Fact check: Viral post on Supreme Court's Dred Scott ruling includes inaccuracies

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Ken Serrano, Asbury Park Press
·4 min read
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The claim: All seven justices who ruled in the majority in the Supreme Court's 1857 Dred Scott decision were Democrats. The two justices who dissented were Republicans.

The Dred Scott decision of 1857 remains the most notorious in the history of the Supreme Court.

The high court denied Scott, a slave, the freedom he first sued for in Missouri in 1846. In his opinion, Chief Justice Roger Taney wrote that Black people "are not included, and were not intended to be included, under the word 'citizens' in the Constitution."

The majority justices hoped the decision would settle the question of slavery, at least in the territories, but the start of the Civil War four years later proved those hopes false.

The U.S. Supreme Court building in Washington, D.C.
The U.S. Supreme Court building in Washington, D.C.

The 13th Amendment in 1865, which abolished slavery, and the 14th Amendment in 1868, which granted citizenship to anyone born or naturalized in the United States, nullified the Dred Scott decision.

A 2018 post on Facebook that has drawn renewed interest cites a tweet by noted Trump supporter, actress and onetime member of the band Pussycat Dolls Kaya Jones. It emphasized the role of Democratic justices in that decision. While Jones gets it right about the majority justices being Democrats, she errs in the party affiliations one of the dissenters, and more significantly, she fails to provide historical context.

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Messages sent to Jones via email and Messenger were not immediately returned.

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One dissenting justice was a Whig

The seven justices who supported the decision were indeed Democrats. But of the two dissenters — Benjamin Robbins Curtis and John McLean — only McLean was a Republican during his tenure as a Supreme Court justice. Curtis identified as a Whig at a time when that party had collapsed, said Earl M. Maltz, a professor at Rutgers Law School, Camden, and the author of “Slavery and the Supreme Court, 1825-1861.”

Curtis was the only justice with that party affiliation in the history of the high court, he said.

Also, the Dred Scott ruling did not address the status of slavery in the states on the whole. The Supreme Court held that Congress could not ban slavery in the territories, Maltz said. The ruling included Taney's opinion that Black people could not be citizens of the United States.

But of more historical importance is the context of the different roles of the two parties between then and now.

More: Fact check: Historical claims about constitutional amendments lack context

Republicans and free soil

While Democrats have long been associated with progressive causes and the Republican Party with conservative politics, it wasn’t always that way. The Republican Party in the 1850s – the party of Lincoln – was organized around the principle of free soil, meaning no slavery in the Western territories, Maltz said.

At the same time, the Democratic Party had a stronghold in the South because of its support of slavery.

The Democratic Party would eventually morph into the party of progressive causes but the transition wasn’t so simple. The Democratic President Woodrow Wilson, known as a progressive, was “one of the most racist of all the presidents,” Maltz said.

Southern Democrats started questioning their party affiliation in 1948, when President Harry Truman sought to address racial discrimination. The switch became firm when Democrats in the South abandoned the party in droves following the Civil Rights Act of 1964 and the Voting Rights Act of 1965, Maltz said.

The Dred Scott decision remains pertinent because the legacy of slavery continues, evidenced by the implicit and explicit bias that still exists, he add said.

“That’s why we’re still talking about this, because of the accumulation of disadvantages faced by African Americans due to slavery and Jim Crow,” he said. “These disadvantages accrue. They multiply over time.”

More: Fact check: The United States is not the only country to abolish slavery

Our rating: Partly false

We rate the claim that the seven majority justices in the Dred Scott decision were Democrats and the two dissenting justices were Republicans PARTLY FALSE, based on our research. While the seven justices who ruled in the majority were indeed Democrats and one dissenting justice was a Republican, the second dissenting justice, Benjamin Robbins Curtis, identified as a member of the Whig Party. It is false to state Dred Scott upheld slavery in the nation as a whole. Further, the post lacks the context of what each party stood for at the time of the ruling.

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This article originally appeared on Asbury Park Press: Fact check: Viral post on Dred Scott ruling includes inaccuracies