No — CASA v. Trump Isn’t a ‘Return to the Constitutional Horrors of Dred Scott’

A June 30 op-ed in the D.C. outlet The Hill is headlined “The Supreme Court’s injunctions decision returns America to the constitutional horrors of Dred Scott”. It argues that the June 27 majority opinion in Trump v. CASA, by Justice Amy Coney Barrett, is redolent of Chief Justice Roger Taney’s infamous 1857 decision in Dred Scott v. Sanford, which denied citizenship to Blacks and pushed the country toward Civil War. In fact, CASA puts the kibosh on the sort of judicial activism the majority opinion in Dred Scott embodied.

Dred Scott. For those unfamiliar, here’s a quick summary of Dred Scott.

The Supreme Court considered a suit brought by plaintiff Scott, who was enslaved in Missouri but who had lived in the free state of Illinois and in a section of the Louisiana Territory where slavery was outlawed by the Missouri Compromise of 1820, seeking his freedom.

The Court framed the key issue facing the justices thusly:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied [sic] by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

In the majority opinion, Taney concluded:

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

In his analysis, Taney focused in particular on the key phrase in the Declaration, which states, “We hold these truths to be self-evident: that all men are created equal”, before concluding:

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

Strong stuff, but respectfully that conclusion would have been news to the primary author of the Declaration, Thomas Jefferson, who proposed in his 1783 draft for the Virginia constitution to bar:

the introduction of any more slaves to reside in this state, or the continuance of slavery beyond the generation which shall be living on the 31st. day of December 1800; all persons born after that day being hereby declared free. [Emphasis added.]

In fact, in his original draft of the Declaration, Jefferson accused King George III of “wag[ing] cruel war against human nature itself” by “violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere or to incur miserable death in their transportation thither”.

That clause doesn’t appear in the final version; it was omitted (for among other reasons) to secure the assent of the delegates of South Carolina and Georgia to the Declaration. Regardless, the question was not as clean-cut as Taney presented it.

The Missouri Compromise. Not to negate the issues with first part of Taney’s analysis, but the bigger problem with his opinion in Dred Scott was what he did next.

Although he found Scott wasn’t a citizen and lacked standing to sue, Taney nonetheless turned to ruling on the constitutionality of the Missouri Compromise, which (among other things) barred slavery in the portion of the Louisiana Purchase north of the 36°30’ parallel — except for Missouri, which was admitted as a slave state at the same time as free Maine was admitted to the Union.

The constitutionality of that act was key to Scott’s claim, but again, Taney had already held that the claim would fail on standing grounds and under the “constitutional avoidance” canon, he should have skipped the rest of the case entirely.

Undeterred by such precedent, the chief justice then concluded the geographical restriction on slavery in the Missouri Compromise “is not warranted by the Constitution, and is therefore void”.

Both Justices Curtis and McLean, in their dissents, faulted Taney for considering the substance of Scott’s claim notwithstanding his standing finding (McLean also noted that five states allowed free Blacks the right to vote when the Constitution was adopted, meaning they were considered to be citizens and actually could have weighed in on the document), but the most charitable spin to put on the majority opinion is Taney had hoped to resolve legal issues then drawing the country to civil war.

If that were his intent, he could not have been more wrong. As History.com notes:

The Dred Scott Decision outraged abolitionists, who saw the Supreme Court’s ruling as a way to stop debate about slavery in the territories. The divide between North and South over slavery grew and culminated in the secession of southern states from the Union and the creation of the Confederate States of America.

“Judicial Activism”. “Judicial activism”, defined as “the practice of judges making rulings based on their policy views rather than their honest interpretation of the current law”, might seem like a modern plaint, but as legal scholar Kermit Roosevelt has noted, Abraham Lincoln lobbed a version of that objection at Taney shortly after the Dred Scott opinion was released.

In a June 1857 speech at the Freeman Institute, Lincoln criticized both Taney and his own key political opponent, Stephen Douglas, over their support for the decision:

We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. … But we think the Dred Scott decision is erroneous.

…

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country. [Emphasis added.]

“Mockery of Our Constitution”. The authors of The Hill op-ed cite to Justice Sotomayor’s dissent in deriding the majority in CASA for “’complicity’ in the president’s ‘mockery’ of our constitution” without noting that the dissent’s position would mock the separation of powers between the judicial and executive branches in the Constitution. Let me explain.

There are essentially two sources of federal court power: jurisdictional statutes and precedent.

For example, section 242 of the Immigration and Nationality Act (INA) provides — or more precisely restricts — the authority of federal courts to consider most immigration enforcement decisions. As the inimitable Andy McCarthy explains:

Congress has set up the system this way because the judiciary’s participation in immigration enforcement should be negligible. It involves (a) non-Americans whose due process rights are limited, and (b) questions about which non-Americans are permitted to be present in our country, and diplomatic considerations attendant to the transfer of aliens between nations — both of which are quintessentially political, not judicial.

Section 242 doesn’t govern review of all immigration decisions, of course, which means any would-be plaintiff challenging an immigration rule must look elsewhere for support.

Which brings me to precedent. At issue in CASA was the authority of trial-level U.S. district court judges to issue nationwide injunctions blocking the enforcement of executive branch policies.

Justice Barrett — who taught both civil procedure and constitutional law at Notre Dame School of Law — examined precedent and statute (the Judiciary Act of 1789) going back to the founding and found no authority in law or equity for district court judges to take such action.

Justice Sotomayor, in dissent, countered by criticizing the majority for failing to identify any precedent that barred universal injunctions, but as Justice Barrett noted in a footnote, “this absence only bolsters our case” given it shows “no party even bothered to ask for such a sweeping remedy — because no court would have entertained the request”.

For her part, Justice Jackson would simply skip the statutory and precedential review part, arguing federal courts exist in part to “order everyone (including the Executive) to follow the law — full stop”.

To which Justice Barrett responds:

We will not dwell on JUSTICE JACKSON’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary.

As I noted in May, Alexander Hamilton in Federalist 78 argued the judicial branch “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them”, given its dependence on the legislative branch for funding and on the executive to enforce its judgments.

The dissent in CASA would have made the federal courts — and district courts in particular — the strongest branch, vesting in a single judge the authority to shut down executive branch policy. And like Justice Taney in Dred Scott, it would have done so using the slimmest of authoritative reeds.