SCOTUS and POTUS Playing a Most Dangerous Game
The last time I recall seeing SCOTUS justices conspire with a future president about lying to America about our Constitution, they cooked up a decision that was largely responsible for starting a Civil War and for perpetuating decades more of widespread violence and chaos against the victims of that decision. In 1857, seven SCOTUS justices conspired to issue their infamous decision in Dred Scott v. Sandford.
SCOTUS justices conspired to fabricate a false and dangerous constitutional loophole in a federal law (that permitted enslaved people to sue for their freedom in federal court). To do so, SCOTUS justices lied to Americans about our history and the meaning of our Constitution and federal law. Two dissenting opinions helped proved that Chief Justice Taney and his co-conspirators knew their lies were false. The majority decision and opinions ruined the credibility, not only of individual justices, but of SCOTUS as an institution for many years to come.
Overflowing with confidence, President Buchanan lacked the discretion even to keep confidential his conspiracy with SCOTUS justices. He broadcast it about as publicly as possible: “In his inaugural address two days before the decision, Buchanan” bizarrely boasted that the question (essentially, whether huge numbers of Americans could be horribly abused in miserable, life-long slavery) was “happily a matter of but little practical importance” that would be settled “speedily and finally” merely because a majority of SCOTUS justices said so.
Not only were the SCOTUS opinions pretending to justify the Dred Scott decision blatantly and viciously specious, but the timing of that decision was highly suspicious. The timing seemed tailored deviously to help Buchanan get elected. SCOTUS’s Dred Scott decision appears to have been delayed deliberately to ensure that American voters could not consider SCOTUS’s decision and opinions (about the most important issue of the day, which would decide the fates of absolutely all voters) before a presidential election.
SCOTUS irrefutably intentionally made its proceedings exceedingly protracted. For example, it ordered multiple oral arguments that were ten months apart. The case was first argued to SCOTUS in February 1856 (so it could have been decided before many elections that year). But then argument was ordered again and not scheduled until December 1856.
Two days after Buchanan was inaugurated in March 1857, imperious SCOTUS justices handed down a decision that should live in infamy. Americans should never forget that decision, how it happened or what it cost. It is dangerous to our liberty and our Constitution to, as Justice Frankfurter put it, “play make-believe” and “assume that men in gowns are angels.” Pennekamp v. State of Florida, 328 U.S. 331, 359 (1946) (Frankfurter, J., concurring).
The Founders knew better than to make that mistake. And not long after Dred Scott bore its dreadful fruit, SCOTUS justices said so. As addressed in a previous piece, in 1882, SCOTUS emphasized the following (as today’s SCOTUS justices have been reminded repeatedly):
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. [The law] is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.