Volume 68 Issue 3 Dickinson Law Review - Volume 68, 1963-1964 3-1-1964 The Dissent in the Taney Court Paul Dolan Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Paul Dolan, The Dissent in the Taney Court, 68 DICK. L. REV. 281 (1964). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol68/iss3/3 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. THE DISSENT IN THE TANEY COURT BY PAUL DOLAN* Few subjects in American legal history have had such continued atten- tion of scholars as that of the role played by the Supreme Court of the United States under the chief-justiceship of Roger Brooke Taney in the fateful quarter-century preceding the Civil War. Foremost among these writers has been Dr, Carl Brent Swisher of the Johns Hopkins University who is the chief craftsman in developing the importance of the Taney Court as a factor in the evolvement of national policy. Swisher's treatment of that Court during the eventful middle years of American history stands as a monument in historical and political research.1 One of the many poignant suggestions for further inquiry into the work of the high federal bench, which Swisher made to a political science seminar at Hopkins, was the advisability of examining the dissenting opinion in the Taney Court. Accordingly, the present Article is a long delayed effort to follow that suggestion. In general, the analysis of dissenting opinions ap- pears useful in gaining further insight into the work of the judiciary; and, in particular, the examination of the dissent in the Taney Bench should be helpful in understanding the burden thrust upon the Supreme Court as it attempted to guide the destiny of a distraught and splintered people faced with the insuperable moral questions arising out of the slavery issue. PATTERN OF DISSENT On March 28, 1836, Roger Brooke Taney of Maryland was sworn in as the Chief Justice of the United States. His appointment to the Supreme Court was to begin a momentous period in the history of the Nation's high- est forum. On October 12, 1864, Chief Justice Taney passed away. Although he died in office, he had ceased to play an active role in his Court after 1863.2 There were 20 justices who served on the Taney Court. Davis and Field, 2 of the 20, were appointed after Taney had ceased being active in the work of the high bench. When Taney first came on the Court, its member- ship was 7; in 1837 it was raised to 9. At the very close of his tenure, the Court was increased briefly to 10. Only 1 of the Justices serving on the Court when Taney was appointed remained on the Bench longer than he. * Professor of Political Science, University of Delaware; B.S., 1933, University of Pennsylvania; M.A., 1936, University of Pennsylvania; Ph.D., 1950, Johns Hopkins University. This study was made possible by a grant from the Summer Fellowship Com- mittee of the University of Delaware. 1. See SwisHER, AMERICAN CONSTITUTIONAL DEVELOPMENT (2d ed. 1954) SWISHER, ROGER B. TANEY (1935). 2. Id. at 574-78. DICKINSON LAW REVIEW [Vol. 68 There were 3 others sitting with him who served almost as long as the Chief Justice. The mean tenure of the Justices on the Taney Court, excluding Davis and Field, was a little over 13 years. The total years of service of all the members was 242, and 7 Justices alone accounted for 137 years. These 7-Taney, McLean, McKinley, Wayne, Catron, Daniel, and Nelson-served 3 for more than 15 years each. TABLE I* THE JUSTICES OF THE TANEY COURT Appointed Name Term Party State By Joseph Story 1811-1845 R. 1lass. Madison Smith Thompson 1823-1843 R. .Y. Monroe John McLean 1829-1861 D. (R.) C)hio Jackson Henry Baldwin 1830-1844 D. F4a. Jackson James M. Wayne 1835-1867 D. C.a. Jackson Roger B. Taney 1835-1864 D. 1laryland Jackson Philip P. Barbour 1836-1841 D. N irginia Jackson John Catron 1837-1865 D. T ennessee Jackson John McKinley 1837-1852 D. <:entucky Van Buren Peter V. Daniel 1841-1860 D. Nrirginia Van Buren Samuel Nelson 1845-1872 D. I 'ew York Tyler Levi Woodbury 1845-1851 D. INlew Hampshire Polk Robert C. Grier 1846-1870 D. F a. Polk Benjamin Curtis 1851-1857 W. Nlass. Fillmore John A. Campbell 1853-1861 D. A labama Pierce Nathan Clifford 1858-1881 D. N4aine Buchanan Noah H. Swayne 1862-1881 R. C)hio Lincoln Samuel F. Miller 1862-1890 R. 1owa Lincoln David Davis 1862-1877 R. I]llinois Lincoln Stephen J. Field 1863-1897 D. California Lincoln * Source: SWISHER, ROGER B. TANE,Y 589 (1935). Although there is some evidence of general compatability among this group of 7 Justices (which may in part be attributable to the fact that 6 of them were appointed by either Jackson or Van Buren), the Taney Court is not noted for unanimity of opinion. In the twenty-six years of Taney's active chief-justiceship the Supreme Court was the center of controversies which rocked the country. Much of this conflict concerned the position of the states in the American governmental pattern. The Supreme Court faced its greatest challenge during these years in the important area of federal-state relations. Much of the difficulty in the federal arrangement arose from tie fact of slavery and the bearing it had upon American political theory. More significant to the development of constitutional law in the United States, how- ever, were the questions confronting the Court in such matters as the legal status of corporations, 4 state taxing power,5 state police power,0 admiralty 3. Id. at 589. See Table I infra. 4. Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839). 5. Passenger Cases, 48 U.S. (7 How.) 283 (1849). 6. New York v. Miln, 36 U.S. (11 Pet.) 109 (1837). 19641 TANEY-COURT DISSENT jurisdiction, 7 and control over interstate commerce.8 Of vital importance to the function of the Court itself were decisions involving separation of powers9 and the doctrine of judicial supremacy. 10 To a considerable extent the Supreme Court under Taney established the basis for the operation of the American federal system. Not all of its opinions are part of the law of the land today, but much of the jurisprudence of our federal system traces its origin to the work of Taney and his brethren. Taney's Court was largely concerned with "finding a workable adjustment of the theoretical distribution of authority between two governments for a single people."'" Of lasting significance to the development of federal-state relations was the rule handed down in Swift v. Tyson,12 in which the concept of a federal common law was developed. Even today, in spite of its over- turn in Erie R.R. v. Tompkins, 13 the effect of the earlier decision is still felt. The Eric decision has not been easy to follow, particularly if the state supreme courts have not declared the common law of their states in particular areas of litigation (by which declarations, under Erie, the federal courts are bound in diversity cases) or if the state supreme courts change their minds as to what the law of the state is. If the state courts have not spoken, then the federal courts have to search for the common law of the state, and one federal court could easily find differently from another in diversity cases involving the same state common law; yet, by overruling Tyson an attempt was made to develop uniformity of decision as far as the interpretation of state common law is concerned. The hope is that this interpretation will rest with the highest state court. Eric, however, has made it possible for litigants in diversity cases to shop around and find state courts favorable to their pleas. Diversity cases dealing with the same questions of law find different answers depending upon the state in which the suit is brought; hence, Erie has 4 not helped in reaching national uniformity, which was the goal in Tyson.1 Conoley v. Board of Wardens5 (the Pilot Case) still continues to help make the law of interstate commerce. New York v. Miln"' began the frame- work for the definition of state police power. In spite of these great accom- plishments, however, the Taney Court seemed continually beset by internal 7. The Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851). 8. Passenger Cases, 48 U.S. (7 How.) 283 (1849). 9. Kendall v. United States, 36 U.S. (11 Pet.) 524 (1838). 10. Ableman v. Booth, 62 U.S. (21 How.) 506 (1858). 11. FRANKFURTER, THE COMMERCE CLAUSE 73 (1937). 12. 41 U.S. (16 Pet.) 1 (1842), overruled, 304 U.S. 64 (1938). 13. 304 U.S. 64 (1938). 14. See Wells v. Sinionds Abrasive Co., 345 U.S. 514 (1953); PRITCIIETT, THE AMERICAN CONSTITUTION 126 (1959). 15. 53 U.S. (12 How.) 299 (1851). 16. 36 U.S. (11 Pet.) 109 (1837). DICKINSON LAW REVIEW [Vol. 68 conflict. Instead of this conflict diminishing as the Justices became better acquainted, it grew. With the intensification of moral attack by one section of the country upon the other as a result of the slavery question, the Court suffered deeply. The cleavage began in Prigg v.