Supreme Injustice: Slavery in the Nation’s Highest Court by Paul Finkelman (review)

In addition to editing, coediting, and cowriting volumes on topics in U.S. cultural, political, and legal history, Paul Finkelman is the author of several books on the politics of slavery. In Supreme Injustice: Slavery in the Nation’s Highest Court, he turns to the proslavery decisions of Chief Justice John Marshall, Associate Justice Joseph Story, and Chief Justice Roger B. Taney, the U.S. Supreme Court’s most famous antebellum jurists. Although historians have looked closely at Taney’s superfluously racist defense of slavery in Dred Scott v. Sandford (1857), Finkelman maintains that that case was the culmination of proslavery judgments that began in 1801. Together the justices facilitated the deterioration of sectional harmony and, by extension, the deaths of more than 600,000 Americans. Any of them could have, Finkelman argues, taken advantage of language in the Constitution that could have been used to combat slavery, protect the rights of free African Americans, and effectuate a peaceful, political resolution of slavery.

Finkelman provides concise yet informative examinations of the justices’ proslavery jurisprudence through case law, statutes, speeches, letters, archival and historical society collections, newspapers, and scholarly literature. Each chapter contains a short biography and a historiographical discussion that explain how historians have insulated Marshall, Story, and to an extent, Taney from slavery. This trend is especially odd in Marshall’s case, since he was a Virginia slaveholder who crafted jurisprudence that protected criminal slave traders, wrote court opinions to reverse successful lower court freedom suits, sending freed persons back to slavery, and belonged to the American Colonization Society.

Story was more complex. He was a New Englander, did not own slaves, and publicly opposed slavery. His time on the Court began during Marshall’s tenure and ended nearly a decade after Taney’s appointment in 1836. Even Story’s early opinions while he was on the Court opposed slavery, including a vote to free the Amistad Africans. However, Story’s ruling in Prigg v. Pennsylvania (1842) nationalized slavery and left free African Americans open to kidnapping. He was labeled the “slave-catcher-in-chief” by abolitionists (p. 170).

Taney, like Marshall, was a southern slaveholder who was castigated for the Dred Scott decision. But Taney even experienced a brush with scholarly expiation in the early twentieth century, when historians tried to revise his image. Finkelman debunks these revisions by presenting the proslavery decisions and racist statements that Taney made throughout his career. A welcomed addition is Finkelman’s exposure of Taney’s flawed historical thinking in his Dred Scott opinion. Regrettably, history is still often viewed through a lens that ignores the diverse history of the founding, which included African Americans’ right to vote in several states and the antislavery position of many of the Framers.

Supreme Injustice accomplishes its primary goal by exposing how each justice furthered the interests of slavery. It also introduces readers to freed persons, slaveholders, governors, kidnappers, and abolitionists to exemplify the human cost of Supreme Court rulings. General readers, college students, and professional historians will gain a deeper understanding of the Court and the crisis over slavery. Yet the book is not without shortcomings. Finkelman never fully explains how the justices, especially the slave owners, could have drawn antislavery conclusions from a proslavery Constitution. Additionally, conclusions about Story’s views of Virginians and his transformation from an antislavery to a proslavery position are less than satisfying. In the chapter dedicated to Story, Finkelman determines that Story’s nationalism and fears over disunion instigated the justice’s proslavery rulings after the Nullification Crisis of 1832–1833. However, in the book’s coda, Finkelman questions the validity of a similar interpretation offered by a leading biographer of Story. These flaws do not diminish the book’s contributions. Supreme Injustice is readable, well-documented, and amply researched scholarship that offers a fresh look at the nineteenth-century Supreme Court, with...