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Hannah McCarthy:
This is civics one on one. I'm Hannah Mccarthy.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
Jay. Today we have got a special two part episode for you about the Supreme Court and civil rights that aired as a broadcast special on NPR stations around the country. First, we are going to give a truly 101 explanation about how the judicial branch works, its powers, its checks, what it can do and what it cannot do.

Nick Capodice:
And then we will dive into a case that many historians have referred to as the worst Supreme Court decision in US history. Dred Scott. V Sanford. Now, Hannah, there is a lot of vocabulary headed our listeners way in the first part of this episode, but hopefully everyone's going to come out of the other side. Understanding the definition of Judicial review. Search three or four short circuit courts and circuit court splits. And also, listeners are going to learn about one of my favorites. Here comes favorite decisions of all time, the one that started it all. Marbury v Madison, 1803. This case has everything. Hannah. Judicial Commissions. Angry John Adams. Midnight Judges.

Hannah McCarthy:
You sound like Bill Hader's Stefon character on SNL. Does this case have Dan Curtis?

Nick Capodice:
Sadly, there's no Dan Curtis in Marbury v Madison.

Hannah McCarthy:
All right, let's do it. Civics one on one style with a breakdown of the judicial branch.

Nick Capodice:
You got it. This Lieutenant White came.

Archival Audio:
And showed a piece of paper. And Mrs. Map demanded to see the paper and to read it, see what it was.

Archival Audio:
The first plaintiff was Jane Rowe, an unmarried.

Archival Audio:
Pregnant girl who had sought an abortion in the.

Archival Audio:
State of Texas. You can order you to salute the flag. We can order you to do all these advances to the flag. Can we order you not to do something to show something about the flag?

Archival Audio:
I see that my white light is on, so if there are no further questions, I would save my further time for rebuttal. Thank you, Mr. Fielding. You have no further time. We'll hear now from you, Mr. Robbins.

Archival Audio:
Do you remember this moment?

Archival Audio:
Yeah. Mr. Chief Justice. And may it. Please the Court. I'd like to. Begin my remarks by addressing the questions regarding deception.

Larry Robbins:
Yes. So is that. That's actually from. Must be from Colorado against spring. Yeah. You know, I. I didn't realize that that one was recorded. I don't know that I've ever heard it.

Nick Capodice:
This is Larry Robbins. He runs a private law practice now, but for years, he worked in the office of the solicitor general. That's the office responsible for arguing on behalf of the United States in the Supreme Court. I called him up because I wanted to know what it's like to stand there alone under the eyes of Rehnquist, O'Connor, Ginsburg, Marshall.

Larry Robbins:
What's remarkable, or it was to me anyway, the first time I stood up at the lectern is how close to you the justices are. I always I guess I always analogize it to sitting in a living room with nine very smart people who have thought about the same problem that you have and want to ask you some questions about it and your job is to answer them. That's how it felt to me. And I've done it 18 times and it always feels like that.

Nick Capodice:
While I studied acting in college on a whim, I took this one class on the First Amendment where the only texts we were assigned were Supreme Court opinions. And thereafter I took every single course that professor taught. And I've just carried a torch for the third branch ever since. Hannah, what would you say if I told you that the judicial branch is, quote, beyond comparison, the weakest of the three departments of power? That it's next to nothing?

Hannah McCarthy:
I'd say you were terribly misinformed.

Nick Capodice:
I know, but that was a direct quote from Federalist 78 by Alexander Hamilton, because initially the Supreme Court did not have that much power. But there was a night. Then everything changed.

Hannah McCarthy:
Lay it on me.

Nick Capodice:
You're going to love it.

Nick Capodice:
I'm standing up. The presidential election of 1800. The two major political parties, the Federalists and the Democratic Republicans. Thomas Jefferson. The Democratic Republican beats the incumbent Federalist. John Adams. 76 electoral votes to 65. And Adams becomes what they call a lame duck president. He's just sitting around until Jefferson is sworn in on March 4th. It's like spring of your senior year, right? But Adams and his Federalist Congress, they don't just sit there. They go to work in the lame duck session. They pass this law called the Judiciary Act of 1801. And it's a new version of the Judiciary Act of 1789. I promise this is important, which creates a ton of new courts in the United States. And Adams uses his executive power of appointment and just packs those courts full of federalist judges. The very night before Jefferson comes to the White House, they have appointed 16 circuit judges and 42 justices of the peace. These were called the midnight judges. Got all their albums. So you get a judge commission and you get a judge commission. Adams Secretary of State John Marshall, he's just running around frantically trying to give out these judgeships. And some of them didn't get delivered at time. Jefferson is sworn in, and one story goes that he sees all of these judge commissions on the table and says, oh, no, you don't. And he maybe throws them all in a fire. One of those potential judges, William Marbury, sitting by the phone with a ham sandwich waiting for his commission to arrive. He goes to the Supreme Court to sue Jefferson's new secretary of state, James Madison, and he says, Hey, I was promised this judgeship. I didn't get it. He's furious. And the chief justice of the Supreme Court is John Marshall.

Hannah McCarthy:
Hold on. Hold on a second. John Marshall was Adams secretary of state, the guy delivering all those commissions?

Nick Capodice:
Yes. And the chief justice, John Adams, was like, all right, my terms ending. Can you just do both jobs until Jefferson comes to office? So William Marbury, he thinks he's got this one in the bag. He's asking the court to issue what's called a writ of mandamus, which is where the court orders the executive branch to do something to give him that judgeship. And Justice Marshall, stunning. Everyone says, I'm sorry, Bill, I can't do that because that 1789 Judiciary Act was unconstitutional and we the Supreme Court, we have a job to do. And it is not to make people do things. Our job is to say whether or not something is constitutional. That case, Marbury versus Madison establishes judicial review.

Hannah McCarthy:
All right. I was wondering where you were going with that story, but this is pretty significant. A branch giving itself a major power. Maybe the most major power.

Nick Capodice:
Yeah. And apparently it kind of flew under the radar at the time.

Kathryn DePalo:
Now, a lot of people make a big deal about Marbury versus Madison today.

Nick Capodice:
This is Kathryn DePalo. She's a political science professor at Florida International University.

Kathryn DePalo:
But at the time, it kind of came and went with a whimper, right? Because nobody really said, oh, gosh, now this gives the US Supreme Court all this power of judicial review to declare something unconstitutional. You know, the courts were kind of an afterthought. They weren't really thought as, as, you know, as equal as Congress and the presidency, at least in people's minds, You know, and the Capitol building. They met in the basement.

Hannah McCarthy:
The Supreme Court used to meet in a basement.

Nick Capodice:
Yes. Kathryn told me that after Marbury versus Madison, the court didn't rule something unconstitutional again until 1857, the infamous Dred Scott decision, where the court ruled that an enslaved person was not a citizen and had no rights. The Supreme Court didn't really kick into its modern, more powerful iteration until the 20th century.

Hannah McCarthy:
So if they weren't declaring laws constitutional or not, what were they doing? What are their constitutional powers?

Nick Capodice:
The Constitution establishes the Supreme Court and it lays out that justices are appointed by the president with the Senate's approval. But it doesn't say how many justices there should be, though it does specify a chief justice. Originally, there weren't nine justices. There were five in the 1800s, and the number increased over the years via acts of Congress, cementing it at nine justices in 1869. It's left to the Congress to decide how the lower courts would be set up.

Kathryn DePalo:
There are some specific things that the US Supreme Court is tasked with doing.

Nick Capodice:
One of those is settling disputes between the states.

Kathryn DePalo:
So if New York wants to sue New Jersey over a particular matter, the Supreme Court is there to settle some of those disputes. Other things involve cases involving ambassadors and these particular things. But but but it's so vague. And really, the Supreme Court is not used as a trial court much anymore.

Nick Capodice:
The Supreme Court is what's called an appellate court, which means that it hears appeals. It's not like a trial court. There's no jury. So if someone loses a case in another court, they think it's not fair. They can appeal it up the chain.

Hannah McCarthy:
Appellate appeal. Yeah. How do cases get to that level where they're ruled upon by the highest court in the land?

Nick Capodice:
Here's Larry Robbins again.

Larry Robbins:
The Supreme Court, to my knowledge, is the only federal court and one of the few kinds of appellate courts that you have no inherent right to be heard in front of. All, you have to ask their permission and they grant it only very rarely.

Nick Capodice:
It's a long process and as Larry says, it's super rare, but it helps illustrate the entire federal court system instead of just those nine justices at the top. First off, Hannah, most trials in the U.S. are going to be in your state court. You stole a car. You got a divorce. You jump to subway turnstile. State court. Federal courts are for when your case deals with the constitutionality of a law or if the United States is a party in the case or if you broke a federal law. Currently, there are 94 federal trial courts, and those are divvied up into 13 circuits, kind of like the NCAA.

Hannah McCarthy:
So it's like the West Coast is one circuit.

Nick Capodice:
Right there, the Ninth Circuit.

Hannah McCarthy:
What circuit are we in?

Nick Capodice:
We in New Hampshire are part of the First Circuit, which also includes Maine, Rhode Island, Massachusetts and Puerto Rico, interestingly enough. Yeah. So if you lose a case in one of those 94 federal courts, you can appeal it to your circuit court. And a court of appeals trial has no jury. It's lawyers arguing in front of a panel of three judges.

Hannah McCarthy:
And if you lose that appeal, what happens then?

Nick Capodice:
We are on the road to getting your case into the Supreme Court.

Larry Robbins:
A case begins with an application to the Supreme Court to hear the case. This has a very fancy name with some with a Latin component because lawyers like to sound as obscure as possible. So it's called a petition for a writ of certiorari.

Hannah McCarthy:
Petition for a writ of certiorari.

Larry Robbins:
What's called a cert petition for short. And what what a cert petition does is it says to the Supreme Court, you should hear my case.

Nick Capodice:
And like Larry said, the Supreme Court does not have to do it.

Larry Robbins:
The vast, vast majority bordering on 98 or 99% are denied.

Nick Capodice:
If four of the nine Supreme Court justices agree to hear a case, then it will get a hearing in the Supreme Court. And only about 100 of the nearly 7000 cert petitions are granted.

Hannah McCarthy:
Are there any types of cases that tend to be granted more than others?

Nick Capodice:
Yes, and Larry had some tips on that.

Larry Robbins:
The most important thing you can say to get the Supreme Court interested in granting your case is that there is a question of federal law because the Supreme Court is there to decide federal questions, not state law questions, but federal questions, either questions about federal statutes or the United States Constitution. And what you want to tell the court is, look, there is an important federal question that the courts of appeals, the lower federal courts, disagree about.

Nick Capodice:
There's hundreds of publications and websites out there that track these circuit splits where two circuit courts are divided on an issue.

Larry Robbins:
Even better, if you can say there are three circuits on one side of the question and four on the other side of the question so that, you know, the issue has been widely considered. The question has percolated in the courts of appeals, if you will. That's a. A Supreme Court lawyer's term of art.

Hannah McCarthy:
I have a question. Yeah, go ahead. So the Supreme Court, a seemingly passive political body, does have some political power because they can decide what cases they want to hear or not. And presidents campaign on what kind of Supreme Court justice they'll appoint. But if a justice wanted to pass, say, a controversial ruling, they can't bring it up themselves, can they?

Nick Capodice:
Know they cannot.

Kathryn DePalo:
We talk a lot about how much power the court has, and I think some of the power of the court, particularly the US Supreme Court, has significant power in shaping a policy agenda. You know, if there's a ruling that they make, all of a sudden everybody's talking about it. And you point to Roe v Wade in 1973 and we're still talking about that. It separates our political parties and our system. That's that's power. That's setting an agenda. However, the power of the courts is really limited because the Supreme Court, you know, can't be watching, you know, TV and say, what the heck's going on? Let's make a ruling. They have to wait for the process to begin.

Hannah McCarthy:
Okay. So that's how a case gets into the Supreme Court. What happens once you're in there?

Nick Capodice:
Have you actually have you been to the Supreme Court chamber?

Hannah McCarthy:
I have not.

Nick Capodice:
Have you? Not since seventh grade. Anyone can visit it and witness the oral arguments. It's sort of this hallowed date, the first Monday in October until about mid-April. The court hears arguments and they make decisions. And when they're in recess, they choose their next session's cases and they prepare for those people will wait in line, sometimes from 5 a.m., like a rock concert to get a seat.

Larry Robbins:
In the years that I was in the Sg's office, they the Supreme Court, heard many more cases than they do these days. In those years, which were 1986 to 1990. There were typically four arguments every day that almost I think never happens anymore. The court doesn't grant as many cases as it used to.

Nick Capodice:
After the argument, usually the same week they meet privately and they vote. The senior justice and the majority decides which justice, with a lot of help from their clerks, is going to write the opinion. Drafts circulate, edits are made. These opinions take time mostly.

Kathryn DePalo:
Most of the time there is a majority opinion, whether it's 5 to 4 or 9 to 0. They they often on the court want to not have closely divided opinions because that doesn't look good for the court. Certainly going forward, that might not stand if you have a change in composition of the court. And then justices certainly that disagree, can write dissenting opinions. And Ruth Bader Ginsburg, I think, has written some of the more interesting ones expressing her legal rationale for why she thinks the majority got it wrong and what she thinks would be the proper course. Some write concurring opinions, meaning they're part of the majority. They agree with the majority, but they may disagree on some other point or they may expand on some issues that the court did not agree to, did not address. So they'll talk about those particular things as well.

Nick Capodice:
And while the opinion and dissent lay out the legal reasoning for a decision, the ruling is usually one of these three things affirm, reverse or remand. Affirm is that the finding from the lower court is upheld. So the petitioner was unsuccessful in their appeal. Reverse is the opposite, where the lower court's ruling was an error and it's overturned and the petitioner wins the day. And finally, remand is where the case is sent back to the lower court for a retrial with any irregularities corrected.

Hannah McCarthy:
One thing I'm curious about goes back to something that Kathryn said earlier about a court furthering a political agenda. Does the party of the president, who appointed them, have influence on their decisions?

Larry Robbins:
Uh, look, I think I think it's possible to overstate the significance of who appointed a particular judge or justice. I'm close to agreement with my old friend, who is now the Chief justice, John Roberts, who I think famously responded to one of the President Trump's tirades about Obama judges by saying there are no Obama judges, there are no Bush judges, there are just judges trying to do their level best. But I don't think, you know, anybody should be so naive as to imagine that political ideology has no impact. It certainly does.

Nick Capodice:
Larry told me one thing about how political ideology affects the law and it's something I'd never considered before. It's that right now it's such a high percentage of judges in the lower courts are conservative. And that means there's less disagreement between the circuits on rulings, which in turn means there are fewer cases presented to the Supreme Court for writ of certiorari. And this goes back to what Larry said, that the Supreme Court every year is hearing fewer and fewer cases.

Hannah McCarthy:
Last thing, these justices are appointed for life. They often outlive the presidents who appoint them. And they're not Constitution interpreting blank vessels. They have strong opinions. Right. So how do they interact with each other when they're off the bench?

Nick Capodice:
Larry refused smartly, I believe, to go on the record about that. But Katherine had a specific example that I thought was just lovely.

Kathryn DePalo:
The late Justice Scalia, probably one of the most conservative jurists we've had on the U.S. Supreme Court, was best friends with Ruth Bader Ginsburg, one of the more liberal justices we've seen in the history of the court. And they have this love of opera together. And they would would go see operas and they would have dinner with the spouses. And we're really the best of friends. And, you know, you can't find two really more opposite people. A lot of the justices have said, you know, it's not like in Congress where, you know, I'm going to yell at you for having your position. I respect your position. I may not agree with your position, but you have the right to say that and we move on. So I think the fact that they all trained lawyers and have gone through the advocacy processes in their careers and understand you're going to win some, you're going to lose some, I think is particularly important. And I think that's how the court continues to operate.

Nick Capodice:
Before we move on, Hannah, I snuck a little joke in this episode.

Hannah McCarthy:
You did?

Nick Capodice:
I did. People who listen to her podcast might know that I sometimes sneak jokes in after the credits, and I sure did. Here. Can I. Can I play it for you?

Hannah McCarthy:
Yeah. All right.

Nick Capodice:
May I help you, sir? Oh, yes. Is this the store that sells judicial accouterment? Oh, God. Save Mr. Marbury. What can I get for you? Yes. I have a need of so many things. A hat and a wig and a robe. Whatever it is the judges get these days. Well, I can help you there, Mr. Marbury, but it make much more sense for me to tell you that once you have the actual job. No, no. Yes, sir. I am to be a judge. And you best marshal your words with better care, or I can make life very difficult for you. Well, no offense, Mr. Marbury, but talk like that makes me think you'll be a very shabby justice indeed. No. The way I see it. I'm going to be a prudent judge. I'll hand down wise decisions where it's just the justices I've met. They actually have commissions. I'll be legislating from the bench. My rulings will be famous brushing up on torts and Contract Law and writs of mandamus. But first, I think John Marshall will Have to budge. I just can't wait to be judge. Oh, crap.

Hannah McCarthy:
That was, without a doubt, one of the most ridiculous things I have ever heard.

Nick Capodice:
We've got more Supreme Court stuff headed your way after the break here on Civics 101.

Hannah McCarthy:
But before the break, this is your weekly reminder that we have a newsletter. It's called Extra Credit, and it's essentially where we put everything that ends up on the cutting room floor in each of our episodes. If you want to get all of that good stuff that we are so obsessed with. You can subscribe at the top of our website, civics101podcast.org.

Nick Capodice:
I'm an Nick Capodice.

Hannah McCarthy:
I'm Hannah McCarthy. And you're listening to Civics 101 from NHPR. You're about to hear our episode on one of the most infamous Supreme Court cases from American history. This is the story of Dred Scott versus Sanford, the case in which seven out of nine justices agreed that anyone descended from an enslaved person could not be an American citizen. In effect, black Americans were not Americans at all. This case is anti canon, a term that we get into in the episode itself. But I want to highlight that there are only four cases that are considered grievous enough to fall into this category. It's Dred Scott, Plessy versus Ferguson, Lochner versus New York and Korematsu versus the United States. We cover three of these cases in our Supreme Court series. You're about to hear Dred Scott, but you should also check out Plessy and Korematsu at our website, civics101podcast.org. These cases reveal a lot about both the justices on the court and prevailing prejudices, racism and notions about human rights at the time that the decisions were issued today. The rulings in these cases are known to be wrong, but that doesn't mean that the opinions are poorly written, that their reasoning doesn't have some isolated soundness. To understand our anticanonis to understand the fact that our civil rights are not divine. They are established or withheld by fallible people in black robes. So without further ado, here's Dred Scott V Sanford.

Hannah McCarthy:
There are some decisions made by the Supreme Court that are considered to be canon, meaning they are considered so obviously right and true and in keeping with correct constitutional meaning that they set unimpeachable precedent. Brown v Board of Education, for example. Racial segregation of children in public schools is unconstitutional. This is almost universally agreed upon as right and true. In keeping with the word of law in the United States. It's both about constitutional interpretation and ethical and moral principle. And then there are cases that represent the exact opposite. The rulings in these cases have been described by scholars and judges as bad, grievously mistaken, odious. These are the Supreme Court's mistakes. We call them the anti canon.

Nick Capodice:
Anti canon as in the opposite of canon.

Hannah McCarthy:
Sort of, but still a form of canon, still something that should be used if canon should be used as precedent. Anti canon should be used as anti precedent decisions so wrong that their incorrectness stands as a glaring warning. This is what not to do. This is what the Constitution does not mean. And today we're going to tell you about the first anticanoncase. And many would say the worst a decision, incendiary enough to help to push our nation to the brink of war and inhumane enough to require constitutional amendments to fix its results. The 1857 case, Dred Scott v Sandford.

Lynne Jackson:
Dred Scott, aside from being my great great grandfather, is also a hero.

Hannah McCarthy:
This is Lynne Jackson.

Lynne Jackson:
Great, great granddaughter. Dred Scott, founder and president of the Dred Scott Heritage Foundation.

Hannah McCarthy:
In 1846, Dred Scott was living in St Louis, Missouri, with his wife Harriet, and daughters Eliza and Lizzie. The family was enslaved and suing for their freedom. That is how this case starts, and we're going to come back to that. Now, Lynn formed the Dred Scott Heritage Foundation back in 2007 with the goal of getting a statue of Dred and his wife Harriet, erected in front of the St Louis, Missouri, courthouse where the case started. Lynn got the statue and since then she's been telling the Scott story and connecting other descendants of impactful Americans to share their stories and reconcile their pasts.

Lynne Jackson:
What we've done to help Dred Scott's legacy go forward into the future. Because when you think about it, there was a period of time when Scott's name was known but not taught. The case was not taught. I even have his beautiful, very thick black book on Afro-American history. And it's just like this thick. But Dred Scott is not in that book. It was written by black people. It was written by black people, and it was written in the forties. And I couldn't believe it.

Hannah McCarthy:
And I think, like to Lynn's point, I had just sort of a glancing blow of a lesson about Dred Scott when I was in school. I know teachers teach it now, right? But I really barely knew the story of Dred Scott. What about you?

Nick Capodice:
Back then, I also knew nothing about it. I knew it was about a formerly enslaved person and whether or not the court could decide if they were citizens or not.

Hannah McCarthy:
I think there was a period during which this case kind of lay dormant or not deeply explored.

Lynne Jackson:
Things like that can drop off sometimes. Well, he's back.

Nick Capodice:
Okay. 1846 St Louis, Missouri. Dred and Harriet are enslaved and suing for their freedom. So first, what are the laws about slavery in the United States at this time?

Hannah McCarthy:
Yeah, enslavement was legal in some states and prohibited in others. There was something called the Northwest Ordinance. It was passed just before the Constitution was ratified, and it prohibited slavery in this area. Specifically, it had to be west of Pennsylvania, northwest of the Ohio River and east of the Mississippi. Something called the Missouri compromise admitted Missouri to the nation as a state where you could enslave people main to the nation as a free state and said, okay, here on out, new states north of a certain latitude will be free states. New states south of that latitude will be states where you can enslave people.

Nick Capodice:
But if Dred and Harriet were in Missouri, which was a slave state, how could they sue for their freedom?

Hannah McCarthy:
Freedom suits actually stretch back to the colonial era in North America. They're a holdover from English Common Law. They were often based on enslaved persons having been held in a free state or territory. There was a once free, always free principle that was respected even in many slave states. So the Scots suing for their freedom. It's not that big of a thing, even in Missouri.

Lynne Jackson:
Well, you know, when in the beginning and really even to 1854, it probably wasn't that much of a situation because locally in Missouri, there were slaves who sued for their freedom.

Hannah McCarthy:
Hundreds of enslaved people petitioned for and won their freedom in Saint Louis.

Lynne Jackson:
In order to do that, you have to have some serious proof of grounds and proof evidences and certain criteria had to be met. So if they were met, the courts would allow them to petition and sue.

Nick Capodice:
What kind of proof are you talking about?

Judge John Tunheim:
The rule of law at the time, even in many of the Southern states, was that if an enslaved person lived and worked for a period of time in a free jurisdiction, they became free.

Hannah McCarthy:
This is Chief Judge John Tunheim of the U.S. District Court in Minnesota.

Nick Capodice:
So what point had the Scots lived in a free territory?

Hannah McCarthy:
All right. Here is the quick rundown. Dred Scott had been enslaved by a man named Peter Blow, and Scott had lived in Virginia, Alabama and Missouri in his early years.

Nick Capodice:
All slave states.

Hannah McCarthy:
That's right. Now, the blows eventually sold Scott to an Army surgeon, Dr. John Emerson. And we're not 100% certain of when that happened.

Judge John Tunheim:
Dred Scott himself, when he was sold to Dr. John Emerson, followed him to a number of different jurisdictions, the state of Illinois and a military reservation. The Wisconsin territory for Snelling in what is now Minnesota, various times in Saint Louis, in the state of Missouri, and even a short stint in Louisiana. All four of those jurisdictions at the time recognized that enslaved people would become free because they had lived in a free jurisdiction.

Hannah McCarthy:
So Dred is taken by Emerson to Fort Snelling, where he meets a woman, Harriet Richardson. She is also enslaved and her enslaver transfers her ownership to Emerson when she marries Scott. This was typically done through dealing specifically quitclaim deed thing used to transfer physical property, and the Scott's are taken by Emerson to his various army posts, staying at times in free territories. Harriet eventually gives birth to their first born daughter, Eliza, while traveling by Steamboat on the Mississippi River. Eliza is born in free territory.

Judge John Tunheim:
Now, I think the precipitating factor of the Scott's suing for freedom came after Dr. Emerson died in 1842. I believe they were in Saint Louis at the time. The Scotts were they were inherited by his wife, Irene, and they tried to buy their freedom from her, which many, many people had done in Missouri, in Saint Louis. And there was a growing community of of free blacks living in Saint Louis. And that probably decided this was time. No longer with Dr. Emerson. He's passed away. Maybe not any particular attachment to his wife. So they sued in state court a freedom lawsuit, which is what they were called at the time. Missouri had recognized the right of enslaved people to sue for freedom since at least 1824, and it was settled law. They probably thought this was a slam dunk case. And so they sued and essentially they lost on a technicality. The technicality was that they didn't have a witness who could testify that Irene Emerson actually owned them.

Nick Capodice:
So they had to prove that the person who was enslaving them was, in fact enslaving them.

Judge John Tunheim:
Seems strange to us today that that would be the case. But that was the law back in that time. And so therefore, the case was dismissed for lack of a witness who could testify as to the person they were suing actually own them. And so that was appealed to the Missouri Supreme Court. At the time, the Missouri Supreme Court said this is nonsense and ordered a new trial.

Nick Capodice:
I have to ask, at this point, the Scotts had been in and out of free territories a number of times, and their daughter was born in a free territory. So why are they just petitioning for their freedom now?

Judge John Tunheim:
No one really knows exactly why they may or may not have known their rights. Certainly, unfortunately, during the time there were slaves held by many of the officers who were stationed there, including Zachary Taylor, who later became president. But it was a common practice.

Nick Capodice:
So it wasn't unusual for enslaved people to be held in free territories. And I would imagine that enslavers were not in the business of broadcasting that once free, always free doctrine.

Hannah McCarthy:
That seems like a safe bet. And even if you did know your rights, you're facing the legal fees required to launch a lawsuit. In the Scotts case, their initial fees were actually paid by the very same family who initially enslaved Dred Scott. The blows.

Nick Capodice:
The blows, really.

Hannah McCarthy:
It turns out that within a generation the family had become abolitionists. There's a lot in this story that you really couldn't make up. Now, getting back to the case, the Missouri court orders this new trial. At this point, Dred and Harriet's lawsuits had been combined into one. And the trial happens. This is in 1850.

Nick Capodice:
We're going to learn all about the trial after a quick break. But first, we at Civics 101 have put together many explorations of landmark Supreme Court cases. If you're a fan of learning about the judicial branch and how it applies to you, check them all out at our website, civics101podcast.org. I'm Nick Capodice.

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
And you're listening to Civics 101 from NPR. We are back with the conclusion to one of the most infamous cases in Supreme Court history. Dred Scott v Sanford.

Lynne Jackson:
And so the second trial, they did win their freedom by a jury of 12 white men.

Nick Capodice:
They won. They were.

Lynne Jackson:
Free. And that was a happy day, except that Mrs. Emerson appealed it and then it just continued to go from there.

Hannah McCarthy:
This whole case is gutting and it's only going to get worse. But it is this moment when the Scott who at this point have two young daughters actually win their freedom and their enslaver moves to take it away again. That I just can't stop thinking about. And that appeal is successful. Irene Emerson wins.

Nick Capodice:
And at this stage, the Scott's freedom has been through three hearings. They just were going through it over and over again.

Lynne Jackson:
They had many opportunities after the Supreme Court of Missouri said no. They could have stopped their case any time they wanted, especially up until the point of the Missouri Supreme Court decision, which was March 22nd of 1852. After that, they did not have to continue, and there were times when they could have broken it off, but they won. They went forward, and I think that was quite great.

Hannah McCarthy:
At this stage, it is not just their freedom that is at risk. It is the ability to sue for freedom that becomes at risk as well.

Lynne Jackson:
There were other slaves who were talking saying, oh, they ought to drop this case. What if it goes bad? We're all going to be in trouble. So if you think about it from that perspective, it's like they were going to take the flack from even their maybe own community.

Hannah McCarthy:
Now, the Scotts had the support of lawyers, but to me, the most compelling reason to keep pushing this case and taking the risk was much closer at hand.

Lynne Jackson:
The hard part was when it became a national or federal case and a national issue, in which case that's when the hiding of the girls became something they felt they should do. You know, young girls were sold all the time because they were young and fertile. And if you bought them, then you were investing in your future slaves so that they didn't want that. They wanted to keep the family together until they knew the verdict, at least. All right. Why wind your freedom when your girls had been sold away from you and it was about.

Nick Capodice:
So how does this case finally get to the Supreme Court?

Hannah McCarthy:
One important factor is that over the course of these cases and appeals, Emerson's widow, Irene, moves to Massachusetts and marries a congressman and staunch abolitionist named Calvin Chaffee. And Irene's brother, John Sanford, claims ownership of the Scott Sanford, by the way, lives in New York. And the Scotts are still in Saint Louis being hired out.

Nick Capodice:
Okay. There's that name Sanford. Except this case is Dred Scott vs Sandford, right?

Hannah McCarthy:
It is. It's a misspelling that the court couldn't undo. The Supreme Court has actually made a tremendous amount of spelling mistakes over history. And they just stick around.

Nick Capodice:
And Dred Scott ends up suing Sanford for his freedom.

Hannah McCarthy:
He does. And Sanford, being a New Yorker, is actually the reason Dred and Harriet get their case to the Supreme Court. To go before a federal court. A case has to either be a matter of federal law or it has to be between citizens of different states who are also claiming damages of a certain amount. The Scott's lawyer argued that federal courts could hear this case because Sanford was a New Yorker and the Scotts were from Missouri. But when the case does get to the Supreme Court, here is the question Are the Scotts citizens of Missouri, are they citizens of the United States?

Judge John Tunheim:
You know, ultimately, the Supreme Court, again struggled with the jurisdiction question Do we have jurisdiction to hear this case? If Dred and Harriet Scott were not United States citizens, then there was no federal jurisdiction and perhaps no jurisdiction for this case to even move forward. And ultimately, that's what the opinion said in opinion that indicated, first and foremost, there is no jurisdiction here because blacks who are slaves, any black, actually is what the Supreme Court said. Chief Justice Thomas opinion could not be a citizen of the United States.

Hannah McCarthy:
Andy canon. Point number one, Black people, regardless of freedom status, cannot be American citizens and cannot sue in federal courts. Here's Andy canon, Point number two.

Judge John Tunheim:
Tommy's opinion, I think, was well over 50 pages in and of itself. So this is what he did or he declared unconstitutional. That portion of the Missouri compromise, which had prohibited slavery in all the federal territories north and west of Missouri, a critical part of the Missouri compromise in existence for understood by everyone for some 35 years. It declare, he declared also that Congress had no power to regulate slavery in the territories, even though Congress had been doing so even since the Articles of Confederation Congress in 1787, when the Northwest Ordinance was passed, which which guaranteed no slavery in that portion of the United States territories. And then it also went on to say that free blacks could never be considered citizens or protected by the Constitution. That may have been the view of some of the framers, but it certainly was not how the Constitution had been interpreted throughout those many years.

Hannah McCarthy:
Tönnies thinking here were pretty sure that he conferred with President James Buchanan before issuing this opinion was OC. The slave debate is roiling in this country and comes up every time we add a new state and I'm just going to put an end to it. And he is explicit about this in the opinion itself. He quotes the Declaration of Independence. All men are created equal with unalienable rights. And then he writes, The enslaved African race were not intended to be included. He writes that black people, quote, had no rights, which the white man was bound to respect and that they, quote, might justly and lawfully be reduced to slavery for their own benefit. Taney is thinking, I'm going to end this debate now. Black people cannot be citizens, and the framers never intended for them to be. Enslavement is justified and legal conversation over. But of course, in a country intensely divided on the issue of slavery, this opinion was like gasoline on a fire.

Judge John Tunheim:
It was a catalyst for creating the crisis that led to Lincoln's election and then secession, civil war, and the end of slavery. It helped create the timing, I think, more than anything else. I do think it helped create Lincoln as a national politician and figure he based his soon thereafter Senate campaign in 1858 on opposition to this decision and to what what he had done. And it undercut Stephen Douglas, who was a Democrat, of course, and is striving to work with Southern Democrats in that period of time. And then, of course, the 13th and 14th Amendments were later passed, in part to overturn the holdings in Scott versus Sanford.

Nick Capodice:
What year was this opinion issued?

Hannah McCarthy:
This is 1857.

Nick Capodice:
So civil war starts 1861, and then the reconstruction amendments are passed in 1865 and basically overturn the provisions of the Dred Scott decision. So it must have been immediately apparent that this case was wrongly decided.

Hannah McCarthy:
And it has been seen that way ever since.

Judge John Tunheim:
It is quoted. Whenever a justice in modern times thinks something is dreadful, it's dreadful like the Dred Scott decision. It's usually referred to in a dissent. Justices compare it to what they disapprove of and think is awful in the court's current jurisprudence. William Brennan used to use the decision in his opposition to the death penalty and his view that the death penalty was racist. Justice Scalia has used it in dissents, and I think his was in an abortion related case. So it is used and it is universally recognized as completely wrong and bad.

Hannah McCarthy:
We have this appallingly bad decision issued by the Supreme Court, something truly wrong and loathsome, and it has massive reverberations to this day. But I think what can get lost in the Dred Scott decision is the family. Who had the courage to make it happen, to risk everything and to lose. Dred Harriet and their daughters, Eliza and Lizzie, are still enslaved people at the end of this protracted saga. But there is one last element to this story.

Lynne Jackson:
Finally, of course, within three months, the family got their freedom and that was a good thing.

Hannah McCarthy:
It's ultimately determined that Sanford does not even legally own the Scotts. So it's up to Irene and Calvin Chaffee to do something about this. Especially because, remember, Chafee is an abolitionist and his supporters in Massachusetts won't stand for his being an enslaver. But the Chafee's cannot monument or release the Scots. Only if an enslaver lives in the same state as their enslaved. Could they do so. Instead the Chafee's sell the Scots.

Lynne Jackson:
They actually used A quickclaim deed To transfer them. And it quickclaim deed is a property instrument. And so I usually indicate that in order to make it legal, since they were legally their property, then that was the instrument that they had to use. But yes, again, the family was there. They bought them with the express purpose to free them that they did on May 26 of 1857.

Nick Capodice:
So the Scots last owners are the same family who first enslaved Dred Scott.

Hannah McCarthy:
Yeah. And Dred, Harriet, Eliza and Lizzie are free. Dredd got a job as a porter at the Barnum Hotel in Saint Louis. And he passed away 18 months later.

Lynne Jackson:
He died on September 17th, 1858, which ironically is Constitution Day.

Hannah McCarthy:
This is the story of one of the worst rulings in Supreme Court history. It's the story of a man and woman who fought for and did not win their freedom. And that man, when he finally got that freedom, could only enjoy it for a year and a half. But this story is not isolated in time. The inheritors of this case, including Dred Scott's great, great granddaughter and those of Supreme Court Chief Justice Taney, keep it alive and for good reason.

Lynne Jackson:
And what I love about the Taneys is that, you know, they own that story and they don't defend it. You know, they're out and aboveboard about how how it was. And so we're all here to try to make it better. I absolutely do know that we are a reconciled group. So whenever I call Charlie, he says, If you think it's a good idea, I'm there. And we get to share the stories of our ancestors and how these cases, how this case came about. We also share about what we're doing today, and we have a few ideas of how people can work reconciliation within their own communities, in their own families, their own small groups of friends.

Hannah McCarthy:
When Lynne says she is part of a reconciled group, it's actually got a name the Sons and Daughters of Reconciliation. This cohort of descendants who work together on education programs within the Dred Scott Heritage Foundation specifically designed to keep their histories alive and educational.

Lynne Jackson:
That program was always designed to bring our histories together, and that way we could share what we know as individuals, which nobody else knew because they barely were in the history books.

Nick Capodice:
I feel like what Lynne and all these descendants are doing with their stories, keeping history at top of mind, educating the public, encouraging action that flies in the face of this egregious past. It reminds me of what we were talking about at the beginning, this principle of anticanonitself. Dred Scott is enshrined as anticanonbecause we should never forget it. We should always consider it as grave legal decisions are made to ensure that we never again make a decision like it.

Hannah McCarthy:
And the Dred Scott case is almost universally considered the very worst of what can happen when the Supreme Court makes the wrong choice. When we ask why these cases are important to us today in the United States, the anticanonserves as this reminder that we are not infallible, that throughout our history, immoral constitutional interpretations have happened that reflect what some voices of power believe. And then that interpretation gets applied to our most foundational word of law. You cannot merely condemn these cases and leave them in the past. You have to keep talking about them.

Nick Capodice:
If you love this episode and want more. Boy. Howdy. John Henry Boudreaux. Have we got it? You can find all of our many episodes as well as a plethora of resources at our website, civics101podcast.org. You can also follow us on Apple Podcasts or Spotify or wherever you get your podcasts so you'll never miss the Civic's beat.

Hannah McCarthy:
Music In this episode by the Young Philosophers Club Xylo Zico. Chris Zabriskie. Tom starts Bandit Doug Maxwell, The Grand Affair. Emily Sprague Young Carts and the MIT Symphony Orchestra. Archival Supreme Court audio comes from Oh yeah.

Nick Capodice:
Oh yeah, it does.

Hannah McCarthy:
That's why Izzy dot org. This episode of Civics one one was produced by me, Hannah McCarthy and you Nick Capodice.

Nick Capodice:
Our team includes Christina Phillips and Jacqui Fulton. Our executive producer is Rebecca Lavoie.

Hannah McCarthy:
Civics one on one is a production of NHPR New Hampshire Public Radio. Archival Supreme Court audio comes from. Oyez that's.

Nick Capodice:
Oh, sorry. I was excited.

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