Roger Taney and the Limits of Judicial Power

In a surviving portrait of Roger Taney his disheveled hair and pained, meditative expression create an ascetic appearance more appropriate to a saint than to the man who has come to be called the judicial defender of racism and human bondage. His reputation has been resurrected several times by scholars, who have pointed out that he was a judge of considerable talent and stature and that his association with the infamous Dred Scott decision needs to be viewed in the context of his other accomplishments. Yet he remains a symbol of the moral nadir of the American judicial tradition, when the Supreme Court of the United States publicly declared the “degraded status” of blacks in America and the inherent inferiority of their race, and gave legal sanction to the enslavement of blacks by whites. With Dred Scott to remind us of the ignorance and viciousness long embedded in American culture, Taney’s reputation may never be completely vindicated. He forces us to see the extent to which our institutions of government and our system of laws can become, even while administered by the educated and well-intentioned, affronts against humanity.

Taney was representative of educated professional Americans of his generation. Confronted with a rapidly expanding economy, changing political alignments, and the growth of cultural schizophrenia of which the system of black slavery was a root cause, he sought to adjust the nation’s institutions so that they might survive in the new conditions created by these phenomena. Like many other statesmen of his day, Taney tried and failed to solve the slavery problem, but his response to the problem, no more unsuccessful than any other response, has become particularly offensive with time. The tension between the humanitarian and egalitarian ideals associated with the founding of the American nation and the presence of black slavery was simply too debilitating and pervasive to admit of peaceful consensual solutions; moreover, it occurred at a time when consensual values were noticeably lacking throughout American civilization. The internal conflicts, of which the slavery issue was the most dramatic example, were never truly resolved, but engendered a forced reconciliation of the nation, with one set of attitudes summarily superimposed on another. Taney can hardly be faulted for failing to provide a set of fundamental constitutional principles by which the question of slavery could be amicably settled. Indeed, given the ideological context of his time, none existed. But he can, from another perspective, be faulted for the political and moral choices he made in attempting to settle the question.

Between 1836, the year when Taney replaced Marshall as Chief Justice, and 1857, the year of the Dred Scott decision, an affirmative justification for racially based enslavement was developed and refined in America. On the Court, Taney provided legal support for that justification. His intention was benign; he was concerned not with preserving slavery as such but with maintaining peaceful co-existence between competing ideologies in the nation. One cannot, however, ignore the fact that, despite his motives, Taney attempted to use the power of the judicial branch of government to further the existence of a subculture in which persons of one race were considered the property of persons of another. In this use of his office Taney demonstrated the moral and political limits of judicial power in America.