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

Once dismissed by historians as an abolitionist conspiracy theory, the "Slave Power" has reemerged onto the scene as a concept newly legitimate. A growing body of scholarship continues to demonstrate that proslavery southerners, aided and abetted by their northern allies, did in fact hold sway over multiple levels of the antebellum federal government. Paul Finkelman's persuasively argued study makes clear that the Supreme Court was no exception in this regard. Stemming from the Nathan I. Huggins Lectures that Finkelman delivered at Harvard University, Supreme Injustice turns to the careers of John Marshall, Joseph Story, and Roger Taney, the court's three leading justices before the Civil War. The book's concern is with laying bare the extent to which each of the three defended and promoted the institution of slavery.

Taken in sum, Finkelman's findings amount to an act of historical recovery. Against a long scholarly tradition of downplaying Marshall's ties to slavery, Finkelman uses census records and wills to compose a portrait of the chief justice as a major slaveholder. He also identifies a damning pattern in Marshall's slavery cases. "In every case where he wrote an opinion," Finkelman relates, "blacks were denied freedom and slave traders went unpunished" (90). Finkelman's account of Story brings more surprises, tracing how the associate justice, a native of Massachusetts, moved from denouncing slavery to deferring to the interests of slavery throughout his long tenure on the Supreme Court. This deference culminated, Finkelman suggests, with Story's 1842 ruling in Prigg v. Pennsylvania, which declared Pennsylvania's personal liberty law unconstitutional. Using evidence drawn from the justice's personal correspondence, Finkelman builds a compelling argument that Story was aiming with this ruling "to nationalize fugitive slave rendition" (166). Finkelman's discussion of Taney covers more familiar ground but still lends valuable insights. In particular, Finkelman establishes that Chief Justice Taney's infamous ruling in Dred Scott v. Sandford was but one example of his consistently proslavery and anti-black jurisprudence.

Finkelman's examination of this trio of justices adds an important new dimension to our understanding of the Constitution's relationship to slavery. Pivoting around the ongoing debate over whether or not the Constitution was itself a proslavery document—Finkelman submits that a proslavery interpretation is largely accurate—his inquiry shifts attention from the text of the Constitution to the proslavery uses to which that text was put by its privileged interpreters. Along the way, Finkelman resists the tendency in constitutional scholarship to seek out an overriding judicial philosophy that lends coherence to a justice's opinions, instead underlining how Marshall, Story, and Taney relied on inconsistent legal reasoning to defend slavery. The three justices thus emerge from Finkelman's account not as dispassionate umpires, appealing to their higher notions of jurisprudence to call constitutional balls and strikes. To the contrary, they appear as partisans manipulating the law in order to rig the game for slavery.

Finkelman further clarifies the justices' proslavery leanings by situating their opinions within the realm of their conceivable alternatives. While scrutinizing Marshall's refusal to rule in favor of African Americans' freedom claims, Finkelman points by way of contrast to a decision liberating an enslaved woman authored by William Tilghman, Pennsylvania's chief justice and a slaveholding and Federalist contemporary of Marshall's. Finkelman likewise contrasts Story's opinion in Prigg with John McLean's dissent, which argued that African Americans needed to be protected from kidnapping. By skillfully attending to roads not taken, Finkelman illuminates how antebellum judges could and did embrace a range of positions in slavery cases. Even in the context of their own times, Finkelman emphasizes, siding against slavery was for Marshall, Story, and Taney less an unthinkable than an unchosen option.

It is only when Finkelman indicts the justices for failing to make antislavery choices that questions begin to arise. In deciding an 1812 freedom suit, Finkelman asserts, Marshall "ought to...