Ann Arbor (Informed Comment) – Associate Justice Stephen Breyer announced on Wednesday that he would retire this summer at the end of the present term of the Supreme Court.
Biden made a campaign promise to nominate an African-American woman to the court, and Democrats expect him to follow through. Arguably, Biden would not be president without the African-American vote, which allowed him to win the Democratic primaries in 2020. South Carolina was Bernie Sanders’ Waterloo, when it became clear that African-American voters overwhelmingly favored the centrist Biden.
Having an African-American woman justice is long overdue, and would be historic.
Let us consider the history of the court that this African-American woman would be joining, and that time it ruled that African-American women by virtue of their race could not be American citizens or have any legal rights at the federal level at all.
Although we all learn about the 1857 Dred Scott decision in school, we aren’t usually told that it actually should be called the Harriet and Dred Scott decision, since Scott’s wife was also a plaintiff in the suit. History.com explains that Dred Scott had been enslaved by Dr. John Emerson. Emerson then moved with Scott first to Illinois and then to the Wisconsin territory, where slavery was not allowed, but where Emerson nevertheless kept Scott in bondage. In Wisconsin he allowed Scott to marry Harriet Robinson in a civil ceremony, having arranged to buy her (what a creepy phrase). Dr. Emerson traveled with them some more and died in Iowa. He had by that time acquired a wife, Irene.
Harriet Robinson Scott. Courtesy Library of Congress.
The two enslaved persons were inherited by Irene Emerson like so many sticks of furniture, and despite their pleas, Irene refused to free them. She returned with them to St. Louis. Dred and Harriet then sued her, with the help of abolitionists and church groups, because of a Missouri law saying that if an enslaved person was taken to a free state, that individual could not thereafter be re-enslaved. Missouri also allowed free Blacks to sue in state courts. They won in a lower level court in 1850, then in 1852 the Missouri Supreme Court combined Dred’s and Harriet’s separate lawsuits into one and then ruled against them. They and their abolitionist backers took the case to the federal courts and ultimately to the US Supreme Court, which in 1857 ruled against them. Harriet was devastated, according to this capsule biography of her.
Ironically, the Scotts were manumitted anyway by yet another owner (what an ugly word) three months after the decision.
In his opinion, Chief Justice Roger Taney said that members of the “Negro race” were not U.S. citizens and that they had no federal rights at all that white men were bound to respect, including the right to sue in federal court. He actually spoke of whites as the “citizen race” to the exclusion of “Negroes” and “Indians,” who were not eligible (unlike white immigrants from Europe) for naturalization.
So President Biden’s nominee will be joining a court that once upon a time denied that Harriet Robinson Scott was or could be a citizen or had any human or civil rights at all. Harriet lived to see the Emancipation Proclamation and the Fourteenth Amendment, which bestowed citizenship on everyone born in the US.
Only people who privately still believe in the exclusive privileges of the white “citizen race” will complain about having an African-American woman on the Supreme Court, in an epochal slap in the face to moral monsters like Chief Justice Taney.