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Contracts, Credit, and Commerce
Slavery and the States
Confusion and Change
Confidence and Clarity
Scott v. Sandford

When Congress convened in late 1835, President Jackson sent the Senate a second Taney nomination, this time for chief justice. To fill the other vacant seat, Jackson chose Virginian Philip Pendleton Barbour, who had argued the state′s case in Cohens v. Virginia, in which the Court reaffirmed its power to review state court rulings denying federal claims. Barbour had served several terms in the House, during which he had advocated requiring five of seven justices to concur in holding a statute unconstitutional. He also had served as a state and a federal judge.

Roger B. Taney (Source: Library of Congress.)

The same political opposition that delayed action on Taney′s first nomination to the Court delayed his confirmation as chief justice until March 15, 1836. Leading the opposition were two of the foremost Supreme Court advocates of the era, Daniel Webster and Henry Clay. Nevertheless, the Senate confirmed Taney′s nomination, 29–15. While the Senate considered the nomination, the Court met without a chief justice for its 1836 term. Story, the senior sitting justice, presided.

Contracts, Credit, and Commerce

During Taney′s first term, the 1837 term, the Court decided the three constitutional cases pending during the last years of the Marshall era: Charles River Bridge v. Warren Bridge, New York v. Miln, and Briscoe v. Bank of the Commonwealth of Kentucky. All three were decided in favor of the states, and many observers saw the rulings as evidence that the Taney Court would generally favor the states′ rights, which had been consistently curtailed by the Court under Marshall. Carl B. Swisher assesses the work of the Court differently:

The work of the 1837 term … marked the beginning of a new order. The transition was not a sharp one, and those who saw it as such were mistaken. In spite of the radical doctrines sponsored by some Jacksonians of the time, the Court was careful to adhere to traditional patterns… . The change was limited … and yet it was there. There was a greater tendency to look to items of local welfare and to emphasize the rights of the states, a greater concern with living democracy in a rapidly changing society. [80]

Joseph Story (Source: Library of Congress.)

The first and most famous of these decisions is Charles River Bridge, first argued before the Court in 1831. At issue was the constitutional ban on state action impairing the obligation of contracts. Charles River Bridge Company, chartered by Massachusetts to build a bridge for pedestrian traffic across the Charles River, challenged a subsequent state decision allowing the building of a second bridge. During five days of argument in January 1837, Daniel Webster argued for the original company that implicit in its charter was the exclusive privilege to carry such traffic. The Court announced its opinion in February, with Chief Justice Taney writing the decision. Although the Court did not undercut its earlier rulings protecting contracts, it ruled against Charles River Bridge Company. A charter, Taney explained, would not be construed to be more favorable to its corporate recipient, at public expense, than it explicitly required. In the absence of an explicit grant of monopoly privilege, the state had not infringed the first charter by granting a second to another company. [81]

The Court in 1851. Seated from left: Justices John Catron, Philip Barbour, Chief Justice Roger B. Taney, Justices Peter V. Daniel, Samuel Nelson. Standing from left: Justices Robert Grier, Benjamin Curtis, Levi Woodbury, John McKinley. (Source: Collection of the Supreme Court of the United States.)

A few days later, in Miln, the Court held that a state could require shipowners to report all passengers on ships arriving in its ports. This reporting requirement had been challenged as an infringement of the federal power to regulate foreign commerce, but the Court held the requirement a legitimate exercise of the state police power. [82] The term′s third major ruling, in Briscoe,was, like Miln, first argued during the 1834 term. Here, the Court upheld a state law that authorized a state-chartered bank to issue bank notes. Henry Clay had argued for the bank. This law, like that struck down seven years earlier in Craig v. Missouri, had been challenged as infringing the constitutional ban on state bills of credit, but where the Marshall Court had struck down the law in Craig, the Taney Court upheld it in Briscoe. Justice Story dissented, as he had in Miln and Charles River Bridge, stating that Chief Justice Marshall would have disagreed as well. [83]

On the last day of President Jackson′s administration, Congress expanded the Court from seven to nine seats. Jackson immediately nominated John Catron of Tennessee and William Smith of Alabama to fill the two new seats. Catron was the Tennessee campaign manager for the newly elected president, Martin Van Buren. Smith declined the second seat, giving Van Buren the opportunity to name Alabama senator-elect John McKinley to the seat.

During Taney′s tenure, the Court continued to assert its power and bolster that of lower federal courts to resolve the increasingly frequent questions about the allocation of government authority. The decision reached in Scott v. Sandford (1857) provides a dramatic example of the extreme to which this point could be carried, but unlike that ruling, most of the Court′s pronouncements in this area simply consolidated and reinforced the position the Court already had taken in earlier years. In 1838 Rhode Island had asked the justices to resolve a boundary dispute with Massachusetts, the first such case to come before the Court. Massachusetts moved to dismiss the case, arguing that the Court lacked the power to hear it. Over the dissent of Chief Justice Taney, the Court rejected the motion and proceeded with the case, which was resolved in favor of Massachusetts in 1846. [84] Also during the 1838 term, the Court decided Kendall v. United States ex rel. Stokes, upholding the power of a federal court to issue an order directing an executive branch official to perform certain “ministerial” duties—even if the court order directly conflicted with presidential instructions. Such orders, held the Court, did not breach the separation of powers. [85]

The increase in the number of corporations in the United States brought questions of corporate rights to the Court, and in 1839 the Court held that states could forbid out-of-state companies from doing business within their borders. In the same case, however, the Court effectively moderated that holding, declaring that without clear evidence that the state intended to exercise this power, it would be assumed to consent to the operations of such “foreign” corporations. [86] Five years later, the Court opened the doors of the federal courts to corporate litigation by modifying the strict view of a corporation′s “residence” adopted early in the Marshall era. The new rule allowed more cases involving corporations to be heard in federal courts, rather than state courts, on the basis that the corporation and the opposing party were residents of different states. [87]

Slavery and the States

The early victories of the Taney era for advocates of state sovereignty were followed by a number of defeats in the 1840s. In Holmes v. Jennison (1840) the Court held that states had no power to engage in foreign affairs. [88] Two years later it held that federal courts were not bound by state judges′ interpretations of state laws. In another case the Court held that states could not tax the income of federal officials. [89] By the early 1840s virtually all questions of states′ rights were linked to the increasingly contentious issue of slavery.

The Court had carefully avoided addressing slavery in any but peripheral ways, but as Swisher observes, in 1841, “The Court found itself in the thick of the slavery discussion, from which it did not actually escape until the close of the Civil War period, even though there were intervening years in which no such cases were actually decided.” [90] Even when the issue was commerce in general, with no obvious tie to slavery, the Court′s opinions were closely perused and construed for their effect on state power to deal with slavery. The double-edged nature of the issue—and all judicial efforts to deal with it—was evident in the 1841 and 1842 rulings of the Court and their public reception.

In 1841 the Court decided Groves v. Slaughter on a point other than the slavery questions presented, but Justice McLean′s opinion, declaring the right of a state to exclude slavery, was interpreted by some southerners as upholding the right of a state to exclude free blacks as well. [91] The following year the Court decided Prigg v. Pennsylvania (1842), striking down a Pennsylvania law establishing procedures for determining whether a black person was a sought-after fugitive before he or she was taken out of the state. [92] The Court held that federal power over fugitive slaves was exclusive, leaving states no opportunity to pass such laws. Swisher notes,

while upholding the power of the federal government to provide for the return of fugitive slaves, it nullified the obligations and seemed to nullify the power of the states to aid in the process, [and] it at once gave incentive to abolitionist activities and led the South to demand enactment of a Fugitive Slave Act which could be effectively administered without the aid of the states. Thereby it added to the furor of sectional conflict and the hysteria of competing parties. [93]

The Court′s efforts to deal with these difficult issues were hampered by the illness and disability of some of its members and then by long-vacant seats, which were the product of political turmoil outside the courtroom. One of these vacancies was the longest in Supreme Court history. After the death of the eccentric Justice Baldwin, his seat remained empty for more than two years. This situation resulted from the political disaffection that marred the relationship between President John C. Tyler and Congress. Tyler had more nominations to the Court rejected than any other president. Of his six nominations, only one was confirmed.

Before Tyler took office, another new justice filled a seat. Justice Barbour died during the 1841 term. The lame-duck president, Van Buren, nominated—and the Senate confirmed—Peter Vivian Daniel of Virginia, a federal judge, to Barbour′s seat. Tyler had his first chance to name a justice when Justice Smith Thompson died in 1843. He chose Secretary of the Treasury John Spencer, who was rejected, 26–21, by the Senate in January 1844. Tyler next nominated Reuben Walworth, state chancellor of New York. Before its midyear adjournment, the Senate tabled that nomination. In April Justice Baldwin died, and Tyler nominated Philadelphia lawyer James Edward King for that seat. The Senate also tabled King′s nomination, and both of these stalled nominations were withdrawn. Early in 1845, Tyler, now a lame duck in addition to his other political disabilities, sent two more names to the Senate. To fill the Thompson seat, he chose Samuel Nelson, a New York judge. Nelson, a well-respected figure, was quickly confirmed by voice vote. In a return to form, the Senate ignored Tyler′s selection of John M. Read as Baldwin′s successor. That seat remained empty for another year.

Early in James Polk′s administration, Justice Story died, after serving thirty-three years and ten months, almost as long as Chief Justice John Marshall′s tenure. In December 1845, Polk nominated George Woodward of Pennsylvania to fill the Baldwin seat, and Sen. Levi Woodbury of New Hampshire to fill Story′s chair. Woodbury, Taney′s successor as secretary of the Treasury, was confirmed early in 1846. Woodward, whose nomination was opposed by one of his state′s senators, was rejected on a 29–20 vote. Finally, in August Polk named Pennsylvania judge Robert Cooper Grier to the Baldwin seat. Grier′s confirmation ended the twenty-eight-month vacancy, and for the next five years, the Court′s membership was complete and stable.

Confusion and Change

The Court′s performance on the connected issues of commerce and slavery was confusing, to say the least. In the December 1846 term, the Court upheld the federal fugitive slave law. [94] In the same term, however, it backed state power to regulate commerce in intoxicating liquor. The diversity of reasoning among the justices in the License Cases from Massachusetts, Rhode Island, and New Hampshire reflected the Court′s growing division over the proper allocation of state and federal power over commerce. Six justices wrote nine opinions. [95] In 1849 this uncertainty flowered into complete confusion with the Court′s ruling in the Passenger Cases.

These two cases, from New York and Boston, involved challenges to state laws that required masters of vessels to post bonds and to pay a tax for each immigrant who landed in the state. The laws were challenged as infringing upon federal power to regulate foreign commerce. They were defended as a proper exercise of the state′s police power to protect its public health and welfare. After hearing each case argued three times, the Court found that these laws conflicted with federal power over foreign commerce and therefore were unconstitutional. Beyond that point, however, the Court splintered, with eight justices writing separate opinions that took seven hours to read from the bench. The justices could not agree on whether the federal power over foreign commerce was exclusive, leaving no room for state regulation, or whether there might be such room if Congress had not exercised its power in a particular area. [96] There was no opinion of the Court in these cases, and reporter Benjamin C. Howard, exercising considerable wisdom, declined to summarize the ruling beyond the fact that it struck down the challenged laws. For details and reasoning, he simply referred the reader to the “opinions of the judges.”

In the 1829 case of Foster and Elam v. Neilson, the Court had refused to resolve an international boundary dispute because it said such a disagreement presented a “political question” that should be resolved by the political branches of the government. [97] Twenty years later the Court applied this doctrine in Luther v. Borden (1849) and refused to decide which of two competing factions was the legitimate government of Rhode Island. This too was a political question, held the Court, suitable for resolution by Congress, not the Court. [98]

Procedural changes during this time reflected the end of the days when the Court considered only a few cases and did so at a leisurely pace that allowed time for lengthy arguments and required less recordkeeping. In 1839 the Court required that all motions to it be filed in writing with the clerk. In 1849 the Court limited the time for arguments, giving counsel for each side two hours to present his case, but no more, without special leave. In 1843 Richard Peters, for fifteen years the Court′s reporter, was fired by four of the justices acting in the absence of the chief justice and their other colleagues. Peters had fallen out of favor with several of the justices as a result of differences over the inclusion of their opinions in the reports. Peters was replaced by Benjamin Howard of Maryland, a former member of Congress and a college friend of Justice Wayne. In 1844 Congress responded to the Court′s increasing workload by once again lengthening the term, moving opening day from January to the first Monday in December.

Confidence and Clarity

Despite the personnel changes and philosophical difficulties endured by the Court during the 1840s, public confidence in it continued to grow. Charles Warren notes that public esteem for the Supreme Court was at a peak in the last years of that decade: “While there were extremists and radicals in both parties who inveighed against it and its decisions, yet the general mass of the public and the Bar had faith in its impartiality and its ability.” [99] The first decisions of the next decade appeared to bear out this confidence, as the Court exercised restraint in dealing with the slavery issue and appeared to be clarifying its position on matters of commerce.

In the December 1850 term the Court heard arguments in Strader v. Graham. The basic question—which arose again in Scott v. Sandford a few years later—was this: Were slaves still slaves after they had worked for a time in a free state but then returned to a slave state? The Court held that this matter should be resolved by the laws of the state in which the slaves were residing; it was not a matter for federal courts to resolve. [100]

In 1851 Justice Woodbury died. President Millard Fillmore chose Benjamin Robbins Curtis, a noted Boston attorney, as Woodbury′s successor. Confirmed in December 1851, Curtis′s tenure was brief, but he left his mark on history. During his first term, the Court decided Cooley v. Board of Wardens of the Port of Philadelphia (1852), a Commerce Clause challenge to a Philadelphia ordinance regulating the use of pilots in its harbor. The Court upheld the ordinance, with Curtis as its spokesman. There are two categories of interstate and foreign commerce, he explained. One was essentially local and could be regulated locally, so long as it was not regulated by Congress; the other was essentially national and needed a uniform rule if it was to be regulated at all. This latter category could never be regulated by the states. [101] In one sense, Curtis′s opinion was no more than “an eloquent statement of indefiniteness,” writes Swisher a century later, but “with the statement the indefiniteness came to seem in some way manageable, by contrast with the confusion of multiple opinions in the License Cases and the Passenger Cases. The opinion promised to give a more pragmatic, less conceptual and categorical direction to the Court′s thinking concerning state regulation of commerce.” [102]

This term included two other commerce and navigation decisions of importance. In Pennsylvania v. Wheeling & Belmont Bridge Co. (1852) the Court held that a bridge built by the state of Virginia across the Ohio River was too low and therefore obstructed interstate commerce. The Court ordered the bridge torn down. [103] Congress, however, in 1852 passed a law that declared the bridge did not obstruct interstate commerce, allowing the bridge to stand. This law is the first instance of Congress overturning a Court decision by legislation. Also that term, the Court responded to the growing network of national commerce and transportation, substantially enlarging the federal government′s admiralty jurisdiction to include all the nation′s navigable waterways, not just those subject to the ebb and flow of tides. [104]

John A. Campbell (Source: Library of Congress.)

In July 1852 Justice McKinley died. To replace him, President Fillmore chose Edward A. Bradford of Louisiana, who failed to win Senate confirmation. Fillmore next named Sen. George E. Badger of North Carolina, whose nomination was effectively killed when the Senate postponed consideration of it, by a one-vote margin, early in 1853. In the last week of his term, Fillmore sent a third name to the Senate—that of Louisianan William C. Micou—but the Senate refused to confirm him. The new president, Franklin Pierce, chose John Archibald Campbell of Alabama, who was well known for his scholarship and for his advocacy before the Supreme Court. Campbell was confirmed by voice vote.

In 1856 the Court began the long process of defining due process. In Murray′s Lessee v. Hoboken Land & Improvement Co. (1856) the Court held that the Fifth Amendment guarantee of due process applied to the actions of Congress, as well as to those of the executive and judicial branches. [105] Justice Curtis, writing for the Court, defined due process as procedures that did not conflict with specific written provisions of the Constitution or with the established practice in England at the time of the settlement of the New World.

Scott v. Sandford

In 1856 the Court heard arguments in the case involving Dred Scott, a Missouri slave who claimed that he was free as a result of a sojourn in Illinois and other territories that were “free states” under the Missouri Compromise of 1820. Scott′s case was first argued on February 11. In May the Court ordered the case argued again. Reargument took place early in the December 1856 term. Justice Curtis′s brother was one of the attorneys appearing in the case.

Chief Justice Taney was aging, which, along with the health and family problems of other members of the Court, slowed its operations. It took until February 1857—a year after the first arguments—for the justices to discuss Scott v. Sandford. The Court agreed that the decision would follow that in Strader v. Graham (1851), holding that Scott′s status should be resolved under state law. The majority agreed not to consider the larger issue—whether Congress had the power to exclude slavery from some territories, as it had done in the already repealed Missouri Compromise. Justice Nelson was assigned to write the majority opinion. Justices McLean and Curtis, both adamant abolitionists, decided to dissent and announced their intention to declare that the Missouri Compromise was proper and that Congress indeed had the power to ban slavery from the territories. The majority was compelled to revise its plan. Nelson′s assignment was withdrawn, and Chief Justice Taney assumed the task of writing the majority′s opinion.

Taney′s illness delayed its announcement until March 6, 1857, just after President James Buchanan was inaugurated. Each justice wrote a separate opinion in the case; the reading of the opinions took two days. The majority declared black people forever disabled from attaining citizenship, the Missouri Compromise unconstitutional, and Congress powerless to halt the spread of slavery. [106] The Court had overreached its power in setting such limits to the hopes of blacks and the powers of Congress. It forced the issue of slavery out of the courtroom and the legislative chambers and onto the battlefield. This was also the first of the “self-inflicted wounds” of the Court. One scholar summarizes its effect on the Court:

During neither the Civil War nor the period of Reconstruction did the Supreme Court play anything like its role of supervision, with the result that during the one period the military powers of the President underwent undue expansion, and during the other, the legislative powers of Congress. The Court itself was conscious of its weakness… . [A]t no time since Jefferson′s first administration has its independence been in greater jeopardy than between 1860 and 1870. [107]

The Scott decision, endorsed by southern Democrats and denounced by northern Democrats, divided the party and enabled the Republican Party to win the White House in 1860. Of this development, Charles Warren writes, “It may fairly be said that Chief Justice Taney elected Abraham Lincoln to the presidency.” [108] Another result of that decision was Justice Curtis′s decision to resign in September 1857 after only six years on the Court. His philosophical disagreement with his colleagues and his general lack of confidence in the Court, compounded by an acrimonious exchange with Chief Justice Taney over access to the Scott opinions, spurred him to leave the bench and return to his more lucrative practice of law. In subsequent years he argued more than fifty cases before the Court, including the first of the Legal Tender Cases, which he lost. To replace Curtis in the “New England” seat President Buchanan nominated former attorney general Nathan Clifford. Considered a party hack by some in the Senate, Clifford was barely confirmed, 26–23, on January 12, 1858.

Although Chief Justice Taney′s name became almost synonymous with his opinion in Scott v. Sandford—and the damage it did to the nation and the Court—his last major prewar opinion was far more eloquent and more enduring in its impact. Two years after the Scott ruling, the Court decided Ableman v. Booth (1859). In speaking for the Court, Taney delivered a ringing reaffirmation of federal judicial power. Ableman v. Booth involved an abolitionist in Wisconsin who was tried and convicted of violating the federal Fugitive Slave Act. Before his trial and after his conviction, state judges ordered federal officials to release him, using the writ of habeas corpus and declaring his detention improper.

The case came before the Supreme Court in January 1859. The state did not send anyone to argue its side. On March 7, 1859, a unanimous Court declared that state judges lacked the power to interfere in such a manner in federal judicial proceedings. To allow such interference, wrote Taney, “would subvert the very foundations of this Government.” As long as the Constitution endured, he continued, “this tribunal must exist with it, deciding in the peaceful forms of judicial proceedings the angry and irritating controversies between sovereignties, which in other countries have been determined by the arbitrament of force.” [109]

The Scott case and the conflict that followed so colored historians′ view of the Taney Court that only after a century had passed was an objective assessment of its accomplishments attempted. Swisher describes the Court′s decisions and operations during this period:

By contrast with the work of the same tribunal in various other periods, the essence of its contribution was seldom focused in eloquent philosophical statement from the bench. The Taney Court was peculiarly unphilosophical… . [I]t tended to be assumed that the federal constitutional system was now generally understood so that the earlier forms of judicial explanation were unnecessary. The government was no longer experimental but was a going concern… .

The Taney Court fell upon evil times not because of Jacksonianism or even because of lack of ability on the part of its members, but because it was caught in the grinding pressures of sectional conflict. A Court committed to the application of the law was bound to crash into difficulties when the nation itself divided over whether there was indeed a surviving body of constitutional law binding on all the states and all the people. [110]


Document Citation
1 David G. Savage, States′ Rights, 1836–1860, in Guide to the U.S. Supreme Court 17-23 (5th ed., 2011),
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