Supreme Injustice: Slavery In The Nation’s Highest Court, by Paul Finkelman

Viewed in one way, this book is a valuable tonic to those works on the Supreme Court that largely whitewash and ignore the importance of slavery to Supreme Court decisions and justices with regards to the legal historiography of the period before the American Civil War. Positions like Dred Scott vs. Sandford are repeatedly considered to be at the top of lists of worst and most disastrous decisions by the Supreme Court, but this decision did not happen in a vacuum, and this book provides some worthwhile context to the larger body of legal jurisprudence at the highest level when it comes to the thorny question of slavery in Supreme Court cases. By and large, I found this book to be worthwhile, although it is certainly a flawed book, and for those who are looking to read this book as a balance to traditional biographies of Supreme Court justices in the period before the Civil War or to accounts of the Supreme Court that minimize or disregard the importance of slavery to the business of the court in the first four decades or so of the Supreme Court’s existence, this book is a useful tonic to such books. It is, however, not the best book to base one’s view of slavery in constitutional law on, however.

This book is a short one at just over 200 pages in length. The book only contains 5 chapters, and is focused on but three figures on the Supreme Court whose cases were been 1801 and 1864. The author, moreover, restricts his view to their casework relating to the issue of slavery. After a short introduction that gives the scope of the book, the first chapter of the book discusses the Antebellum Constitution and slavery (1). There were at least two consistent overarching views of the Constitution related to slavery, a proslavery Constitution that was generally supported by Southerners and at least tacitly accepted by Northerners who wished to appease the South, and an antislavery Constitution which ended up leading to the formation of the Republican Party and was enshrined in the postwar amendments of the Constitution that eventually ended slavery. This is followed by two chapters that deal with John Marshall, the influential Supreme Court chief justice between 1801 and his death in 1835, one which looks at John Marshall’s involvement in slavery and his consistent proslavery jurisprudence (2), and another on his decisions involving the African slave trade (3), where he repeatedly refused to take antislavery opportunities in the cases that were available to him. The author then turns his attention to the Northern and personally antislavery nationalist Joseph Story, whose jurisprudence nonetheless tended to bend towards appeasing the South (4) while he was on the high court. The last chapter of the book then discusses Roger Taney as slavery’s great chief justice, and points out that his defense of the slave interest often marked the only consistency in his opinions (5). The book ends with a brief coda, as well as notes, acknowledgements, an index of cases cited, and an index.

Despite the fact that this book is useful, there are at least a few flaws of this book that are worth pointing out. For one, this book is extremely repetitive. Although it is a short book already, it could have been made shorter had the author (or an editor) pared down the numerous repetitions of key statements. By the time we reach the end of the book we know that Taney had lived in a provincial and largely pro-slavery environment (even his choice of college, Dickenson College in Pennsylvania, was a common choice by border state Southerners like himself). We know that John Marshall, though possessed of a nationalist outlook broadened by his experience in the Continental Army and as a diplomat, was himself a large slaveowner who openly bought and sold slaves on the market, which naturally colored his view of slavery and the protections that he gave to that institution. We don’t need it repeated over and over again. Moreover, the book also fails in that it simultaneously blames Marshall, Story, and Taney of holding to a belief in the proslavery constitution and making judgments in favor of such a view while not supporting the antislavery constitution that was held by many people. There were plenty of reasons why nationalists like Marshall and Story (who is falsely characterized in this book as being pro-Jeffersonian) and Confederate sympathizers like Taney so consistently sought to appease Southern interests in the Supreme Court, but this book is not subtle enough to recognize that the limited concessions made to slavery in the Constitution and the more consistent concessions made in Supreme Court decisions were cut out of the same cloth, in that it was the recognition that national unity, if not honor, were best served by appeasing those who had the most to lose within the political community by the just and consistent application of the antislavery constitution that was increasingly being held by the North. This desire to achieve unity and to protect what was viewed as a vulnerable institution in slavery and somewhat bumptious Southerners who would be quick to rebel against the loss of their privileges and power was what made these decisions so unjust in the first place to blacks whose place within the body politic and whose interests were often just as consistently neglected during this period.