Daily Planet, November, 2018
James Buchanan, as president, was a free-wheeling, iconoclastic, vacillating, white supremacist Northerner. Yeah, a lot like Donald Trump.
And he made one gigantic misjudgment about the Supreme Court – one that Trump seems to be making now.
As president-elect in 1857, Buchanan badly wanted the issue of slavery to be over and done with before he took office. At the time, a lawsuit had made its way to the Supreme Court, Dred Scott v. Sanford, in which a slave in Missouri wanted his freedom because his master, a U.S. Army surgeon, had held him in free states. The unwritten rule at the time was, “Once free, always free,” but Missouri courts had ruled him still a slave.
Five justices on the Court wanted to decline consideration, but Chief Justice Roger Taney, with Buchanan’s encouragement, wanted to use the case to decide the issue of slavery.
Taney wrote an astounding opinion. He reasoned that since, at the time of the Constitution, blacks “were 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 unfit that they had no rights which the white man was bound to respect.” He said that blacks never were and never can be citizens, so Dred Scott had no standing to sue for his freedom.
Six other justices concurred. All seven on the winning side were Southerners or were “doughfaces” appointed by Southern presidents. The Court was blindly partisan.
Taney’s opinion was exactly what Buchanan wanted. He thought the American people would accept the Court’s decision as final, and so the slavery issue would go away.
He was wrong, so very wrong. Instead, the American people recognized the Supreme Court as nothing but partisan politicians in black robes. And we got the Civil War.
Partisan politicians in black robes. That’s not how the Founding Fathers intended things to go. They intended checks and balances, separation of powers, an independent judiciary that makes impartial judgments.
Brett Kavanaugh gives conservatives a 5-4 edge on the Court. But the question before us now is not about conservatives and liberals. It’s about Trump and Trumpism. Will our Supreme Court be independent, or will it be sucked into Trump’s orbit – like the Republican-controlled Congress has been?
I have no doubt that Trump will try to muscle the Court, like Buchanan did. But will he be successful?
Republicans will hold the Senate, where his soulmate, Mitch McConnell, shares his contempt for tradition and rules. The Senate will not just be compliant; they will be complicit in efforts to gain partisan power. And Congress has frighteningly broad powers to restructure itself – and the other two branches.
However, if Democrats take the House of Representatives, congressional pressure on the Court will be mostly neutralized.
Ultimately, everything will lie with the Court. Make no mistake: the five conservatives on the Court are really, really conservative. It’s expected that the new Court will do the usual conservative things, like siding with the rich and corporations over ordinary people. They won’t repeal Citizens United v. FEC. But will they be Trump Republican partisan?
Nobody knows. If we see them stifling Mueller findings, for example, we will hear Dred Scott’s name called a lot. Like Roger Taney’s Court in 1857, our Court will have no legitimacy. And Trump will replay Buchanan. Slits in our national fabric will widen. Most Americans will be enraged. And this animosity could find its way into the Court itself, with justices sniping publicly.
After the Dred Scott decision, Justice Benjamin Curtis, one of the two dissenters, resigned from the Court, the only justice ever to do so. That’s exactly the atmosphere that a partisan judiciary engenders.
James Buchanan got what he wanted in the Supreme Court, and the country got the Civil War. Now Trump has what he wants with Kavanaugh. He expects a nodding majority. What will he get? And what will happen to us?
Footnote: CBS News ranked the 45 U.S. presidents. James Buchanan was #44, next to last. Donald Trump was ranked #45.