Book Wi2005 Composite.Qxd

Louis H. Pollak Race, law & history: the Supreme Court from “Dred Scott” to “Grutter v. Bollinger” I start from two points of departure: that drawing district lines with an eye to The ½rst I draw from the contrasting voters’ political af½liations was permis- contentions of counsel in a redistricting sible. But race was different, Lewin ar- case argued in the Supreme Court in gued: “We think politics is part of the 1976.1 The case addressed the validity political process. Race is not part of the of a 1974 New York statute that redrew political process. Race is an impermissi- state senate and assembly districts in ble standard.”2 Brooklyn with a view to enlarging the The very able lawyer representing the number of districts with “substantial United States, Solicitor General Robert nonwhite majorities.” The attorney Bork, responded: “I was astounded general of the United States, exercising when Mr. Lewin said that race is not a a supervisory authority vested in him part of our political process. Race has by the Voting Rights Act of 1965, had been the political issue in this nation assented to the statute. In the Supreme since it was founded.”3 Court, Nathan Lewin, the very able at- My second point of departure relates torney for the white petitioners chal- to W. E. H. Lecky, the Dublin-born lenging the statute, argued that drawing scholar whose works ornamented Brit- district lines with race in mind was un- ish historiography in the second half of constitutional. In response to a question from the bench, Lewin acknowledged 1 This essay, delivered as the 2004 Robert P. Anderson Lecture at Yale Law School in April of 2004, was written in tribute to Charles Ham- Louis H. Pollak, a Fellow of the American Acade- ilton Houston, William Henry Hastie, and my since 1972 and former dean of the Yale and Thurgood Marshall. I am indebted to two good friends–Frank Goodman and Victor Brudney– University of Pennsylvania Law Schools, has been who reviewed this essay in draft and offered a federal judge in Philadelphia since 1978. He was valuable criticisms and suggestions that have one of the cohort of young lawyers who assisted measurably strengthened the ½nal product. Thurgood Marshall and his colleagues of the naacp Legal Defense Fund in developing the 2 United Jewish Organizations of Williamsburg, Inc. v. Carey, No. 75-104 (U.S. Sup. Ct., October legal strategy in “Brown v. Board of Education” 6, 1976), transcript of argument, 33. and “Bolling v. Sharpe.” 3 Ibid., 62. I note, by way of full disclosure, © 2005 by the American Academy of Arts that, representing the naacp as an intervenor, & Sciences I too participated in the argument. Dædalus Winter 2005 29 Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/0011526053124488 by guest on 03 October 2021 Louis H. the nineteenth century. Lecky, so we are preme Court’s work has suffered be- Pollak told, was invited to one of those vast ma- cause persons in positions of apparent or on race norial weekends in which, even as late as actual of½cial authority have skewed the the Gladstone and Salisbury eras, the adversarial process, inappropriately urg- great aristocratic houses were wont to ing the Court to decide what need not spread themselves. Lecky was unac- and should not have been decided, or quainted with his hostess, the duchess supplying the Court with grievously in- of something-or-other, but at dinner he complete, and hence slanted, informa- nevertheless found himself seated to her tion. left. After Her Grace had exhausted con- In its proper decisions about race, on versation with the guest seated to her the other hand, the Court appears to right, she turned to Lecky: have been aware of the relevant history, has neither departed from nor embel- “Oh, Professor Lecky, you must remind lished it, and has, on occasion, made it me. What is it you do?” a building block in those decisions. “Well, Your Grace, I’m a historian.” “Goodness, Professor Lecky, that is too bad.” I begin, as one would expect, with Dred “I beg your pardon, Your Grace, but I’m Scott. not sure that I understand. Why is it too In Dred Scott, it will be recalled, the bad that I’m a historian?” Supreme Court, in the early months of “Well, Professor Lecky, I do think that 1857, was charged to determine the sta- it’s so much better to let bygones be tus of a slave taken by his army-surgeon bygones.” master from the slave state of Missouri to military posts in the free state of Illi- nois and in federal territory where, un- Perhaps some bygones can be left, like der the Missouri Compromise of 1820, cuttings from the garden, to be raked slavery was forbidden. Dred Scott had into small heaps, gathered, and wheel- sued to gain freedom in the federal cir- barrowed to the compost pile. But not cuit court in Missouri, but that court had the bygones of race. Not in America. ruled against him. The circuit court’s Not yet. adverse decision was based on two facts: Particularly, I suggest, this is of impor- the Missouri Supreme Court, applying tance for those who labor in the vine- Missouri law, had ruled against Scott in a yards of the law. From our nation’s be- nearly identical state court suit; and the ginnings, the ways in which we treat United States Supreme Court had ruled persons of color have been the knotti- some years before that in suits to gain est–the hardest to unravel–of the long freedom the law of the state in which threads that make up the law’s fabric. suit was brought was dispositive. Part of my submission in this essay is Accordingly, it appeared that Scott’s that the law’s most flagrant failures– appeal to the United States Supreme those instances in which our highest Court from the adverse decision of the court has most dismally misused its au- federal circuit court would be fruitless, thority–have been characterized by fla- and, furthermore, that the Court would grant judicial misreadings of our history. have no occasion to announce any new On some occasions these misreadings and signi½cant legal principles. have been bolstered by the myopia of ra- But a funny thing happened on the cial prejudice. Also, on occasion, the Su- way to the courthouse. In February of 30 Dædalus Winter 2005 Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/0011526053124488 by guest on 03 October 2021 1857, two months after the second argu- to Taney, not only slaves but also free The ment (the case had been argued in April blacks could never be a part of the Amer- Supreme Court from of 1856 and reargued in December), ican political community. They were for- “Dred Scott” James Buchanan, the South-leaning ever to be outsiders because the thirteen to “Grutter Pennsylvania Democrat who had just states that agreed to the Constitution v. Bollinger” been elected president and was to take would never have “regarded . as fellow- of½ce in less than a month, wrote to two citizens and members of the sovereignty, of his friends on the Court–Justices Cat- a class of beings whom they had thus ron and Grier–intimating that it might stigmatized.”5 In making his demon- be helpful if the Court were to resolve stration, Taney took particular note that the most important issue on the national Chief Justice David Daggett of Connecti- political agenda: the scope of congres- cut (who, it deserves mention, was one sional authority to regulate slavery in the of the three founders of the Yale Law territories.4 That political issue could be School) had ruled in 1834 that blacks treated by the Court as a legal issue be- were not part of the political communi- cause counsel for Dred Scott’s putative ty. “God forbid that I should add to the owner had argued that the Missouri degradation of this race of men,” Dag- Compromise was unconstitutional. gett had instructed a Connecticut jury, Buchanan’s improvident intervention “but I am bound, by my duty . to say in the judicial process was the curtain- that they are not citizens.”6 raiser for what were to be four of the Justice Curtis, one of two dissenting worst years in the annals of the presi- justices, made patient demonstration dency. And it was also the curtain-raiser that Taney was quite wrong in asserting for the worst decision in the annals of that free blacks were without political the Court. For the justices obligingly rights when the Constitution was adopt- changed course. Rather than disposing ed. When the Articles of Confederation of Dred Scott’s appeal with a brief reit- were rati½ed, Curtis noted, “all free eration of principles of no novelty, the native-born inhabitants of the States of Court, speaking through Chief Justice New Hampshire, Massachusetts, New Taney on March 6, 1857, two days after York, New Jersey, and North Carolina, Buchanan’s inauguration, announced though descended from African slaves, that Congress had no authority to regu- were not only citizens of those States, late slavery in the territories–thereby but such of them as had the other neces- discarding a regular pattern of nation- sary quali½cations possessed the fran- al legislative action dating back to the chise of electors, on equal terms with Northwest Ordinance, enacted in the other citizens.” Curtis quoted Article very summer and the very city in which IV of the Articles of Confederation (the the Constitution was written.

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