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The Nathan I. Huggins Lectures
Supreme Injustice: Slavery in the Nation’s Highest Court
The three most important Supreme Court Justices before the Civil War―Chief Justices John Marshall and Roger B. Taney and Associate Justice Joseph Story―upheld the institution of slavery in ruling after ruling. These opinions cast a shadow over the Court and the legacies of these men, but historians have rarely delved deeply into the personal and political ideas and motivations they held. In Supreme Injustice, the distinguished legal historian Paul Finkelman establishes an authoritative account of each justice’s proslavery position, the reasoning behind his opposition to black freedom, and the incentives created by circumstances in his private life.
Finkelman uses census data and other sources to reveal that Justice Marshall aggressively bought and sold slaves throughout his lifetime―a fact that biographers have ignored. Justice Story never owned slaves and condemned slavery while riding circuit, and yet on the high court he remained silent on slave trade cases and ruled against blacks who sued for freedom. Although Justice Taney freed many of his own slaves, he zealously and consistently opposed black freedom, arguing in Dred Scott that free blacks had no Constitutional rights and that slaveowners could move slaves into the Western territories. Finkelman situates this infamous holding within a solid record of support for slavery and hostility to free blacks.
Supreme Injustice boldly documents the entanglements that alienated three major justices from America’s founding ideals and embedded racism ever deeper in American civic life.
Finkelman uses census data and other sources to reveal that Justice Marshall aggressively bought and sold slaves throughout his lifetime―a fact that biographers have ignored. Justice Story never owned slaves and condemned slavery while riding circuit, and yet on the high court he remained silent on slave trade cases and ruled against blacks who sued for freedom. Although Justice Taney freed many of his own slaves, he zealously and consistently opposed black freedom, arguing in Dred Scott that free blacks had no Constitutional rights and that slaveowners could move slaves into the Western territories. Finkelman situates this infamous holding within a solid record of support for slavery and hostility to free blacks.
Supreme Injustice boldly documents the entanglements that alienated three major justices from America’s founding ideals and embedded racism ever deeper in American civic life.
236 pages, Hardcover
First published January 8, 2018
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162 people want to read
About the author
Paul Finkelman
175 books10 followersPaul Finkelman is an American legal historian. He received his undergraduate degree in American studies from Syracuse University in 1971, and his master's degree (1972) and doctorate (1976) in American history from the University of Chicago.
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Displaying 1 - 11 of 11 reviews
July 27, 2020
I started this in fall 2019, but got super busy and didn’t get back to it until this summer. Well worth it. Focused specifically on John Marshall, Joseph Story, and Roger Taney - all Supreme Court justices - and hones in on how they upheld slavery in their tenures on the court.
November 27, 2018
This is an absolutely infuriating disgrace of a history. And you should all read it. That might seem like a strange recommendation, but I hope enough people will read what amounts to an ahistorical and anachronistic screed and note just how weak the arguments are in this work. Roger Taney's reputation is understandable but to associate Marshall and Story with a jurisprudence that "encouraged southerners to attempt to create their own nation" is laughable. Finkelman goes so far as to say that seminal cases like that of the Amistad were not actually important in the fight against slavery. Other glaring mistakes mar the book. The author identified John M. Berrien as being from NC; he was from Georgia. There are books we should keep around because they are so dreadfully wrong. This is one of them.
July 30, 2020
An important book about facing history head-on. John Marshall is one of the Framers I've always admired most, and learning that he not only was he a large-scale slaver, but also unwilling to apply any of his judicial talents to the cause of liberty, was deeply upsetting. I'm also ashamed to say I'd never realized just how pro-slavery Prigg v. Pennsylvania was, because I hadn't thought about it from the perspective of the thousands of free blacks it placed in danger.
Whether you agree with all Finkleman's conclusions or not, the brute facts (particularly about Marshall's slaveholding) don't lie. Anyone who's interested in American law, antebellum history, or legal history should read it.
Whether you agree with all Finkleman's conclusions or not, the brute facts (particularly about Marshall's slaveholding) don't lie. Anyone who's interested in American law, antebellum history, or legal history should read it.
July 12, 2018
In this important reexamination of three of the Supreme Court's leading jurists in the decades preceding the Civil War, legal scholar Paul Finkelman analyzes John Marshall, Joseph Story, and Roger Taney's personal and judicial histories through the lens of their views and jurisprudence towards slavery. Sifting through personal records and letters, as well as critically examining judicial opinions, Finkleman constructs a rounded, contextualized picture of each of these three jurists' personal and professional relationships with slavery. In two of the three cases, the pictures are grimmer than established scholarship has generally held. (Taney's reputation can hardly be darkened much more than it is already.)
First, Marshall, that lion of the Court, is revealed to have been a lifelong slaveholder, and one who moreover owned many more slaves than other biographies have mentioned (confining themselves to only counting his twelve slaves at his city house, though he owned hundreds of slaves who lived on his other properties). His personal investment in slaves as property—and Finkelman demonstrates that he was a perennially active slaveholder, frequently buying, selling, and giving away his country slaves—is reflected in his time on the Court. Finkelman repeatedly cites the damning statistic that Marshall never once wrote an opinion in favor of a freedom suit or in favor of punishing a slave trader, even when the facts of the case, established precedent, and obvious logic seemed self-evident. Instead, Marshall was startingly inconsistent when slavery came before the Court, in ways that always enabled him to find for slave owners. For example, in Wood v. Davis and Mima Queen, Marshall refused to follow Maryland precedent, which would have freed Davis and let Mima Queen bring evidence of her freedom before the court (Justice Duvall, former chief justice of Maryland and expert on its law, wrote a dissent in Mima Queen saying just that, despite being a slaveowner himself). Yet in Telfair v. Stead’s Executors and other cases, Marshall and his Court deferred to state law when it favored slaveowners. Finkelman divides his treatment of Marshall into two chapters, one on freedom suits and one on slave trade cases, and in each chapter charts how Marshall’s bold and sweeping jurisprudence elsewhere faded when slavery came into the picture. Kidnapped Africans snatched up by the illegal slave trade, slaves who argued that they had become free under various state laws and statutes, free black people who were seized in the North and dragged to slavery in the South—all found short shrift before John Marshall, that judicial ‘hero’. Finkelman argues that “this reflected [Marshall’s] conservative views on property, his fear of free blacks, and his huge personal investment in slavery” (220).
Second comes Justice Story. Unlike Marshall, Story was personally opposed to slavery and early in his career wrote passionate denunciations of the institution. However, Finkleman shows how Story’s opposition to slavery gradually became of less vital importance to him than his fervent constitutional nationalism and his urgent desire to placate the Southern states in order to undercut southern extremists, particularly the nullificationists. By handing down pro-slavery judgements like the horrific Prigg v. Pennsylvania, “an overwhelmingly proslavery decision that threatened the liberty of every free black in the United States” (221), Story set up a trade: enhanced federal control and power (which Story hoped would be expanded even further with a stronger fugitive slave law passed by Congress requiring the federal government to assist slavecatchers), in return for which the South received massively pro-slavery judicial judgements, and the northern states’ power to protect their black citizens was eliminated. Finkleman argues that Story “nationalized slavery” (171), putting the liberty of every black person in the North at risk, because despite Story’s own opinions about slavery, the liberty of black people—even free black citizens—was less important to Story than enhancing the power of the federal government while keeping Southern states appeased and happy, thus disarming the nullificationists and averting the specter of disunion. In order to do so, Story not only had to inaccurately represent some state precedents and ignore others, but he also had to invent a fictitious constitutional history in order to pretend that his decision was just. That invented history doesn’t stand up under scrutiny, but it was a necessary fig leaf to give Prigg some semblance of respectability and prevent wholesale outrage in the North.
Finally, Finkleman examines the history of Chief Justice Taney, the proslavery judge who became a pariah even in his own time. Where Marshall’s lionized history may bring his admirers to his defense, and Story’s personal antislavery opinions might be advanced by his advocates, Taney can have few such partisans, and thus this section of Finkleman’s work will no doubt be his least controversial. The Dred Scott decision has been rightfully denounced since its earliest days, and Finkleman examines its history in detail, showing how Taney’s jurisprudence had been leading in its direction for some time previously. Upon being given the opportunity, Taney seized the chance to write the most expansive proslavery judgement he could. As Finkleman puts it, “[Taney] wanted to give the South a sweeping victory by thoroughly vanquishing black rights, racial equality, and antislavery politics.” (208) Finkleman’s broader thrust in this chapter, however, is to place Dred Scott in the wider context of Taney’s jurisprudence, which had a larger goal “of protecting slavery and the South wherever he could,” even if it required him to “flit back and forth from states’ rights to federal supremacy,” eschewing logical and precedental consistency in favor of an ideological campaign. (212)
A short coda follows these three sections. Broadening his scope to include all three jurists, Finkleman argues that Marshall, Story, and Taney “profoundly altered the politics of slavery and the course of national history” (220). Marshall never supported a freedom suit, instead favoring property and slavery and writing “conservative and narrow” opinions in order to do so (221). Story, who early in his career had been vehemently anti-slavery, became from 1822 on at first silent on the subject of slavery and then the author of an incredibly pro-slavery decision in Prigg. Taney, a Southerner and always pro-slavery, “tried to settle all of the nation’s political issues over slavery in favor of the South and human bondage” (223). Together, the actions and jurisprudence of these three jurists, Finkleman argues, created a climate in which the South became accustomed to always winning. With a Supreme Court bending over backwards to give the South everything it desired and take away the North’s power to resist, there was no “jurisprudential balance” (223), and no space for Congress to find a political solution to the looming crisis. (Finkleman wisely does not assert that Congress could have found such a solution, but argues instead that it was not even given the chance, as Dred Scott gave the South “a complete victory” (224) and left no room for maneuver.)
This is an excellent book. I do think that Finkleman’s broader conclusions would have been well served with a longer final chapter; the coda as written is quite short (six pages, of which the bulk is recap), and there simply is not enough space to explore his conclusions at the length they deserve. Like many academic codas, Finkleman’s reads like a precis of the project, giving a summary of the chapters and then advancing some quick overarching arguments. While this is no doubt handy for those who want to get a sense of the book without reading the meat of it, it could have been at least triple the length and depth without even beginning to feel overlong. Splitting the three jurists out into their own separate chapters was the obvious choice (though there is some repetitious content as a result), but bringing them together in the end for at least one substantial unified chapter would have served this book well.
Still, though I might wish this book had been a bit more expansive, and its conclusions lengthier, as written it is still an important contribution to the history of the Supreme Court, and especially to the biographical consideration of these three jurists.
First, Marshall, that lion of the Court, is revealed to have been a lifelong slaveholder, and one who moreover owned many more slaves than other biographies have mentioned (confining themselves to only counting his twelve slaves at his city house, though he owned hundreds of slaves who lived on his other properties). His personal investment in slaves as property—and Finkelman demonstrates that he was a perennially active slaveholder, frequently buying, selling, and giving away his country slaves—is reflected in his time on the Court. Finkelman repeatedly cites the damning statistic that Marshall never once wrote an opinion in favor of a freedom suit or in favor of punishing a slave trader, even when the facts of the case, established precedent, and obvious logic seemed self-evident. Instead, Marshall was startingly inconsistent when slavery came before the Court, in ways that always enabled him to find for slave owners. For example, in Wood v. Davis and Mima Queen, Marshall refused to follow Maryland precedent, which would have freed Davis and let Mima Queen bring evidence of her freedom before the court (Justice Duvall, former chief justice of Maryland and expert on its law, wrote a dissent in Mima Queen saying just that, despite being a slaveowner himself). Yet in Telfair v. Stead’s Executors and other cases, Marshall and his Court deferred to state law when it favored slaveowners. Finkelman divides his treatment of Marshall into two chapters, one on freedom suits and one on slave trade cases, and in each chapter charts how Marshall’s bold and sweeping jurisprudence elsewhere faded when slavery came into the picture. Kidnapped Africans snatched up by the illegal slave trade, slaves who argued that they had become free under various state laws and statutes, free black people who were seized in the North and dragged to slavery in the South—all found short shrift before John Marshall, that judicial ‘hero’. Finkelman argues that “this reflected [Marshall’s] conservative views on property, his fear of free blacks, and his huge personal investment in slavery” (220).
Second comes Justice Story. Unlike Marshall, Story was personally opposed to slavery and early in his career wrote passionate denunciations of the institution. However, Finkleman shows how Story’s opposition to slavery gradually became of less vital importance to him than his fervent constitutional nationalism and his urgent desire to placate the Southern states in order to undercut southern extremists, particularly the nullificationists. By handing down pro-slavery judgements like the horrific Prigg v. Pennsylvania, “an overwhelmingly proslavery decision that threatened the liberty of every free black in the United States” (221), Story set up a trade: enhanced federal control and power (which Story hoped would be expanded even further with a stronger fugitive slave law passed by Congress requiring the federal government to assist slavecatchers), in return for which the South received massively pro-slavery judicial judgements, and the northern states’ power to protect their black citizens was eliminated. Finkleman argues that Story “nationalized slavery” (171), putting the liberty of every black person in the North at risk, because despite Story’s own opinions about slavery, the liberty of black people—even free black citizens—was less important to Story than enhancing the power of the federal government while keeping Southern states appeased and happy, thus disarming the nullificationists and averting the specter of disunion. In order to do so, Story not only had to inaccurately represent some state precedents and ignore others, but he also had to invent a fictitious constitutional history in order to pretend that his decision was just. That invented history doesn’t stand up under scrutiny, but it was a necessary fig leaf to give Prigg some semblance of respectability and prevent wholesale outrage in the North.
Finally, Finkleman examines the history of Chief Justice Taney, the proslavery judge who became a pariah even in his own time. Where Marshall’s lionized history may bring his admirers to his defense, and Story’s personal antislavery opinions might be advanced by his advocates, Taney can have few such partisans, and thus this section of Finkleman’s work will no doubt be his least controversial. The Dred Scott decision has been rightfully denounced since its earliest days, and Finkleman examines its history in detail, showing how Taney’s jurisprudence had been leading in its direction for some time previously. Upon being given the opportunity, Taney seized the chance to write the most expansive proslavery judgement he could. As Finkleman puts it, “[Taney] wanted to give the South a sweeping victory by thoroughly vanquishing black rights, racial equality, and antislavery politics.” (208) Finkleman’s broader thrust in this chapter, however, is to place Dred Scott in the wider context of Taney’s jurisprudence, which had a larger goal “of protecting slavery and the South wherever he could,” even if it required him to “flit back and forth from states’ rights to federal supremacy,” eschewing logical and precedental consistency in favor of an ideological campaign. (212)
A short coda follows these three sections. Broadening his scope to include all three jurists, Finkleman argues that Marshall, Story, and Taney “profoundly altered the politics of slavery and the course of national history” (220). Marshall never supported a freedom suit, instead favoring property and slavery and writing “conservative and narrow” opinions in order to do so (221). Story, who early in his career had been vehemently anti-slavery, became from 1822 on at first silent on the subject of slavery and then the author of an incredibly pro-slavery decision in Prigg. Taney, a Southerner and always pro-slavery, “tried to settle all of the nation’s political issues over slavery in favor of the South and human bondage” (223). Together, the actions and jurisprudence of these three jurists, Finkleman argues, created a climate in which the South became accustomed to always winning. With a Supreme Court bending over backwards to give the South everything it desired and take away the North’s power to resist, there was no “jurisprudential balance” (223), and no space for Congress to find a political solution to the looming crisis. (Finkleman wisely does not assert that Congress could have found such a solution, but argues instead that it was not even given the chance, as Dred Scott gave the South “a complete victory” (224) and left no room for maneuver.)
This is an excellent book. I do think that Finkleman’s broader conclusions would have been well served with a longer final chapter; the coda as written is quite short (six pages, of which the bulk is recap), and there simply is not enough space to explore his conclusions at the length they deserve. Like many academic codas, Finkleman’s reads like a precis of the project, giving a summary of the chapters and then advancing some quick overarching arguments. While this is no doubt handy for those who want to get a sense of the book without reading the meat of it, it could have been at least triple the length and depth without even beginning to feel overlong. Splitting the three jurists out into their own separate chapters was the obvious choice (though there is some repetitious content as a result), but bringing them together in the end for at least one substantial unified chapter would have served this book well.
Still, though I might wish this book had been a bit more expansive, and its conclusions lengthier, as written it is still an important contribution to the history of the Supreme Court, and especially to the biographical consideration of these three jurists.
September 19, 2022
The sections on Marshall and Taney are excellent. Finkelman missed the mark on Justice Joseph Story. For instance, while a Republican, Story was never a partisan or a supporter of Jefferson. During Story's brief stint in Congress, his support for repealing an embargo earned him Jefferson's ire. Jefferson wrote Madison about his vehement opposition to Story's nomination as a Supreme Court justice. Finkelman says that the Amistad case had no impact on domestic slavery and brought to light the horrors of the slave trade, but argues that Story's opinion wasn't antislavery enough. It dealt with the legal issues of the case and justly freed the Africans. I lean more toward Newmeyer's conclusion on the Prigg case, that it emerged more from judicial nationalism than Story's position on slavery. Plus Finkelman neglects to examine the personal liberty laws that states passed to work around Prigg, which in turn left Congress to pass the 1850 Fugitive Slave Act.
I've read some of Finkelman's other work and this is interesting and parts are well argued, but it is occasionally redundant and as noted above with Story, contains some minor errors.
I've read some of Finkelman's other work and this is interesting and parts are well argued, but it is occasionally redundant and as noted above with Story, contains some minor errors.
August 12, 2018
I couldn’t actually finish this book. It’s nearly impossible to get through as the author, who although correct on his premise that the Supreme Court has been led by racists, attempts to read minds, re-states points as nauseum, and pretends that John Marshall’s racism was any worse than his Virginia peers at the time. I completely believe that Marshall discriminated against the enslaved in his decisions and the Court prolonged slavery but to pretend that this is either surprising or any worse than a United States literally built on maintaining slavery is ridiculous.
December 28, 2018
I decided to read this book mostly in response to the John Marshall biography I just finished. After the biography, I felt like I needed to balance things out a bit - learn more about the other side of things. I don't know a lot about the Supreme Court, aside from the big cases most people have heard of, so this was interesting. Slavery was so intrenched in society during the early decades of the Court, that the information presented here doesn't surprise me much at all. That said, while the book was a slow read in places, what was presented is history that needs to be more well known.
March 23, 2019
This book is a great analysis of the racism in this White Supremacist Tyranny disguised as a democracy that us Black American Descendants of Slaves or Non-Immigrant Black Americans are subjected to on the daily basis, by a majority population predominantly White and White ethnic immigrant groups including all descendants of immigrants in the USA who oppose any economic, political or social justice for the Black non-Immigrants who are the direct descendants of American Slaves.
#ADOS
#USTOO
#TANGIBLES2020
#REPARATIONSNOW
#NOBLACKAGENDANOVOTE
#ADOS
#USTOO
#TANGIBLES2020
#REPARATIONSNOW
#NOBLACKAGENDANOVOTE
August 15, 2020
This is a very interesting analysis of the pro-slavery jurisprudence of Justices Marshall, Taney and Story. The critique of Marshall is original and thought-provoking. The analysis of the opinions of Taney and Story are also strong. However, this short book is a slog to get through. It could really use a good editor as it is very repetitive throughout. Nonetheless an interesting read.
March 3, 2022
Serves as a much-needed corrective to the dominant historical view of Marshall, Story, and Taney's personal involvements with slavery. Citations to Southern state court precedents are also illuminating as they show how these justices were willing to give more deference to slavery than the slave-owning judges of the South were.
Finkelman, however, creates a major problem for himself by asserting from the outset that the Constitution is undeniably a pro-slavery document. If that is so, then rulings upholding slavery were technically "correct" given the justice's role of applying the Constitution's meaning. This causes Finkelman to constantly alter the standard by which rulings are judged, without ever advancing a consistent alternative interpretive approach that the justices could have and should have adopted at the time. The analysis too frequently boils down to "this ruling didn't harm slavery enough, and is therefore bad," which does not offer much for a reader to chew on.
Legal historians are often in a bind when they lack formal legal training, as their readers will be expecting more intricate legal analysis than they are able to provide. Supreme Injustice faces that issue, but still contains enough quality research on the history of antebellum slavery jurisprudence to be worth a read.
Finkelman, however, creates a major problem for himself by asserting from the outset that the Constitution is undeniably a pro-slavery document. If that is so, then rulings upholding slavery were technically "correct" given the justice's role of applying the Constitution's meaning. This causes Finkelman to constantly alter the standard by which rulings are judged, without ever advancing a consistent alternative interpretive approach that the justices could have and should have adopted at the time. The analysis too frequently boils down to "this ruling didn't harm slavery enough, and is therefore bad," which does not offer much for a reader to chew on.
Legal historians are often in a bind when they lack formal legal training, as their readers will be expecting more intricate legal analysis than they are able to provide. Supreme Injustice faces that issue, but still contains enough quality research on the history of antebellum slavery jurisprudence to be worth a read.
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August 24, 2018342.73087 F4997 2018
Displaying 1 - 11 of 11 reviews