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UC Law Constitutional Quarterly

Abstract

This Article examines how Chief Justice Taney’s opinion in Dred Scott v. Sandford sparked a cycle of delegitimization that parallels contemporary debates about the Supreme Court’s legitimacy crisis. Part I explicates how one family’s fight for freedom in Missouri reached the Supreme Court, the resulting radical decision, and the nation’s reaction to show the initial stages of this cycle. Part II examines the impact of Dred Scott on politics and law during the James Buchanan administration (1857–1861). During this period, the federal government, Southern states, and some Western territories swiftly implemented the decision, for example by expelling free Black residents. The opinion and its implementation horrified Northerners and inspired their efforts to resist Dred Scott, including by passing legislation to expand Black rights and repudiating Dred Scott in judicial opinions such as Lemmon v. People of New York. The widespread Northern belief that Dred Scott was illegitimate propelled Republicans, who promised to defy its holdings, into national power. Part III explores how Republicans during the Lincoln and Andrew Johnson administrations (1861–1868) flouted and systematically dismantled Dred Scott by passing laws and implementing executive policies to contradict its holdings. These efforts culminated in the ratification of the Fourteenth Amendment, superseding Dred Scott and completing the cycle of delegitimization. Finally, Part IV uses the lessons of this nineteenth century cycle of delegitimization to scrutinize the Supreme Court’s current legitimacy crisis. It argues that recent decisions including Dobbs v. Jackson Women’s Health Organization could inspire a similar cycle of delegitimization.

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