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[139 chapter seven The Failure of Evasion Dred Scott v. Emerson, Strader v. Graham, Swift v. Tyson, and Dred Scott v. Sandford “how much more weight of authority and general acquiescence this decision would have commanded,” Massachusetts lawyers Horace Gray and John Lowell briefly wondered in a lengthy critique of Dred Scott, “if the majority of the judges had confined themselves to the point necessary to the judgment.”1 Gray and Lowell raised a valid point, for Chief Justice Roger Taney and his associates had an opportunity to dispose of the case on very narrow grounds, which would have allowed them to avoid ruling on the citizenship and territorial questions. Part of Dred Scott’s fact situation involved a Missouri master who took an enslaved person to a free state (Illinois), stayed a few years, and then returned to Missouri with his slave. Missouri’s Supreme Court had ruled, albeit recently, that a stay in free territory accompanied by a “voluntary” return created no claim to freedom. In Strader v. Graham, moreover, the Taney Court had declared that it would defer to the state courts in such matters.2 Under such circumstances, the Supreme Court could have easily pronounced Dred Scott a slave without addressing any other issue. Gray and Lowell offered little speculation about why the court went on to the other issues, but other commentators were not as circumspect. A writer for the North American Review bluntly stated the matter: Two years’ residence in a free State, with the consent of his master, did not make him a free man. . . . This was the whole principle in dispute, on the merits, and the court have now decided it. . . . What more is to be done? . . . Do they stop here? or is other work to be done? Does deciding the merits end the case? By no means. “There is still much land to be possessed.”3 139 140 inescapable opportunity 1 That land, of course, was the territory covered by the Missouri Compromise restriction. When they addressed the other issues, the justices transformed Dred Scott into “a political manual or text-book, an authorized registration of the political heresies” of the Democratic Party.4 Taney and his associates had numerous reasons for addressing all the questions involved in Dred Scott. Some were certainly partisan; others were more closely linked to the debates that had dominated the court in the 1850s. Taney, for example, found that the citizenship question provided an opportunity to respond to the southern faction and sever the connection between black and corporate quasi-citizenship. Yet scholars should not overlook the justices’ genuine effort to avoid these issues and to decide Dred Scott on the narrowest possible grounds. By the time it had reached the Supreme Court, the case had already become laden with politically charged questions, and a short-lived majority opted to avoid them by invoking Strader. After a great deal of internal debate, the court’s initial majority maintained, through Justice Samuel Nelson, that the court was bound to follow the Missouri Supreme Court’s ruling in Dred Scott v. Emerson (1852), which had denied Scott’s claims to freedom.5 This strategy failed, but not primarily because the justices gave in to their partisan urges and judicial agendas. Instead, it failed because Dred and Harriet Scott, together with their lawyers, pursued a litigation strategy designed to avoid Strader, which controlled cases coming out of state supreme courts. Dred and Harriet Scott proceeded in diversity jurisdiction, where the application of Strader was not as clear. Recent rulings in diversity jurisdiction had only rendered Strader’s relevance more uncertain, since in the years following Swift v. Tyson the Supreme Court had become increasingly less deferential to state court rulings. By the eve of Dred Scott, the Supreme Court had even claimed the right to ignore rulings with which it disagreed. The Scotts’ litigation strategy, aided by Justice John McLean’s willingness to invoke the court’s recent rulings in diversity against Nelson’s argument, ultimately forced the justices to abandon a narrow ruling in favor of the sweeping ones that made Dred Scott infamous. Leaving behind that initial strategy, however, probably owed more to the court’s accidental undermining of its own evasive mechanisms than to anything else. Originating in the 1840s as an effort by Dred and Harriet Scott to hold their family together, the Dred Scott case transformed in the hands of the Missouri Supreme Court into an overtly political repudiation of its policy...

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