Dred Scott and Legislating from the Bench.

The Legal Times blog notes that today is the 150th anniversary of the most-highly-reviled Dred Scott decision - the "match that ignited the civil war." I left a comment there, which I immediately regretted - to wit:

Chief Justice Taney reached a deplorable conclusion, but he did it based on a flawless understanding of the law as it stood, and of the meaning and intent of the Bill of Rights. The Justice wrote that blacks - free or slave - could not be citizens because:

"For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."

He was right - they would. Faced with decades of precedent, regardless of his personal opinion (and that of six other Justices) he didn't have a lot of choice (though he far overstepped what was legally necessary.)

But upon passage of the 13th and 14th Amendments after a bloody war over just who was and wasn't a citizen, the Supreme Court saw to it that those privileges and immunities remained restricted from blacks, and later, anyone else the majority felt necessary.

Say what you will about the decision, Chief Justice Taney declined to "legislate from the Bench" in 1857. Chief Justice Waite in 1875 took it upon himself to do that in U.S. v Cruikshank.

(Added emphasis - the LTB doesn't allow HTML).

That's what I wrote, but it is not precisely the case. Taney did indeed "legislate from the bench" - just not in a direction modern America would support, nor many of his contemporaries. As I did manage to note, the Chief Justice far overstepped what was legally necessary - or justifiable. And I should have noted that excess more explicitly in my comment. Mea culpa.

Taney was a product of his era, and, I believe it has been well proven, a great supporter of the institution of slavery at least in the latter part of his life. Given this, his decision was not surprising. But the point of my comment wasn't that Taney went too far - that's a given - it was that the main portion of the decision, the conclusion that blacks could not be given the "privileges and immunities of citizens," was pre-ordained by stare decisis. That to find any other way on that point would also have been to "legislate from the bench."

And here I'd like to argue once again that this is the purpose of having a Supreme Court. As I noted in Game Over, Man. Game Over, our legal system is constrained by the philosophy of stare decisis. As Mike from the now apparently defunct Feces Flinging Monkey put it:

(T)he future of our freedom ultimately rests with the court's willingness to periodically reexamine the law. Lawmakers, and law enforcers, will always push the limits, and they will always win occasional gains. If the court is unwilling to revisit these issues over time and correct the damage done, then it's "game over" no matter what we do. This makes it a little easier for me to accept changes in the law where the cost is low and the benefits are significant. If I can't count on an occasional review, then the game is already lost.

But we hardly ever get that review - "periodic" or otherwise. In my piece But it has to be a heap, now, I quoted Webster's definition of stare decisis:

(A) doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice

And I quoted extensively from Julian Fisher's Reason Online essay A Heap of Precedents: Slippery slopes, stare decisis, and popular opinion. Sanchez makes essentially the same argument:

There's a famous philosophical puzzle, originally attributed to Eubulides of Miletus, known as the sorites paradox or heaps problem. It goes like this: Two or three grains of sand obviously don't constitute a "heap" of sand. And it seems absurd to suppose that adding a single grain of sand could turn something that wasn't a heap into a heap. But apply that logic repeatedly as you add one grain after another, and you're pushed to the equally absurd conclusion that 100,000 grains aren't a heap either. (Alternatively, you can run the logic in the other direction and prove that three grains of sand are a heap.)

It's not a terribly deep puzzle, of course: It simply illustrates that some of our everyday concepts, like that of a heap, are vague or fuzzy, not susceptible to such precise definition. Try to define such concepts in too much detail and absurdity results.

The problem is, concepts like "interstate commerce," "public use," "unreasonable search," and "cruel and unusual" are similarly fuzzy. And stare decisis, the principle that cases are to be decided by reference to previous rulings, means that the Court's interpretation of those rulings looks an awful lot like a process of adding one grain at a time without ever arriving at an unconstitutional heap—an instance of what law professor Eugene Volokh has called an "attitude altering slippery slope." Jurisprudence is all about distinguishing cases, explaining why some legal principle applies in situation A, but not in apparently similar situation B. But if the grains are fine enough—the differences from case to case sufficiently subtle—plausible distinctions become harder to find.

Sanchez concludes his piece:

Stare decisis is an important guarantor of stability in legal rules: By insisting on like treatment of like cases, it provides people with a more detailed sense of when they're engaged in constitutionally protected conduct than the stripped-down language of the Constitution alone ever could. But legal rules, to be legitimate, should also reflect a shared public understanding. That's not to say the polls must vindicate each particular court ruling. But when stability begins to undermine the public's sense that they understand the most fundamental rules by which they're governed, it's a sign that jurists need to be willing to step back and see the heap.

I concluded Game Over, Man thus:

Mike Spenis said "the future of our freedom ultimately rests with the court's willingness to periodically reexamine the law," but the evidence is plain that the courts will not do that. They will use obviously flawed precedent so long as it "comports especially well with our notions of good social policy." And even if it doesn't, the courts will often bow, as Kozinski does here, to precedent they abhor. We depend upon the honor and intellectual honesty of the judges who make up the Justice system, yet it seems that those who are truly honest and honorable are outnumbered by those who are "willing to bury language that is incontrovertibly there." The honest and honorable ones abide, under the rule of law, by precedent that is otherwise insupportable. The middling honest ones, the ones Justice Brandeis labled as "men of zeal, well-meaning but without understanding" "build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text." And those decisions stand, without review, periodic or otherwise, to serve as the next step down the road to Hell.

So "legislating from the bench" has its place, but what is that place?

Sanchez says it's "when stability begins to undermine the public's sense that they understand the most fundamental rules by which they're governed." Mike says it's when enough damage has been done by the forces that constantly push the limits of what's legal. In other words, it's a judgement call. Like it or not, that power has been placed in the hands of nine un-elected judges.

No one (today) objects to the Supreme Court's Brown v. Board of Education decision overturning decades of "separate but equal" precedent, but that was clearly "legislating from the bench." Great howls of outrage and peals of glee resulted from Roe v. Wade, but that too was "legislating from the bench" as defined as violating stare decisis.

So when is "legislating from the bench" valid, and when not?

I would argue that two conditions must be met. First, it can and should only be done by the Supreme Court. To bestow that power on lower courts invites, if not anarchy, then disrespect for law by the citizenry. Second, any decision that violates stare decisis must be done in order to broaden individual rights and freedoms - the "privileges and immunities" of citizens - that have been improperly restricted by decades of grain-upon-grain infringement.

Someone has to have the power to say "That's a heap," and knock it down.

In Dred Scott the court was in a position to say that nearly a hundred years of law was wrong, because it denied "the privileges and immunities" of citizens to free blacks, but it did not. Instead the decision (like slavery itself) "contravene(d) the ordinary principles of justice." Brown v Board of Education restored some of those principles. Roe established a set of rules that I think straddled the dichotomy between the rights of women and the rights of the fetus, but the Doe v Bolton decision - handed down at the same time and almost never mentioned - destroyed those rules, and contravened the principles of justice.

The problem is, this method is messy. Stare decisis is neat and simple. Good decisions do get made, but even good decisions can have bad unintended consequences. It's a positive feedback loop in which a little garbage in creates ever greater garbage out. There is no established mechanism for "periodically reexamining the law," and that is a major flaw in the system.

Dred Scott was an understandable decision given the era and the then "shared public understanding" - but the end result was war. Had the Supreme Court of that time been made up of radicals and overturned slavery that decision would have almost definitely also resulted in war. Was there some middle ground that would have satisfied both sides? In my opinion, no. But if you are going to make a decision upon which the rights of citizens depends, I'd prefer it if the Supreme Court of the land decided in favor of expanding those rights, rather than restricting them even further. We depend on those nine un-elected judges to protect our liberty against infringement by ever-encroaching government power.

How do you think they're doing?