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Delegitimizing the Supreme Court: The Lessons of Dred Scott

Booth, Jonathon, Delegitimizing the Supreme Court: The Lessons of Dred Scott (August 28, 2023). 51 UC Law Constitutional Quarterly, Forthcoming, Available at SSRN:

“This Article examines how anti-slavery Republicans delegitimized the Supreme Court in the aftermath of Dred Scott v. Sandford, 60 U.S. 393 (1857) and compares this history to contemporary attempts to reform the Court or resist its decisions, focusing particular attention on recent cases regarding abortion rights. After Dred Scott was decided, anti-slavery Northerners and Republican politicians immediately attacked the decision as illegitimate dicta, beginning a cycle of delegitimization. As Northerners denounced the decision, Southern states and the federal government began to implement its holdings that Black Americans were not citizens. Arkansas, for example, passed a law expelling all free Black residents of the state. The implementation increased the anger of Northerners and led Northern courts and legislatures to defy the decision openly. Opposition to Dred Scott propelled Abraham Lincoln to the presidency and his administration and the Republican Congress continued the cycle of delegitimization by passing a number of laws, including the Civil Rights Act of 1866 that blatantly contradicted Dred Scott’s holdings. The ratification of the Fourteenth Amendment completed the cycle by formally superseding Dred Scott. This history demonstrates that the Supreme Court’s legitimacy and authority is more tenuous than it appears. The Court’s current legitimacy crisis raises the prospect that a similar cycle of delegitimization could occur today and lead to the repudiation of recent decisions, most notably Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022).”

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