Still 25 years young of the raid on Harpers Ferry, a Chief Justice of the Supreme Court died, a bell cracked, and war looked “irresistible.” For nearly 30 years, John Marshall commanded the bench, defined its role, and gave it teeth. Under Marshall, the court quit its obscurity as an appellate arbiter between states and, having enshrined “judicial review” in the national system with Marbury v. Madison (1803), became the definitive voice of the law. Marshall’s shadow was long and he won a kind of celebrity––he was one of those men of state who made others of the guild blush. In 1832, at the age of 76, he was ready to retire but was waiting for a new president to take office.
The sitting president was Andrew Jackson, whose views on sovereignty critics called medieval. Marshall hoped that Henry Clay would beat Jackson, denying him the right of replacement, and name Associate Justice Joseph Story Chief, but Jackson swept Clay and his party held the Senate by a thread. By the summer of 1835, Jackson’s party had built a three-fifths majority in both houses of Congress and Marshall was dead. Days before his death, he wrote to Story: “I yield slowly and reluctantly to the conviction that our constitution cannot last.” On July 8, 1835, the Liberty Bell tolled at his funeral and a small fracture opened along its waist.
Jackson nominated Roger B. Taney to fill the vacancy, then went on an appointing spree: in his first term, he’d had two justices confirmed to the court––one, an opening inherited from John Quincy Adams’ administration after the Senate barred him from a lame-duck appointment out of spite. In his second, he added five more, two on the last day of his presidency when Congress grew the bench from seven seats to nine.
Whether it was ruthless politicking or posterity pathology, Jackson recognized something in the anatomy of American government––that the court is the central organ of the state––and he made himself tribune of the new “democracy” and master of its aristocratic substrate. Jackson’s insight wasn’t original but he was the first to exploit it. 50 years earlier in the Anti-Federalist Papers, one opponent of the Constitution said of the court that, “There is no power above them, to control any of their decisions…Men placed in this situation will generally soon feel themselves independent of heaven itself.” The will of the court was ultimate.
Taney’s nomination constellated outrage among the opposition. One mordant commenter wrote, “The pure ermine of the Supreme Court is sullied by the appointment of that political hack.” Early in his tenure, Taney cemented Jacksonian principles in law, burnished slavery, and overturned precedents from the Marshall Court. If this was a revolution, though, it was quiet. The court’s rewriting of precedent was gradual, undoing much of what Marshall had made and Congress could sanction. Soon enough, it was operating on its own premises: based on the licenses it had issued itself, its jurisprudence was legitimate, its politics law. By 1857, the court was held in high esteem for, of all things, its restraint.
Then in March of that year, the court ruled in the case of Dred Scott, a slave from Missouri whose owners had taken him into Illinois where slavery was banned, and who sued for his freedom. The case was appealed to successively higher courts for a decade until it reached Taney’s Supreme Court, whose majority ruled that Congress had no power to outlaw slavery in the states, denied all blacks citizenship, and said that any slave living or passing through a free state remained a slave. With Dred Scott, the court established an impenetrable precedent for slavery’s survival and spread––what William H. Seward, the radical Republican from New York, called a “judicial usurpation,” far too broad to be defeated by legislation or litigation. Only after four years of civil war would the jurisprudence of slavery be exorcised from the law.
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The achievements of this second national revolution were undone within a decade. In 1877, the federal occupation of the South withdrew and with it Reconstruction government. The new state legislatures resumed the work of the Confederacy with different devices. Poll taxes, grandfather clauses, literacy tests, and terrorism depleted Black emancipation of its meaning and force of law. The states were not without federal aid. The Supreme Court anticipated this style of reactionary “home rule” four years earlier in the Slaughterhouse cases.
In 1869, a fraternal order of butchers in Louisiana sued the state for incorporating a regulatory agency to oversee the slaughterhouses, claiming its monopoly violated their Fourteenth Amendment rights to due process and equal protection of the law. Samuel Miller, a Lincoln appointee, authored the opinion of the court: “this amendment speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.” The court’s decision was a vast abstraction from the original suit. In total, it gutted the Fourteenth Amendment’s purpose as an extension of the Bill of Rights to the states, a corrective to Dred Scott, and a certificate of Black emancipation. All that the war had been fought to remedy was being remade.
Slaughterhouse was only the beginning of the Supreme Court’s demolition of Reconstruction. In 1876, the court ruled in United States v. Cruikshank, the case of three white militiamen convicted of mass murder in the Colfax Massacre––what, according to Eric Foner, was the “bloodiest single act of terrorism in all of Reconstruction,” in which as many as 153 black men were killed. The three men at the center of the case had been convicted of terrorism under the Enforcement Act of 1870––legislation that authorized the federal government to prosecute paramilitaries for violations of the voting rights provision of the Fifteenth Amendment. The court’s decision in Cruikshank reversed the convictions and sustained the Slaughterhouse precedent: that the Bill of Rights did not apply to the states. Chief Justice Morrison Waite’s majority opinion upset every axiom of federalism dating to Marbury v. Madison: “The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of those governments will be different from those he has under the other.” The court was willing to subject itself to the most obscene contortions to defend its racism. A decade later it would restate that commitment in Presser v. Illinois.
The Voting Rights Act of 1965 restored the soundness of the Fourteenth and Fifteenth amendments using much of the architecture of federal intervention surviving from Reconstruction. It abolished the tests and taxes, sent election inspectors to the polls, required states to receive federal approval before modifying voting laws, and prohibited the use of demographics as the “predominant factor” in drawing electoral districts. A year after its passage, the majority of eligible African Americans were registered to vote in 9 of 13 southern states. For decades the Supreme Court affirmed its provisions.
Then in 2013, in Shelby County v. Holder, the court invalidated the core of the bill, which had required 16 states with histories of racial discrimination in elections to submit plans for redistricting and changes to voting laws to the Justice Department for review. Chief Justice John Roberts delivered the opinion of the court: “There is no denying…that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” In other words, the successes of the act warranted its destruction. “Our country has changed” was Roberts’ “better angels” dictum of choice. In the seven years since the ruling, those 16 states formerly under federal supervision have closed thousands of polling sites in Black communities, purged county voter rolls, and imposed strict ID laws. Today’s court once again has been polluted by the jurisprudence of slavery.
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The death of Ruth Bader Ginsburg and the confirmation of Judge Amy Coney Barrett to the bench have renewed the old Anti-Federalist worry––of one faction gaining absolute control over the state. Barrett’s appointment is supposedly all the more concerning, for the liberals on the court, now outnumbered six-to-three, can no longer rely on Roberts’ occasional caprice to tip the balance. After winning liberal plaudits in 2012 for upholding the Affordable Care Act’s individual mandate, Roberts was heralded as a demure “consensus-builder.” For years the image was tested but endured. And when Justice Anthony Kennedy retired in 2018, Roberts claimed his place as the court’s great moderate by accident of its polarity.
The role of unifier––the one to restore the institution’s credentials––was one he had coveted from the beginning. Nearly two years after his confirmation, in early 2007, Roberts remarked in an interview for the Atlantic, that the Court was “ripe for a similar refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy.” The court’s legitimacy, he went on, is vindicated by consensus––when rulings look inevitable––and by sobriety––when opinions and dissents are restrained. The two defuse accusations of partisanship.
The appearance of sobriety has taken years for Roberts to cultivate. In 2005, at his confirmation hearings, he chose a telling metaphor, that he aspired to be the court’s “umpire,” and rejected the “originalist” brand. In 2009, when the court was gripped by battle over Citizens United v. F.E.C., after Justice Kennedy’s sweeping opinion endorsed unlimited campaign contributions by for-profit corporations and Justice David Souter authored a scathing dissent, Roberts was scandalized and had the case reargued to return the bench to decorum. Months later when the case was decided, Kennedy’s opinion had not substantively changed, Souter had retired in the interim, and John Paul Stevens spoke for the minority in a still scathing though less personal dissent. Roberts’ crusade of credibility paid off.
In mid-October of this year, Roberts once again sheltered the court from accusations of tyranny, siding with the liberal wing to force a 4-4 split on the Pennsylvania Supreme Court’s upholding of a law granting a 3-day grace period for late-arriving mailed-in ballots. The Senate had not confirmed Barrett in time for her to vote on the law’s legality, but, with the case soon being reargued, she may have the chance in the weeks ahead. Roberts did the calculations using his trusted formulas for keeping the court’s word credible––wait until Barrett’s arrival, have the next decision ooze consensus, let the center hold. Contrasted with Thomas and Alito, and now Gorsuch, Kavanaugh, and Barrett, Roberts’ is the face of the center, of the stoic. Forgotten in fear of the new hard-liners’ ascent is who Roberts is––the genial radical, the “utopian conservative”––and, leading the most right-wing court in a century, who he may become––the second coming of Roger Taney.
Roberts’ Shelby County opinion revived a 19th century leviathan. It took patience to breach the court’s recent and sustained confirmation of the Voting Rights Act––first in 1973, again in 1980, and once more in 1999. These were formidable precedents and they would not shatter on first touch. Roberts began chipping away at voting rights in 2009 in Northwest Austin Municipal Utility District Number One v. Holder. The decision was a preemptive strike on the original affirmation of the Voting Rights Act by the liberal Warren Court in South Carolina v. Katzenbach (1965). In the ominous idiom of the court, Roberts left the legality of the Voting Rights Act alone for the moment: “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”
Tomorrow came very soon. Roberts cited Northwest Austin in Shelby County, which answered those “difficult constitutional questions,” holding that, by focusing federal attention on jurisdictions with a history of electoral abuses, the Act violated the “fundamental principle of equal sovereignty” of the states. Equal sovereignty has a notorious lineage. Beginning with Tennessee in 1796, Congress has included in every state’s act of admission the phrase: “on an equal footing with the original States in all respects whatever.” To swell the power of the new slave states entering the Union, the Taney Court expanded the scope of “equal sovereignty” first in Martin and others v. Waddell (1842), then in Lessee of Pollard v. Hagan (1845)––which Roberts cites directly in Shelby County. Equal sovereignty reached its pinnacle in Dred Scott––any federal restriction on slavery profaned the sovereignty of the states. Roberts is working with the same clay.
Another of Roberts’ landmark state sovereignty defenses came in 2019 in Rucho v. Common Cause, in which the court held that questions of partisan gerrymandering could not be settled by judicial review––only by state legislatures. Rucho, like Shelby County, undid a Warren Court precedent and replaced it with an antique Taney principle. In 1962, the Warren Court ruled in Baker v. Carr that electoral redistricting was subject to judicial review. In the next several years, the Court elaborated on the decision with the doctrine of “one person, one vote.” “One person, one vote” tore at the legal fabric of Jim Crow and abandoned Taney’s opinion in Luther v. Borden (1849), which, with the same rationale as Roberts’ only a year ago, held that the court could not rule on the composition of state governments––more meat for states that had slavery written into their constitutions.
In 15 years on the bench, Roberts has managed to gradually strike at the heart of the last century of American jurisprudence and rescue the 19th century court. Cycles of revolution and counterrevolution in the law are nothing new and every Chief Justice aims for a slice of the immortal in reinventing the court’s prerogatives. But when the court loses its balance of partisanship, as it now has, it tends to be brazen. The timing now seems ruinous. This court may decide the presidential election, void the healthcare of tens of millions of Americans, and much more yet untold. 25 years separated Taney’s appointment and civil war. One brazen ruling, after dozens more covert ones presaged it, made history move fast and brought on the “irrepressible conflict.” The 19th century never ended and its pull will be on trial in the coming months and years. What will be our Dred Scott?