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Yet Again, A Judicial Counterrevolution Looks To Chain The Country To An Imagined Past


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The court’s infamous Dred Scott decision and Justice Samuel Alito’s leaked opinion share many similarities, including bunk history and a desire to forestall the future.

Paul Blumenthal

May. 5, 2022, 02:55 PM EDT

At his presidential inaugural on March 4, 1857, President James Buchanan, a Northern Democrat aligned with the South’s slavers, took to the steps of the Capitol and preemptively announced the result of an as-yet-unreleased Supreme Court decision that would give a “settlement of the question of domestic Slavery in the Territories.”

Two days later, Chief Justice Roger Taney read his majority opinion in the case of Dred Scott v. Sanford. Black people, Taney wrote, are to be “regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”

The pro-slavery court majority leaked the outcome of the case to Buchanan months earlier. They wanted his help in securing the vote of Justice Robert Grier, a Pennsylvanian like Buchanan, for Taney’s decision. As a Northerner, Grier could give the decision a patina of national support, as opposed to coming from an all-Southern bloc. Grier, a supporter of slavery, happily complied.


Like the court in Dred Scott, today’s robed counterrevolutionaries reveal themselves and the court as nakedly political and partisan actors. The court has always been a political entity, but it seeks to mask this nature with a mythology hiding its political nature in legal theories, citations to precedent and popular conceptions of the rule of law. It occasionally bares its political teeth to the public in cases like Dred Scott. And now it’s doing the same in this leaked draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey.

Alito’s draft opinion carries with it key features of the Dred Scott decision. It features nasty language demeaning the subject of the opinion and relies on an inaccurate history of law and precedent to justify the political goal he wishes to achieve.

Taney’s Dred Scott opinion drips with contempt for anyone who could possibly think that Black people could be citizens of the United States or that anyone in the Founding generation would approve of such belief. Taney argued that the United States, as a nation formed for the benefit of the white man, is both originally and fundamentally racist towards Black people. This racism was inborn from English law, belief and custom. And it was, therefore, ineradicable.


It is not known why Alito’s draft opinion was leaked at this time, or by whom, just as no one knew the true story of how Buchanan knew about the Dred Scott decision until the next century. This decision may not even be the final decision handed down by the court. Even if it is not the final decision, it reveals that five justices are willing to sign their names to a shoddy rollback of rights with no basis in history or law.

After 50 years seeking all encompassing power, the conservative legal movement has reached its apotheosis. It climbed the mountaintop after Donald Trump won the 2016 presidential election despite losing the popular vote by nearly three million votes. He then became the first president since Ronald Reagan to appoint three justices to the court, thanks in part to Sen. Mitch McConnell’s (R-Ky.) refusal to hold a hearing on President Barack Obama’s nominee Merrick Garland in 2016 and Justice Ruth Bader Ginsburg’s refusal to retire and have Obama appoint her replacement.

The court’s six-vote conservative supermajority, founded on the anti-majoritarian pillars of the Senate and the Electoral College, can now go about finishing the agenda that conservative presidents going back to Ronald Reagan could not do through legislation or executive action.



Top Comments

"One gets the distinct impression, from this and other controversial cases and issues, that there is little to no jurisprudence to be found in politically conservative jurisprudence."

"Who needs jurisprudence when you’ve got originalism and dogma."

"I never understood the so called "originalists" as if nothing changes!! The founders gave us these things called "amendments"!! Do they not understand the word amendment literally means CHANGE!!"

"You are correct, but not the way you think. There is a process to amend the Constitution. Roe v Wade did not do that."

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