“Ask the Author” with James Simon: Part 1

For this edition of our “Ask the Author” series, we spoke with Professor James Simon about his new book, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers. Professor Simon is Martin Professor of Law and Dean Emeritus and at New York Law School.

The following is part 1 of the discussion; part 2 will be posted tomorrow.

First, if you could just briefly introduce the book to those who have not yet had the chance to read it. What prompted you to tell the parallel stories of Chief Justice Taney and President Lincoln?

The clashes between President Abraham Lincoln and Chief Justice Roger B. Taney over slavery, secession, and the president’s constitutional war powers went to the heart of Lincoln’s presidency. The story of their confrontations, I think, brings to life their passionate struggle during the worst crisis in the nation’s history, the Civil War. The issues that provoked that crisis – race, states’ rights, and the president’s wartime authority – resonate today in the nation’s political debate.

When discussing Chief Justice Taney, it’s difficult to start anywhere other than his Dred Scott opinion, which is the most notorious opinion in the Court’s history. In the book, you discuss how a much more moderate opinion by Justice Nelson was discarded in favor of Taney’s sweeping opinion striking down the Missouri Compromise that became the final word of the Court. Can you first talk about how this change happened? Moreover, counterfactually: would President Lincoln have become president without Taney’s sweeping opinion to rail against? What would the reaction to Nelson’s opinion have been had that one ultimately decided the case?

It is true that the Justices in their Dred Scott deliberations first agreed to have Justice Nelson write the opinion for the Court. But, according to a behind-the-scenes version provided by Justice Robert Grier of Pennsylvania, two dissenters, Justices Curtis and McLean, threatened to record vigorous dissents to Nelson’s narrow opinion concluding that Dred Scott remained a slave under Missouri law. Then, Justice Wayne of Georgia, made a motion to have Chief Justice Taney write a more sweeping Court opinion, which dealt with the broader issues of whether African Americans could be citizens of the United States who could sue in federal courts (his answer: no) and whether the Missouri Compromise prohibiting slavery in the territories above the southern boundary of Missouri was constitutional (his answer: no). Finally, Taney agreed with Nelson that Dred Scott remained a slave under the law of Missouri.

I think it is unlikely that Lincoln would have become president without the Dred Scott opinion. Lincoln, after all, was a frustrated Illinois politician in 1857, when Taney wrote the Dred Scott opinion. He had served one undistinguished term in the House of Representatives and had made one unsuccessful run for the U.S. Senate. Then came Dred Scott. Suddenly, Lincoln’s political career was energized. He challenged Senator Stephen A. Douglas for his seat in the Senate in 1858 and in the famous Lincoln-Douglas debates attacked Taney’s Dred Scott opinion and accused Douglas and Taney of being members of a national pro-slavery conspiracy. His attacks very nearly succeeded in unseating Douglas. But even with his narrow defeat, Lincoln was catapulted onto the national political stage, paving the way for his nomination as the Republican candidate for president in 1860 and his subsequent election.

I’m not sure that a narrow Nelson opinion would have avoided the Civil War. The political branches of the national government had been unable to resolve the conflict between North and South, and Taney’s opinion in Dred Scott certainly did not solve the problem. But I doubt that a narrow Nelson opinion would have produced different results. The issue of slavery was essentially political and could not be resolved by the Court. Taney’s opinion, however, did do terrible damage to the prestige and authority of the Court, which, after Dred Scott, was seen to be a partisan political institution.

You write: “In Dred Scott, Taney abandoned the careful, pragmatic approach to constitutional problems that had been the hallmark of his early judicial tenure in favor of a rigid march to his doctrinaire conclusions.” How do you believe a man of such apparent judicial temperament – in fact, one whom you say had handled the issue of slavery quite adroitly to that point – could go so wrong? In your extensive research, did you see any indications that he ever admit a mistake, or did he continue to defend Dred Scott’s holdings?

I think that Taney, along with other members of his majority in Dred Scott, believed that they could solve the issue of the constitutionality of slavery and, therefore, bring to a peaceful conclusion the conflict. But it was a terrible miscalculation. In his opinion, Taney abandoned the pragmatic judgment and wisdom that had characterized his previous tenure on the Court.

Nothing in Taney’s correspondence after his Dred Scott opinion suggests that he thought he made a mistake. To the contrary, he defended his opinion vigorously in private correspondence and attempted, later, to amend his original opinion to bolster his original argument (the other Justices did not allow his additions to be a part of the official Court opinion).

How did the relationship between Lincoln and Taney compare, in historic terms, with that of Jefferson and Marshall, about which you wrote an earlier book (What Kind of Nation)?

Lincoln and Taney bitterly disagreed on the most critical issues facing the nation in the mid-19th century. Jefferson and Marshall also disagreed over basic constitutional issues, as I wrote in my book, What Kind of Nation – issues of federalism and the independence of the federal judiciary. The issues that divided Lincoln and Taney divided the nation; the issues that divided Jefferson and Marshall were certainly as important in terms of our constitutional history but did not have the wrenching immediacy for the future of the nation that slavery, secession, and the president’s war powers did, as I write in Lincoln and Chief Justice Taney.