Commentary

Will the U.S. Supreme Court ever get around to overruling the shame of Dred Scott?| Michael Coard

165 years later, and this racist decision is still precedent, and popped up in a Kansas case

Dred and Harriet Scott (Illustration from Library of Congress/The Philadelphia Tribune).

By Michael Coard

On March 6 1857, U.S. Supreme Court Justice Roger B. Taney fatefully wrote: “[Blacks have] for more than a century … been regarded as beings of an inferior order … and so far unfit that they had no rights which the white man was bound to respect.”

Michael Coard (Twitter)

That blatantly racist language is from the high court’s notorious 1857 ruling in Dred Scott v. John F. A. Sandford.

But America’s pervasive court-related racism didn’t stop in 1857.

Just six years ago, Kansas Solicitor General Stephen McCallister on October 18, 2016 shockingly submitted a legal brief to that state’s Supreme Court citing the Dred Scott case to support the state’s anti-privacy/anti-women argument that his office was making in a case captioned Herbert Hodes, M.D. & Traci Lynn Nauser, M.D. v. Kansas Attorney General Derek Schmidt.

In that brief, the McCallister wrote, “While the Declaration of Independence states that all men are endowed certain unalienable rights including ‘Life, Liberty and the pursuit of Happiness,’ it does NOT grant rights that may be pursued through the judicial system. See also Dred Scott v. Sandford, 60 U.S. 393, 407 (1857) ….”

That’s not a typo. The top lawyer who argues cases in one of America’s 50 state Supreme Courts favorably cited the Dred Scott ruling a very short time ago.

Why? Because he’s a racist and because he’s a student of history who knows that the Dred Scott ruling has never been — I repeat never — judicially overturned at any time in this country’s entire history.

Marking a shameful anniversary & the U.S. Supreme Court’s racist failure | Michael Coard

Moreover, despite Congress’ passage of the 13th Amendment in 1865, 14th Amendment in 1868, and 15th Amendment in 1870, the Dred Scott decision was actually strengthened in 1873 by the U.S. Supreme Court in its racist Slaughterhouse Cases ruling.

Since the Dred Scott decision has never been judicially overturned, racist lawyers and racist judges can (blatantly or discreetly) rely on it in their arguments and rulings- even though, as noted by Encyclopedia Britannica, constitutional scholars agree that it is “widely considered the worst decision ever made by the Supreme Court.”

Here are just 10 of many other enlightening facts pertaining to America’s worst Supreme Court decision:

1. Enslaved at birth in Southampton County, Va., sometime between 1795 and 1809, Dred Scott was first assigned the name Sam Blow.

2. Dred Scott used that Sam Blow name until 1833 when he replaced it with the name of his older brother Etheldred Scott who died as a young man. That brother had been named after his so-called owner’s wife’s father.

3. Peter Blow, Scott’s original so-called “owner” who transported Scott to Missouri in 1820, died in 1832 after which Scott was “purchased” by Dr. John Emerson, an army surgeon. Emerson’s military tours took him to Rock Island’s Fort Armstrong, Ill., in 1833. Illinois, coincidentally, was a free state. Emerson lived there with Scott until 1836 when he was sent to Fort Snelling, which was in an area of the Wisconsin Territory that had banned slavery pursuant to the 1820 Missouri Compromise.

4. During his time in Fort Snelling with Emerson, Scott met and in 1836 married the beautiful 19-year-old Harriet Robinson. Then, as “property” of Maj. Lawrence Taliaferro, she was “sold” to Emerson. Although Mr. and Mrs. Scott remained at Fort Snelling, Emerson in 1838 was transferred to the Jefferson Barracks Military Post in Missouri. But he didn’t leave the married couple to enjoy any kind of honeymoon. Quite the contrary, while Emerson was away, he “rented them out” like mules.

5. About two or three months later, Emerson was dispatched to Fort Jessup, La., where he married Eliza Sanford. The Emerson couple then sent word to the Scotts ordering them to come labor for the Emersons in Louisiana. Mr. Emerson was reassigned to Ft. Snelling in 1838. Within two years, Mr. and Mrs. Scott were sent back to St. Louis where they were “rented out” again. When Emerson died in 1843, his widow, Eliza Irene Sanford Emerson, inherited his estate and for three years continued to “rent out” the Scotts.

6. Three years later, by 1846, after about a decade and a half of saving the little money he was sometimes permitted to earn when he wasn’t slaving for white people 24/7/365 and of combining that with what Mrs. Scott was able to earn under similar circumstances, Mr. Scott tried to buy his freedom for $300 (which has a value of $10,953.82 in 2022) and shortly thereafter his family’s freedom at a higher price. But Mrs. Emerson coldly refused.

7. As a result, both Mr. Scott and Mrs. Scott in May of 1846 filed separate lawsuits in Missouri. The legal theory was simple and was based on nearly three decades of state precedent, which held that there can be no slavery in free territories or free states as mandated by state and federal law, including the Missouri Compromise. And since the Scotts had lived in a free territory as well as in a free state, they were no longer enslaved persons but instead were forever free persons.

Lawyer Robert Morris fought — sometimes physically — to free the enslaved | Michael Coard

8. Shockingly, a jury of six white men in the first floor, west wing courtroom of St. Louis’ Old Courthouse in 1850 found in favor of the Scotts. But Mrs. Emerson appealed to the Missouri Supreme Court. And because she had moved to Massachusetts, she allowed her brother, John F.A. Sanford, to replace her as the named appellant. That’s why the case is officially known as Dred Scott v. Sandford. It incorrectly reads Sandford, not Sanford, because a typo in 1856 by a U.S. Supreme Court clerk was never corrected.

9. Following a successful state appeal by Sanford resulting in an 1852 reversal of the 1850 jury trial victory, the Scotts’ only option was to appeal to federal court, which they did in 1853. But that court, in order to illegally guarantee a win for Sanford, fraudulently applied the law as the state court had fraudulently interpreted it. The Scotts then took their case to the nine-member U.S. Supreme Court — which included seven who had been appointed by pro-slavery presidents — that reviewed it in 1856 and issued its historic 7-2 racist ruling the following year that Blacks “had no rights which the white man was bound to respect.”

10. However, there was a happy ending for Mr. Scott, Mrs. Scott, and their two young daughters, Eliza and Lizzie. When a man named Calvin Chaffee, who was not only a congressman but also an abolitionist, proposed to Mrs. Emerson to become her new husband, he insisted that she free the entire Scott family. She grudgingly complied by agreeing to the price offered by the woke sons of Peter Blow, who was Mr. Scott’s first “owner.” They used their wealth to free the Scott family on May 26, 1857. Mr. Scott then worked as a hotel porter in St. Louis until he became an ancestor on Sept. 17, 1858. Mrs. Scott joined him as an ancestor 18 years later in 1876.

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

Let’s jump from 1876 to just six years ago in 2016 to the Hodes case. As a result of nationwide outrage and professional embarrassment, the Kansas Attorney General intervened on Oct. 19, 2016, which was the very next day after the Kansas Solicitor General had favorably cited the Dred Scott decision, and issued the following official statement:

“Yesterday’s reference to Dred Scott in a State’s response brief does not accurately reflect the State’s position, is not necessary for the State’s legal argument, and should not have been made. Neither the state nor its attorneys believe or were arguing that Dred Scott was correctly decided…. [A]s soon as I became aware …. [that it was filed yesterday], I ordered the State’s brief withdrawn ….”

That’s cool, I guess. But I noticed that the Kansas attorney general didn’t say the Dred Scott decision had ever been overturned. And he didn’t say the Dred Scott decision is no longer arguably valid. He also didn’t say the solicitor general had no legal basis to cite the Dred Scott decision. Maybe that’s because the Dred Scott decision (unlike, for example, the 1896 Plessy v. Ferguson “separate but equal” decision that was overturned by the 1954 Brown v. Board of Education “separate is inherently unequal” decision) has never — I repeat never — been overruled by the U.S. Supreme Court.

Maybe it still is the law of the land. Maybe that explains why white cops got away scot-free when they murdered Eric Garner, Rekia Boyd, Michael Brown, Tanisha Anderson, Sean Bell, Kayla Moore, Tamir Rice, Alberta Spruill, Freddie Gray, Philando Castile, Alton Sterling and many others.

In fact, maybe that explains why cops killed 1,047 Black human beings during the past five years from 2017 to 2021. We really don’t have any rights that whites are bound to respect. So maybe we should start takin’ ‘em — by any means necessary.

Opinion contributor Michael Coard, an attorney and radio host, is a columnist for the Philadelphia Tribune, where this column first appeared. His work appears on Tuesdays on the Capital-Star’s Commentary Page. 

SUPPORT NEWS YOU TRUST.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.