt to understand, the Court's decision. At the time, the issue of slavery had created deep schisms in the United States and the decision as to whether or not the practice should be extended to the newly acquired Western territories had been the flash point for conflict. (14) In fact, many at the time, including the justices themselves, had hoped the Court's decision would strengthen the federal government's power to regulate slavery, allowing it to quash the sectarian in-fighting that threatened to drag the nation to war. (15) Rather than resolving the sharp division that had arisen in the country, the Dred Scott decision may have more than nudged the country closer to armed conflict. (16)

      It is through this construct and remembering the brief description of the weighty philosophical concept called the body politic, that this article can explain the role of the body politic in the Dred Scott decision. When considering the issue as to whether or not an African-American could be considered a...