Judicial Impotence

Slavery dominated American politics from the Founding to the Civil War, yet the Supreme Court rarely addressed the issue. In Slavery and the Supreme Court, 1825–1861, Earl M. Maltz, Distinguished Professor of Law at Rutgers University–Camden, offers a wonderfully readable and important study of the Court's slavery cases (The Antelope, heard by the John Marshall Court, and seven other cases brought before the Roger Taney Court: The Amistad, Groves v. Slaughter, Prigg v. Pennsylvania, Strader v. Graham, Dred Scott v. Sandford, Ableman v. Booth, and Kentucky v. Denison). Maltz's stated mission is threefold: provide essential background for each of these cases and the individual justices who decided them; explain the substance and evolution of the Court's slavery jurisprudence; and, perhaps most importantly, address the Court's ability to resolve thorny political conflicts.

While the justices contributed to growing sectional tensions, the "Court was only a junior partner in the struggle" (p. 302). Maltz challenges the traditional view that the Court effectively championed Southern interests, claiming that, despite the infamous Dred Scott decision, the Court was not proslavery. Further, "even under the most trying circumstances, the actions of each justice were determined by a complex interaction between political and doctrinal considerations," which, when taken together, exemplify "the limitations on the Court's ability to finally resolve hotly contested, controversial political issues for the society as a whole" (p. 300). Current justices "forget this lesson only at their peril" (p. 302).

In a provocative foreword, noted constitutional scholar and political scientist Mark A. Graber informs us that the antebellum Court was proslavery, not for having proclaimed slavery a positive good so much as for unemotionally tolerating it as "a fact of life" (p. x). The justices "bore a distinctive responsibility for constitutional evil" prior to the Civil War, not because they conspired to support slavery so much as they allowed themselves to be constrained by legal text; "the immorality of the judicial system was rooted in its apparent amorality" (p. xii). By insisting on legal precedent and procedure, the justices sacrificed their moral authority. Graber claims that the justices simply "did not see the human beings affected by the litigation before the bench" (p. xiv).

As Graber also points out, the number of comprehensive works on slavery and the Court is few. Apart from Helen Tunnicliff Catterall's five-volume Judicial Cases Concerning American Slavery and the Negro, published in 1968, and Julie Novkov's recent sophisticated analysis of miscegenation cases in Alabama, the most directly relevant book is Robert M. Cover's Justice Accused: Antislavery and the Judicial Process, the classic work on Northern judges torn between moral commitment to human freedom and judicial responsibility to legal principles.

Maltz structured his book to demonstrate the Court's evolving stance on slavery. Contrary to the "neoabolitionist perspective," which maintains that the Court consistently favored slaveholders, Maltz contends that such a view "oversimplifies the complexities of the issues facing the Court in slavery cases" (p. xix). Maltz divides his study into five sections, each corresponding to a different phase in the Court's altered jurisprudence: the justices originally focused on federal-state divisions under Chief Justice Marshall (part one) and adhered to relative neutrality in the early years under Chief Justice Roger Taney (part two), before contributing to an escalation of sectional tensions in the years between 1843 and 1853 (part three) and a more complete "Sectionalization of American Politics" from 1853 to 1850 (part four). Ultimately, with the election of President Abraham Lincoln in 1860, judicial failure gave rise to an "Isolated Court" (part five).

Part one is quite brief, looking back on a time when slavery was not the pivotal issue in American politics. During the tenure of Chief Justice John Marshall, 1801–35, "only the 1825 decision in The Antelope was of lasting doctrinal significance" (p. 3). In that case, which addressed the status of the international slave trade and the fate of over 250 Africans found aboard a Spanish vessel...