This aticle first appeared in the St. Louis Beacon, June 22, 2012 - There is a beautiful new sculpture outside the old courthouse downtown, a monument to two people whose claim to fame is that they lost two lawsuits more than 150 years ago. The names of these two losing litigants tarnish the legacy of both the Supreme Court of the United States and the Supreme Court of Missouri: Harriet Scott, and her husband, the ominously named Dred Scott.
The Scotts were slaves of African descent who sued for their freedom first in the state courts, then in the federal courts. When the U.S. Supreme Court turned down their quest for freedom in 1857, the court held that persons of African descent could not be considered citizens of the United States or of any state and, therefore, could not sue in a federal court.
The Scotts’ loss in 1857 followed a similar decision five years earlier in the Supreme Court of Missouri in 1852. The Scotts originally sued for their freedom in the state circuit court in St. Louis. Although they lost their first trial, the judge granted them a new trial and they won. The second jury found that the Scotts had lived in free territory; and thus, under the existing Missouri law applied in the trial court’s judgment, they no longer were in slavery. Their appeal, at the outset, looked unremarkable – the Missouri Supreme Court in prior cases had upheld the slaves’ position that traveling to and living in free territory had the legal effect of ending their enslavement.
But in the early 1850s, times had changed. There was contention in the air. The institution of slavery was in danger. It is entirely fair to say that public attitudes swayed the Missouri Supreme Court to discard its long line of precedent and hold that the Scotts had not escaped slavery.
The words of the dissenting judge, Hamilton Gamble, though he himself was a slave-owner, are worth remembering. Addressing the “temporary public excitement” over the issue of slavery that undoubtedly would cloud the people’s judgment, Gamble said: “Times may have changed, public feeling may have changed, but principles have not and do not change; and, in my judgment, there can be no safe basis for judicial decision, but in those principles which are immutable.”
The Scotts’ loss set the stage for the Civil War. The U.S. Supreme Court said that Congress had no power to outlaw slavery in any state or territory and that the Missouri Compromise a generation earlier – two acts of Congress that allowed Missouri’s admission into the union as a slave state and Maine’s admission as a free state – was unconstitutional. Accordingly, if slavery was to be abolished, it would have had to be by amending the constitution, an impossible task given that such an amendment would have to be approved by some of the slave states.
The reaction to the court’s ruling brought to the forefront of the new Republican Party a leader named Abraham Lincoln. In one of his most famous speeches, shortly after the Scott decision, Lincoln said a house divided against itself cannot stand. His Democratic opponent for the presidency in 1860, Sen. Stephen Douglas, who had defeated Lincoln in the quest for a U.S. Senate seat in Illinois in1858, believed slavery could be a state-by-state option But the decision in the case of Harriet and Dred Scott would make that compromise unlawful and a civil war attending the election of Abraham Lincoln almost inevitable.
What do we learn from these deeply flawed decisions that denied freedom to these decent and persistent litigants? We learn to be wary of decisions based upon current political whims, rather than on principles that, in the words of Judge Gamble, we should consider immutable. We should learn to be wary of decisions – like that of the U.S. Supreme Court in the Scotts’ case – that overreach and decide too much. It was one bad thing for the Supreme Court to deny the Scotts their day in court, but to deny Congress the power to abolish slavery was simply disastrous.
Today, as throughout our history, there is much contention in the air, and there is much that divides us. These contending forces can make our politics strong and vibrant, but when courts are overly attentive to political whims, and judges become partisans, the foundations of the rule of law are in jeopardy.
Mike Wolff, professor of law at Saint Louis University School of Law, is a former chief justice and judge of the Supreme Court of Missouri.