Breyer leads Dred Scott re-enactment

CAMBRIDGE, Mass. – A century and a half after the Supreme Court ruled in the Dred Scott decision that no black – slave or free – could ever become a U.S. citizen, the case’s legacy is still being debated.

The fallout from the 1857 decision, which helped spark the Civil War, was the subject of a mock re-hearing of the case before a 10-member court led by Supreme Court Justice Stephen Breyer at Harvard Law School on Saturday.

While the decision, issued by Chief Justice Roger B. Taney, is almost universally seen as the moral low point of the court’s history, participants in the mock hearing said the case still had a lot to say to the country 150 years later.

Former Whitewater prosecutor Kenneth Starr said the case has a lesson for judges. Besides being racist and morally bankrupt, the Dred Scott decision also reflected the arrogance of judges like Taney, who tried to elevate themselves over the U.S. Constitution, he said.

“This is an enduring lesson – this isn’t just a history lesson – for judges including of course justices of our Supreme Court to be humble, because Chief Justice Taney was anything but humble,” Starr said. “Quite apart from its immorality as a matter of natural justice and fairness, it also showed the arrogance on the part of the Supreme Court.”

In the ruling, Taney wrote that since the country’s founding, blacks had been “bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made.”

Even more troubling for many was Taney’s dismissal of the promise of the Constitution that “all men are created equal.”

“It is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration,” Taney, a former slave owner, wrote at the time.

Breyer said the case raises not just legal and ethical questions, but practical questions for justices involved in thorny moral cases.

“For me it immediately raises the question as a judge: How do you talk to other judges and persuade them about matters where you really think they’re going to do something quite wrong?” Breyer said. The decision is both a history lesson and a cautionary tale, according to John Payton, another lawyer participating in the mock hearing.

“It’s important for us to appreciate what we were in 1857 to better understand what we are today,” he said.