The death of Ruth Bader Ginsburg, just six weeks before a presidential election, is a scenario out of nightmares. But in many ways, it only dramatizes a fundamental problem that has faced the country for years: the likelihood that the Supreme Court, dominated by extremely conservative justices for decades to come, will act as the far right’s major bulwark against democratic reform.
Faced with this prospect — and stung by the ruthlessness with which leading Republicans have pursued it — many liberals have come to support major judicial reforms, most of them modeled on Franklin D. Roosevelt’s plan to expand the court in the 1930s. Yet in some ways, the emphasis on FDR’s “court-packing” idea obscures a historical moment when progressives mounted an even more radical challenge to judicial supremacy: the antislavery struggle of the Civil War era.
In 1857 a Southern-majority Supreme Court ruled in Dred Scott v. Sandford that Scott had no legal right to bring suit in federal court — that, in Chief Justice Roger Taney’s famous words, colonial and US history showed that black Americans “had no rights which the white man was bound to respect.”
Equally inflammatory was the court’s ruling that Congress had no constitutional right to ban slave property in the federal territories. This decision outlawed the national platform of the antislavery Republican Party, which was premised on blocking slavery’s expansion to the West.
Slaveholders and their allies — including Democratic President James Buchanan and the overwhelmingly Democratic US Senate — embraced the decision as a final settlement of the slavery question. Taney had proclaimed Dred Scott “the law of the land,” and the ruling party in government agreed with him.
Abolitionists like Frederick Douglass, meanwhile, condemned the decision as the “judicial incarnation of wolfishness.” Yet they knew the problem of proslavery jurisprudence could not be solved by antislavery jurisprudence alone. “We can appeal from this hell-black judgment of the Supreme Court,” said Douglass, “to the court of common sense and common humanity.” The remedy for Dred Scott did not reside in a lawyer’s plea or a judge’s opinion, but in mass political struggle.
For the Republican Party, that struggle meant declaring political war on the idea of an all-powerful judiciary. After 1857 Republicans responded to Dred Scott, as the historian David Potter wrote, not with “an attack on the decision,” but “an attack on the court.”