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Terence McAteer: Has Supreme Court created another self-inflicted wound?

Terence McAteer | Other Voices

Recently, I wrote commentary comparing the events of 2022 to America in 1857.

Both years experienced severe economic turbulence. Both years were under Democratic dominance in the House, Senate and presidency. Both years saw a nation severely divided and both years produced the most monumental Supreme Court decisions of that century.

I asked in that column if we as a nation learn from our history or are we doomed to repeat it.

Now that Roe has been overturned by the Supreme Court, we need to look at the parallels to Roe and the infamous 1857 Dred Scott v. Sandford decision handed down in a 7-2 vote of the justices.

Nearly all historians and legal scholars consider the Dred Scott decision to be the worst ruling in the history of the Supreme Court. A later chief justice, Charles Evans Hughes, famously characterized the decision as the court’s great “self-inflicted wound.”

In Dred Scott, a politicized court, in an opinion written by Chief Justice Roger Taney, ruled that African Americans were not citizens under the Constitution and therefore had no rights that a white man need respect or that the federal government could protect. The decision contributed directly to the political divisions which, ultimately, culminated in the Civil War a few years later.

It is safe to say that this recent decision has certainly widened our own national chasm. As with Justice Alito’s majority opinion, the Dred Scott decision was leaked ahead of time. As with Alito’s opinion, it was preceded by a campaign to urge citizens to respect the decisions of the court as grounded in law, not politics.

In the Dred Scott decision,Taney relied on a rigid standard of interpretation that ignored precedent and deep-seated legal opinions. He argued that Black people could not be American citizens because at the time of the writing of the Constitution they were considered “beings of an inferior order … and so far inferior,that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.”

Alito’s majority opinion similarly adopts a rigid standard, arguing that the Constitution contains no words about abortion and that abortion was widely outlawed at the time of the founding.

Of course, at the founding, women were not citizens, didn’t have the right to vote, and were treated largely as property of their husbands.

The Dred Scott decision left the question of slavery not to the national majority, which sought to outlaw it in western lands, but to state legislatures that reserved voting to white men.

Alito’s decision reverses a settled national precedent, supported by the majority, and leaves the abortion question to state legislatures.

Taney believed that the decision would help temper the growing controversy over slavery that was dividing the nation.

Alito suggests that overturning Roe will help reduce political divisions.

The Taney decision was directed at slavery by rolling back the rights of free blacks.

Alito’s majority opinion not only rolls back women’s rights to control their bodies, but also calls into question the right to privacy and the precedents that have protected the right to marry whomever you choose, to use contraception, to have privacy in your home, to not be discriminated against on the basis of sexual preference, and more.

After the Dred Scott decision, the Black abolitionist Frederick Douglass denounced Taney’s reasoning as contrary to both the Constitution and the vision of the founders. He argued the decision would not stand: “I have no fear that the National Conscience will not be put to sleep by such an open, glaring, and scandalous tissue of lies.”

We have all been witness to a monumental Supreme Court decision that will be written in history books for generations to come. If history does repeat itself, then has the court again delivered another self-inflicted wound?

The wound of 1857 helped spark the Civil War. What will this decision spark?

Terence McAteer lives in Nevada County.


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