Supreme Injustice

Slavery in the Nation’s Highest Court

ISBN 9780674051218

Publication date: 01/08/2018

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 slave owners 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.

Praise

[Supreme Injustice] tells the story of three United States Supreme Court Justices…and their ‘slavery jurisprudence.’ Each of these men, Finkelman argues…shared the belief that antislavery agitation undermined the legal and political structures instituted by the Constitution… Finkelman insists that the legacy of Marshall, Story, and Taney had enormous implications…strengthening the institutions of slavery and embedding in the law a systemic hostility to fundamental freedom and basic justice. These are strong allegations… Yet the evidence adds up… Finkelman remains an important voice in legal education and has pushed scholarly conversations about slavery in new directions.

—Allen Mendenhall, Los Angeles Review of Books
Taken together, Finkelman’s accounts of the troubling underbellies of the Marshall, Story and Taney careers offer an unsettling meal…This book is a useful contribution toward a fleshing out of the lives of three men who shaped the bulk of American law in the formative years between our independence and our descent into civil war.

—David Wecht, Pittsburgh Post-Gazette
Supreme Injustice contains no call to topple monuments or to rewrite history books. [Finkelman] simply lays out a convincing case that we must in thinking about our national heritage grapple with the unsettling truths about the humanity we denied slaves and the legal protections we gave their owners.

—Daniel B. Moskowitz, Washington Times
Paul Finkelman is by any account one of our leading historians of American slavery and the law. His incontrovertible and startling findings about the involvement of Justice Marshall in slave owning and selling, and Justice Story’s pro-slavery decision in Prigg v. Pennsylvania, are essential reading for anyone interested in American constitutional development in the antebellum era and its enduring influence on American law and society.

—Sanford Levinson, author of An Argument Open to All: Reading ‘The Federalist’ in the 21st Century
Scholarly, hard-hitting and relevant. Finkelman’s book is a must-read for those who seek to understand the permeating influence of slavery in the development of antebellum law.

—R. Kent Newmyer, author of The Treason Trial of Aaron Burr: Law, Politics, and the Character Wars of the New Nation
Sheds new light on John Marshall’s activities outside the courtroom and his jurisprudence on slavery…Using census data and other sources, Finkelman established that Marshall frequently bought and sold slaves during his lifetime, an uncomfortable reality glossed over or ignored by earlier Marshall biographers.

—Karen Sloane, Law.com