Like the leaked Dred Scott decision, the leaked abortion decision could fall flat
After an investigation that would have shamed Inspector Clouseau, the Supreme Court marshal’s office determined it was “impossible” to tell who leaked a copy of the controversial Dobbs decision that overturned Roe v. Wade.
In her report, the marshal meticulously detailed the advanced forensics employed to study each and every court employee with access to the Dobbs file, none of whom appeared to be guilty. But the justices themselves were not subjected to the same scrutiny, which is like investigating a theft at McDonald’s without interviewing the Hamburglar.
History shows it’s the justices themselves who are most prone to leaking, perhaps the most famous instance of which involved the infamous Dred Scott decision in 1857.
We know Dred Scott for Chief Justice Roger B. Taney’s abhorrent dicta that Black people have no rights that a white man is bound to respect. It is this that offends modern sensibilities — and has toppled the Taney bust from places of prominence — but in 1857 it would have been largely beside the point. Probably the great majority of Northerners, even those who opposed slavery, would have had no particular argument with the idea that Blacks were inferior.
As the country careened toward civil war, it was the question of slavery’s expansion that dominated everyone's attention. Congressional stabs at legislative solutions had only made things worse, and a string of less-than-memorable presidents had shunned decisive action at all costs.
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Southern states insisted that slavery be allowed in new states, and that their slaves be recognized as legal personal property no matter where in the nation they happened to travel. This infuriated not just abolitionists, but Northerners in general who were deeply offended by the thought of countrified rubes in the South telling them what to do.
That left the Supreme Court, whose members were appointed for life and impervious to voter retribution, as the ultimate decider.
This suited incoming President James Buchanan fine, as he could declare the matter settled, and wash his hands of any involvement in the divisive issue prior to taking office. His position on slavery — slavery is wrong, but it’s up to the states to choose — has the ring of politicians today who say they are personally opposed to abortion, but think the choice should be up to the individual.
He was also a man with the conviction to know what was right, and the conviction not to do it. The Franklin County, Pa.-born Buchanan warned his Southern friends that tearing up the Missouri Compromise was suicide, just as some politicians are warning the anti-abortion movement against using what was in effect a sectional win courtesy of Dobbs, as a stepstool to try to ban abortion nationwide.
But even though Buchanan saw the risk of expanding slavery, in practice he agitated for it anyway, not wanting to do anything to offend his friends (and voters) in the South.
Naturally, in Buchanan’s view, it would have been inconvenient for the high court to rule that Dred Scott’s rights superseded that of the slave states. He also desperately needed the Supreme Court to announce its decision prior to his March 4, 1857, inaugural speech, where he would be expected to weigh in on slavery and the territories.
The court’s ruling had been expected prior to the inauguration, but was delayed due to the illness of a justice. Getting antsy, Buchanan began corresponding with Justices John Catron of Tennessee and Robert Grier of Pennsylvania. His written concerns were that, one, the decision needed to be speeded up, that, two, it would be preferable if the court would rule for state’s rights and that, three, it would be really good if a judge from Pennsylvania would rule with the majority.
Political appearances are not a recent introduction into the Supreme Court. The judges acknowledged the decision would be delegitimized if all the justices from south of “Mason & Dixon’s Line” were to vote in pro-slavery fashion, while northern judges were all opposed.
Grier passed Buchanan’s letter to Taney and their colleague Justice James Wayne, and the three decided to leak the decision prior to March 4. “With their concurrence," Grier wrote the president-elect, “I will give you in confidence the history of the case before us, with the probable result.”
On Inauguration Day, Buchanan was spotted whispering with Taney prior to his speech. Many have assumed it was then that the leak occurred. But Buchanan, at that point already knew. For all the good it did him.
We imagine that the Supreme Court decides things, but the reality is that courts that are behind the times are swept aside by events. One day, it will be known who leaked the Dobbs decision. And it will be known that it ultimately didn’t accomplish anything.
Tim Rowland is a Herald-Mail columnist.
This article originally appeared on The Herald-Mail: U.S. Supreme Court's Dobbs decision leak just latest in history
