Close
About
FAQ
Home
Collections
Login
USC Login
Register
0
Selected
Invert selection
Deselect all
Deselect all
Click here to refresh results
Click here to refresh results
USC
/
Digital Library
/
University of Southern California Dissertations and Theses
/
Supreme Court decision-making in slavery cases
(USC Thesis Other)
Supreme Court decision-making in slavery cases
PDF
Download
Share
Open document
Flip pages
Contact Us
Contact Us
Copy asset link
Request this asset
Transcript (if available)
Content
SUPREME COURT DECISION-MAKING IN SLAVERY CASES
by
Dave Bridge
A Thesis Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
in Partial Fulfillment of the
Requirements for the Degree
MASTER OF ARTS
(POLITICS & INTERNATIONAL RELATIONS)
August 2007
Copyright 2007 Dave Bridge
ii
Table of Contents
List of Tables iii
List of Figures iv
Abstract v
Chapter 1: Three Competing Theories of Judicial Decision-Making 1
Chapter 1 Endnotes 4
Chapter 2: The Dependent Variable and Case Selection 6
Chapter 2 Endnotes 9
Chapter 3: Operationalization 10
Attitudinalism 10
Legalism 13
Regime 14
Chapter 3 Endnotes 15
Chapter 4: Results 16
Attitudinal: The Model’s Performance 16
Attitudinal: The Cases 18
Legal: The Model’s Performance 25
Legal: The Cases 27
Regime: “Mississippi Law” And “Slave or Not” 32
Regime: “Fugitive Slave” 36
Chapter 4 Endnotes 46
Chapter 5: Conclusion 50
Chapter 5 Endnotes 53 53
Bibliography 54
iii
List of Tables
Table 1: Majority Opinion’s Ideological Direction 12
Table 2: Attitudinal Votes per Justice 17
Table 3: Attitudinal Votes in Groves v. Slaughter 19
Table 4: “3 or More Opinions” Test Results 27
Table 5: Attitudinal and Legal Results for “Fugitive Slave” Cases 37
iv
List of Figures
Figure 1: Attitudinal’s Results 16
Figure 2: Legalism Test Results 27
Figure 3: Fugitive Slave Decisions 43
v
Abstract
This paper looks at Supreme Court decision-making by examining cases that involved
issues of slavery. After developing a population of 14 cases, I test the decisions in light
of the three alternative hypotheses: attitudinalism, legalism, and regime theory. Each
theory explains a different set of cases. The attitudinal model captures cases involving
Mississippi laws governing slavery. The legal model explains suits in which the issue
was whether a black was a slave or not. Finally, the regime account is most important in
fugitive slave law.
1
Chapter 1: Three Competing Theories of Judicial Decision-Making
What factors influence Supreme Court Justices’s decision-making? Do they vote
based on their personal policy preferences? Or are they neutral arbiters who implement
the written law? These are generally the two dominant theories governing the scholarly
literature on judicial behavior.
1
A newer theory has gained momentum in the last decade.
The “regime” account posits that the Supreme Court needs to be viewed in light of its
relationship to the rest of the national governing coalition.
2
Regime theorists say that
votes might be an expression of the Court’s institutional connection to Congress and the
president. This paper incorporates regime elements, as well as the two traditional
theories, into tests of judicial behavior. I use Supreme Court cases involving issues of
slavery to look at whether the Justices decide based on their attitudes, the law, or the
slavery regime.
Perhaps the most parsimonious explanation of judicial behavior is the attitudinal
model. It posits that Supreme Court Justices make decisions solely based on their
political preferences. Jeffrey A. Segal and Harold J. Spaeth, vanguard proponents for the
theory, sum up the theory in a now widely-quoted line from their book The Supreme
Court and the Attitudinal Model: “Simply put, Rehnquist votes the way he does because
he is very conservative.”
3
The idea here is that Supreme Court Justices vote purely the
way they want to vote. There are two main reasons why the Justices can simply vote their
preferences.
4
First, their decisions will not be overturned by another court. They do not
have to make their ruling amenable to someone higher in the judicial hierarchy.
Additionally, the Justices have life tenure and do not have to base their decisions on
securing reelection. Their decision is entirely the consequence of their political
2
orientation. The lack of constraints leads Segal to say that the Justices have “institutional
freedom.”
5
Perhaps the most intuitive explanation of judicial decision-making is the legal
model, which says that Supreme Court Justices judge cases based on the letter of the law.
Ronald Dworkin says that judges do not “pick and choose” laws that seem to support
their vision of politics.
6
Proponents of legalism believe that precedent, stare decisis, and
the Constitution are guidebooks for judicial decision-making. If this is true though, then
how do we get Supreme Court decisions that have vastly different opinions? If judges
rule based on the law, why don’t Justices Scalia and Ginsburg rule the same way in a gay
rights case? Should we “infer that these patterns mean an absence of legal motivations?”
7
Howard Gillman answers that different Justices see the law differently, and they base
their decisions on those visions of the law.
8
Moreover, Michael J. Gerhardt correctly
points out that a large number of Supreme Court cases are unanimous decisions in which
Scalias agree with Ginburgs. “Many unanimous and nearly unanimous opinions,” he
writes, “involve salient issues on which the Justices transcend their ideological
differences to reach agreement about the law.”
9
Regime theory is relatively new to the Supreme Court decision-making debate.
Regime theorists believe that in order to gain a full understanding of the nature of
politics, one has to take into consideration the different institutions that played a role in
shaping the debate and deciding the issue. Karen Orren and Stephen Skowronek label
these institutions “multiple orders,” and argue that there is “intercurrence” among them.
10
That is, we must recognize that various institutions exist simultaneously, their authority is
overlapping, and the relationship between the institutions themselves is just as important
3
as the relationship between an institution and an issue (like that between Congress and
slavery). Howard Gillman lays out the way in which Orren and Skowronek’s framework
applies to the study of the Supreme Court. We can “focus more attention on how legal
institutions figure into the broader interests and agendas of other power holders,” Gillman
writes.
11
Perhaps courts can take on hot-button issues that members of Congress do not
want to deal with.
12
They can legitimize policy,
13
work with existing regimes,
14
and
provide entrenchment for the Old Guard.
15
In short, courts—especially the Supreme
Court—can play a valuable role within the regime.
Michael Klarman’s authoritative work on civil rights in the 20
th
century is one
such application of regime theory. In most instances, he concludes, the Court followed
larger political and social trends. The Justices often decided cases in a way consistent
with public opinion or that politicians would agree with. Change did occur, but it was
often change within the political system that allowed for the Court to alter its
jurisprudence. For instance, the ruling in Plessy v. Ferguson that all but codified
segregation was not that extreme if we look at how most politicians and general public
opinion viewed the matter. Moreover, it should not have come as a huge surprise when
Brown v. Board overturned Plessy. A liberal majority in Congress wanted to extend
more civil rights to blacks, but they could not vote down Southern filibusters or break
Southern officials who chaired key committees.
16
Additionally, with the Cold War taking
place, the US did not want the international community judging the West as intolerant
towards its own people. This Cold War imperative encouraged elites to favor
desegregation.
17
The important point is that the Court’s decisions may have been—and
probably were—affected by other political forces.
4
Chapter 1 Endnotes
1
I should point out that the “strategic” account of Supreme Court decision-making is a
viable theory. It argues that Justices have preferences and they do things to maximize
their self-interest. See Lee Epstein & Jack Walker, The Choices Justices Make
(Washington, D.C.: CQ Press, 1998) and Forrest Maltzman, et al. Crafting the Law on the
Supreme Court: The Collegial Game (New York: Cambridge University Press, 2000).
2
Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National
Policy-Maker” Journal of Public Law 6 (1957): 279-295. Reprinted by Emory Law
Journal in 2001.
3
Harold J. Spaeth & Jeffrey A. Segal The Supreme Court and the Attitudinal Model
(Cambridge: Cambridge University Press, 1993): 65.
4
Other factors are relevant too. For instance, control over the docket ensures that
unambiguous legal cases will not be heard by the Supreme Court. See Spaeth & Segal, as
well as Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal
Model Revisited (Cambridge: Cambridge University Press, 2002).
5
Jeffrey A. Segal, “Supreme Court Deference to Congress: An Examination of the
Marksist Model” in Ed. Cornell W. Clayton and Howard Gillman Supreme Court
Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago
Press, 1999: 237-254.
6
Ronald M. Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University
Press, 1977), 38.
7
Howard Gillman, “What’s Law Got To Do With It? Judicial Behavioralists Test the
‘Legal Model’ of Judicial Decision Making” Law and Social Inquiry (2001): 490.
8
Gillman, “What’s Law Got To Do With It.”
9
Michael J. Gerhardt, “Judicial Decisionmaking: Attitudes about Attitudes” Michigan
Law Review 101 (2003).
10
Karen Orren & Stephen Skowronek, The Search for American Political Development
(Cambridge: Cambridge University Press, 2004): 108-113.
11
Gillman, “Courts and the Politics of Partisan Coalitions,” 1.
12
Mark A. Graber, “The Nonmajoritarian Difficulty: Legislative Deference to the
Judiciary” Studies in American Political Development 7 (1993).
5
13
Dahl.
14
Mark A. Graber, “Federalist or Friends of Adams: The Marshall Court and Party
Politics,” Studies in American Political Development 12 (1998): 249.
15
Howard Gillman, “How Political Parties Can Use the Courts to Advance Their
Agendas: Federal Courts in the United States, 1875-1891,” American Political Science
Review 96 (September 2002): 511-24. & Howard Gillman, “Party Politics and
Constitutional Change: The Political Origins of Liberal Judicial Activism” in Ed. Ronald
Kahn and Ken I. Kersch The Supreme Court and American Political Development
(Lawrence, KS: University of Kansas): 138-68.
16
Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the
Struggle for Racial Equality (New York: Oxford University Press, 2004). See also Lucas
A. Powe, Jr. The Warren Court and American Politics (Cambridge, MA: Belknap Press
of Harvard University Press, 2000).
17
Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy
(Princeton, NJ: Princeton University Press, 2000).
6
Chapter 2: The Dependent Variable and Case Selection
I examined votes cast by Supreme Court Justices in cases that involve issues of
slavery. I chose slavery because of its prominence in American political development.
One would be hard-pressed to find another subject that has played a bigger role in our
history; it encompasses themes of economics, federalism, mutual accommodation,
sectionalism, morality, and humanity. If researching judicial behavior is an important
part of political science, then understanding why judges make the decisions they do on
the most important issues will go a long way in demonstrating a theory’s validity.
I looked at judicial votes in slavery litigation. I only used cases heard and decided
upon by the Court as a whole. I did not include circuit court cases in which the Justice
rode circuit and decided cases in absence of his brethren. Circuit cases might provide a
bias because the ruling only affected that circuit. This might make the decision different
than if the ruling were to apply to the entire Union. For example, it might be easy for a
Justice in the Massachusetts circuit to issue a strong condemnation of slavery, but that
decision might be different if South Carolinians are going to read it and think about its
implications on their lives and property.
There were a couple options in terms of developing a population of cases. One
could look at some of the better-known opinions in slavery cases, like Dred Scott or
Prigg, and look at previous cases that they cite. From there, you could go back even
further by looking cases cited by pre-Dred Scott and pre-Prigg decisions. Of course, this
could very well miss out on some because it is likely that not every case will be
mentioned by Court opinions. Scouring the secondary literature could provide a set of
Supreme Court disputes that could be used as my pool of cases. Unfortunately, a great
7
number of these works focus solely or largely on Dred Scott.
18
This approach might not
capture all cases involving slavery.
I tried what feels like a more comprehensive method. I did a keyword search in
Lexis-Nexis of “slave!” for all Supreme Court cases between 1789 and 1857.
19
It turned
up 247 results. Initially, it looked like a large-N dataset. But a good deal of narrowing
took place, as most of those 247 cases had nothing to do with Constitutional issues. In
fact, a majority of them dealt with simple property disputes or inheritance arguments.
Typical of these cases is Ventress v. Smith, in which both parties claimed the right to
slaves who used to belong to a master who had recently died. This sort of case really
does not belong in this kind of analysis. It is simple dispute resolution that is normally
handled today by our lowest courts. In the late 18
th
and 19
th
century, though, the system
of courts was not as sophisticated as it is now, and the Supreme Court handled this type
of litigation often. Additionally, some cases had to be left out because they were circuit
cases in which the entire set of Justices did not sit. After getting a sense of what the issue
was in each of the cases, I determined that 14 of them were suitable for this analysis.
What seems like a time-consuming and highly idiosyncratic process was actually
fairly quick and, I think, straightforward. I only struggled with two cases in the decision
as to whether or not to include it. I included Rowan v. Runnels because of a curious
passage at the end of Justice Wayne’s opinion that seemed to deal with slavery.
20
Boyce
v. Anderson was the other case. It involved a slave-owner carrying his slaves down the
Mississippi River. Counsel described the ship getting “blown up.”
21
Fortunately,
everyone on board made his or her way to shore safely. They waited on the shore until
the Washington, a commercial steamboat freighter, kindly stopped and agreed to take
8
them on for no charge. Unfortunately, in making their way in a skiff from shore to the
Washington, a group of four slaves drowned. The slave-owner sued the captain of the
Washington, claiming that the crew’s negligence led to the destruction of the slave-
owner’s property. John Marshall penned the opinion, and did specify that slaves were not
the same kind of property as inanimate objects. He wrote, “[a slave] cannot be stowed
away as a common package.”
22
On the face of it, this seems like a case that revolves
around the issue of slaves as property. However, Marshall’s decision in favor of the
steamboat’s captain was largely based on other reasoning. He said that there was no
indication of gross negligence and that the accident was more “inevitable” than a result of
wrongdoing. Moreover, Boyce v. Anderson seems more like a contemporary case
involving “Good Samaritan” law. Marshall explained that the captain had no duty to take
on the stranded passengers, and that he should not be punished for his compassion. I
excluded this case from my study.
Lastly, I should note that every case fell naturally into one of three categories:
“slave or not,” “fugitive slave,” or “Mississippi law.” Seven of the thirteen cases
involved whether a black (or group of blacks) was a slave or not. Four other cases turned
on fugitive slave law and the obligation of the state and federal governments to return
runaway slaves back to their masters. Finally, the other three cases all involved
Mississippi statues dealing with the interstate slave trade.
9
Chapter 2 Endnotes
18
However, some of them, like Wiecek or Swisher, do have accounts of earlier and more
unknown cases. For instance, Wiecek describes an early and obscure Joseph Story circuit
opinion, United States v. La Jeune Eugenie. See William M. Wiecek, “Slavery and
Abolition Before the United States Supreme Court, 1820-1860,” Journal of American
History 65 (June 1978): 34-59, Carl B. Swisher, American Constitutional Development
(Westport, Connecticut: Greenwood Press, 1978): 230-257.
19
Keith Whittington employs the same method in look at judicial review during the
Lochner Era. He uses the keywords “Congress” and “constitution!” Keith E.
Whittington, “Congress Before the Lochner Court” Boston University Law Review 85
(June): 821-858.
20
See pages 19-20 for a fuller explanation.
21
Counsel’s brief in Boyce v. Anderson.
22
Boyce v. Anderson.
10
Chapter 3: Operationalization
Attitudinalism
In order to measure whether the Justices voted based on their preferences, we can
compare the Justices’s preferences (pro- or anti-slavery) with whether they voted in the
same direction. The traditional ways of measuring preferences include using the
appointing president’s party identification and using Segal-Cover scores. The former
method assumes that a Justice will vote the way his appointer would want him to vote.
Following this logic, for instance, we should assume that Chief Justice John Roberts and
Justice Samuel Alito would issue pro-life decisions in abortion cases. The problem here
is that the party structure of the 19
th
century was not as conducive to these kinds of
distinctions, especially in the area of slavery. One group of Whigs might be for slavery
while another stood against it. The same held true for the Democrats. Presidents did
belong to certain parties, of course, but those parties’s national view of slavery is
impossible to decipher because presidents typically said one thing in the North and
another in the South.
23
Segal-Cover scores provide another way for judicial behavior scholars to test
attitudinalism. In 1989, the two authors used content analysis of newspapers to develop a
-1 (conservative) to +1 (liberal) score for a group of Supreme Court Justices. Intuitively,
many of the scores make sense. For example, Scalia is scored -1 and Brennan is +1.
While Segal-Cover scores have been accepted as quite valid, they do not reach back to
the antebellum period. Indeed, no pre-New Deal Justice is rated.
To measure preferences, I used each Justice’s home state as a proxy for
determining his views on slavery. If a Justice came from a free state, I assumed he was
11
anti-slavery and that he would vote as such in cases that centered on slavery. This Justice
was coded “anti-slavery.” Conversely, if a Justice came from a slave state, I assumed he
was pro-slavery and that he would vote the other way in the same cases. This Justice was
coded “pro-slavery.” I think this proxy passes the initial “gut check.” Most people who
came from free states were opposed to slavery, even if they were racist and against black
rights in general. On the other hand, most of those from slave states supported the
peculiar institution.
At an analytical level, too, the proxy makes sense. The institutional setup of the
Court in the early republic and (especially) antebellum periods almost guaranteed that
Justices from free states were ideologically opposed to slavery and Justices from slave
states were ideologically aligned with slavery. During that time, Supreme Court Justices
had to ride circuit and serve as a court of appeal in a particular section of the country.
This job took up a considerable amount of time, and most Justices rode circuit in their
native state so that the Judiciary could function while the Justices could be close to
home.
24
Whatever decision a Justice made—either while on circuit on in Washington—
he was going to have to go home at some point and face the locals. Perhaps they were
more likely to vote pro- or anti-slavery because of this. More importantly, as the Union
matured, the South saw the circuit system as a way to protect slavery. The Judiciary Act
of 1837 split the country into nine circuits, with five of them in the South. If Justices
were appointed to the Court based on the circuit they represented, Dixie could always
expect to have a majority of Southerners on the Bench. Their insistence on the necessity
of a Southern majority was rooted in their subsequent ability to protect slavery through
the Court.
12
The second piece of the puzzle that needed decoding was the direction of the
decision in each case as “pro-slavery” or “anti-slavery.” Most were easy to decipher, but
I had trouble with one. I chose not to code the 1825 case, The Antelope, as the issue
involved was too complex to be captured by either category. The rest, though, given the
issue involved, lent themselves to pretty easy coding assignments. United States v. The
Ship Garonne is exemplary. In 1837, the Court heard a case involving Priscilla, a slave
in Louisiana who was taken to France in 1831 and then brought back into the US in 1835.
Priscilla’s lawyers put forward that since the introduction of slaves into the country had
been banned since 1808, Priscilla’s entry into the United States as a slave was illegal.
Therefore, they argued, Priscilla was free. In this case, a ruling that determined Priscilla
was free would be coded “anti-slavery” and a ruling that determined she was a slave
would be coded “pro-slavery.” I coded Garonne “pro-slavery” because the Court ruled
that the statute that banned the importation of slaves after 1808 was not relevant here
because that law meant to stop the slave trade, not keep people from taking their slaves
with them when they wanted to go to another country.
25
Table 1 illustrates the cases and
their codings.
Pro-slavery Anti-slavery
Lagrange v. Chouteau Menard v. Aspasia
US v. The Ship Garonne US v. The Amistad
Groves v. Slaughter Rhodes v. Bell
Prigg v. Pennsylvania
Jones v. Van Zandt
Rowan & Harris v. Runnels
Strader v. Graham
Rowan v. Runnels
Moore v. Illinois
Norris v. Crocker
Table 1. Majority Opinion’s ideological direction
13
Legalism
For one way of measuring the legal model, I drew on a recent article by Thomas
M. Keck that looks at Supreme Court decision-making in cases where the Court utilized
judicial review.
26
Talking about the modern Court, Keck explains that if the
“institutional” (i.e., legal) account is correct, then we should find liberal and conservative
Justices voting together in the majority. “If the justices never do so,” he writes, “we
would have good reason to be skeptical of any claim that they are acting in distinctive
judge-like ways.”
27
He separates the Justices into three categories: liberal, moderate, and
conservative. He codes the majority coalition as “mixed” if it includes at least one liberal
and one conservative. This categorization is supposed to show the importance of the law.
There is a problem when translating this scheme onto my North/South proxy. Whereas
this scholar has a three-parted system, mine is dichotomous. To compensate, in this
section, I use Justices from border states as my equivalent to his “moderates.” Thus,
Justices from Michigan, Maine, New Hampshire, Vermont, Massachusetts, Connecticut,
New Jersey, Pennsylvania, Ohio, Indiana, Illinois, Iowa, Wisconsin, California,
Minnesota, and Rhode Island were coded as “North.” Justices from Missouri, Delaware,
Maryland, Virginia, and Kentucky were coded as “Border.” And Justices from North
Carolina, Tennessee, South Carolina, Georgia, Alabama, Mississippi, Louisiana,
Arkansas, Florida, and Texas were coded as “South.” If the majority contained at least
one Northern and one Southern Justice, then I labeled it “mixed,” which indicates that
legal factors might have been at play.
A more stringent test of the legal model can be applied. If Gerhardt is right in
asserting that unanimity or near-unanimity is an indication of the law’s impact, then
14
looking for that consensus should be a good way to measure whether the law played a
role in the case. That is, if all the Justices agreed on a decision—especially in light of
their geographic and supposed ideological differences—then maybe we can say that the
doctrine was so clear, that the Justices’s hands were bound by the law. I use this notion
as a second, tougher way to test the legal model. I posit that if a case produced general
consensus from the Justices, then maybe legalism was at play. I measure consensus by
looking for decisions that were decided either unanimously or with only one dissenting
vote.
28
For instance, in cases where nine Justices sat, it would take a 9-0 or 8-1 majority
to pass this test. In cases with seven Justices, a 7-0 or 6-1 vote was needed. If the Court
achieved consensus, then maybe the law played a major role. If more than one Justice
dissented, then the law could be said not to have been a factor.
Regime
In trying to capture whether the Court was part of a regime, I engage in an
historical-interpretive account of slavery. Klarman’s methodology is essentially a
template for capturing this explanation of decision-making. He sets up the context in
which cases dealing with civil rights came to the court. Then he describes the cases and
the Court’s subsequent decisions. Finally, he synthesizes context and decisions, looking
to see if the historical backdrop affected the outcome in the Court. I follow the same
strategy with the issue of slavery.
15
Chapter 3 Endnotes
23
For a great explanation of the coalitions on the issue of slavery, see Michael F. Holt,
The Fate of Their Country: Politicians, Slavery Extension, and the Coming of the Civil
War (New York: Hill and Wang, 2004).
24
David M. O’Brien, Storm Center: The Supreme Court in American Politics (New
York: W.W. Norton, 2003).
25
United States v. The Ship Garonne.
26
Thomas M. Keck, “Party, Policy, or Duty: Why Does the Supreme Court Invalidate
Federal Statutes?” American Political Science Review 101 (May 2007): 321-338.
27
Keck, 323.
28
The selection of the margin of consensus may seem arbitrary, but there are really only
three choices: unanimity, all-but-one majorities (like 8-1), and all-but-two majorities (like
7-2). A 6-3 majority is a large winning margin, especially with more recent Supreme
Courts. However, the switch of one vote would be a 5-4 majority, which hardly captures
the kind of legal consensus I aim for in this part of the analysis. If I were to change from
an all-but one majority to an all-but-two, it would only change the results of one case
(Rowan v. Runnels).
16
Chapter 4: Results
This part of the paper presents the results I gathered based on the designs laid out
in the preceding section. Each theory explains some of the cases.
Attitudinal: The Model’s Performance
In general, the attitudinal model did not perform as well in slavery cases as it has
in previous runs.
29
On the whole, 60 (55.6%) of the decisions follow the attitudinal
model while 48 (44.4%) of them do not. On the surface, it would seem that the
attitudinal model is very relevant as it explains a majority of the cases. However, random
chance dictates that it would explain half of them anyway. The model does only 5.6%
better than probability would predict.
Figure 1. Attitudinal’s Results
Half the cases are just as well explained by chance as the model. For example, in
United States v. The Ship Garonne, it predicted only three of the seven decisions
correctly. Six other cases show the model getting it right with only half the Justices. In
sum, chance would do just as well with these cases. Additionally, there are two cases in
which the model does significantly worse that probability. This leaves us with four cases
in which the model performed better than chance; their aggregate totals show a 75%
17
success rate for attitudinalism. So perhaps Justices voting their preferences explain a
third of our cases. Maybe a better way to analyze the data is to see if attitudes were more
prevalent with some of the Justices. Table 2 indicates that some Justices seem to vote
their preferences significantly more often than others. The model predicts Taney,
Wayne, Catron, McKinley, and Daniel’s votes correctly a combined 80% of the time. It
predicts Baldwin, Nelson, Woodbury, and Grier incorrectly a combined 90% of the time.
The difference between probability’s and attitudinalism’s predictions is nil for Marshall,
Johnson, Duvall, Story, Thompson, McLean, Barbour, and Curtis. It looks like
attitudinalism explains some of the Justices’s behavior, especially those from
slaveholding states in the 1840s and 1850s.
30
Justice Attitudinal votes Nonattitudinal votes
Marshall 1 1
Johnson 1 1
Duvall 1 1
Story 4 3
Thompson 3 3
McLean 7 6
Baldwin 2 5
Taney 9 2
Wayne 9 2
Barbour 2 1
Catron 8 2
McKinley 8 2
Daniel 6 2
Nelson 0 6
Woodbury 0 3
Grier 0 6
Curtis 1 2
Table 2. Attitudinal Votes per Justice
When broken down by the issue involved, a closer inspection, I think, reveals that
only three cases are best explained by this hypothesis. The “slave or not” cases did not
fare well in light of attitudinalism. In fact, not a single one was better explained by
18
probability than the model. “Fugitive slave” cases did okay, forecasting over 60% of the
cases correctly, which is still not as good, though, as the “Mississippi law” cases. I feel
policy preferences played a significant role in these three cases.
Attitudinal: The Cases
In 1832, Mississippi had the following article in its state constitution: “The
introduction of slaves into this state, as merchandise, or for sale, shall be prohibited, from
and after the first day of May, eighteen hundred and thirty-three: Provided, that the actual
settler, or settlers, shall not be prohibited from purchasing slaves in any state in
this Union, and bringing them into this state for their own individual use, until the year
eighteen hundred and forty-five.”
31
So after May 1, 1833, no one could bring slaves into
Mississippi and sell them; however, one could still buy slaves somewhere else and bring
them into Mississippi until 1845. Sometime after the former date, R.M. Roberts imported
a slave into Mississippi and sold it to John W. Brown. They both signed a contract
saying that Brown would pay Roberts at a later date. When payment was not delivered,
Roberts sued Brown, who claimed that the transaction was unconstitutional under
Mississippi law. Groves v. Slaughter eventually made its way up to the Supremes.
32
They determined that the issue in question was whether the constitutional provision was
self-enforcing or whether it was a directive to the state legislature to create legislation to
enforce to it. The Court said it was the latter, and since there were no laws enforcing the
provision, the sale was of the slave was legal and Brown owed Roberts the money.
If a Justice voted for the defendant, then he would be voting to obstruct the flow
of slaves into Mississippi, which strikes me as an “anti-slavery” decision. If a Justice
voted for Roberts, then he would be voting to continue the flow of slaves into the state. I
19
labeled that kind of decision as “pro-slavery.” Based on these characterizations, we get
the following results:
Justice Home State Predicted Vote Actual Vote Correct?
Taney Maryland Pro-slavery Pro-slavery Yes
Story Massachusetts Anti-slavery Anti-slavery Yes
Thompson New York Anti-slavery Anti-slavery Yes
McLean Ohio Anti-slavery Anti-slavery Yes
Baldwin Pennsylvania Anti-slavery Pro-slavery No
Wayne Georgia Pro-slavery Pro-slavery Yes
Barbour Virginia Pro-slavery Died
Catron Tennessee Pro-slavery Indisposed
McKinley Alabama Pro-slavery Pro-slavery Yes
Table 3. Attitudinal Votes in Groves v. Slaughter
Except for Henry Baldwin, every Justice hailing from the North voted for the law
banning the importation. Every Southern Justice—without exception—voted against the
ban. Following the guidelines laid out above, eight of the nine Justices in the case voted
their preferences. On its face, the attitudinal model looks pretty strong in Groves. It is
strengthened even further if we go beyond just the final votes and look at the text of some
of the opinions. For instance, McLean’s predicted and actual vote were anti-slavery. If
there was any doubt about the validity of the proxy or coding procedure for McLean in
this case, reading his dissent would quell it. For starters, it refers to slavery as “evil.”
33
It
also explains that slaves should not be Constitutionally viewed as property. He writes
that the section of Article I that deals with taxes and representation refers to “three-fifths
of all other persons” (emphasis added). McLean adds that the Constitution’s fugitive
slave provision also indicates that slaves are more than just property. He points out that
Article IV says that any “person” who runs away shall be delivered back to the rightful
party. As such, it does not fall under Congress’s commerce power, and the Legislature
cannot regulate slavery. It is up to the states, making Mississippi’s ban a matter of local
20
rule.
34
It seems a little odd that McLean—who is considered pretty nationalistic—would
rule for states rights. This might be an indication that he used states rights as a
convenient way to support Mississippi’s attempt to hinder slavery. If so, that seems like
a pretty attitudinal move.
Baldwin’s opinion responds to McLean’s characterization of slaves as persons.
He states, “I feel bound to consider slaves as property.” He says that slaves were
property and therefore subject to Congress’s interstate commerce authority. Perhaps this
is an example of a Northerner being more nationalist and wanting to expand the power of
the federal government. Perhaps Baldwin’s decision has nothing to do with slavery. But
if this were the case, then how would one explain Baldwin’s statements in his opinion
saying that slaves moving through free states remain slaves at all times? One answer
might also fit with his federalist views: the general government protects property at all
times, regardless of the space presently occupied by the property holder. This seems like
a plausible justification for an antebellum Northerner. But why include the statement at
all? The case did not turn on this issue. In any case, it is an explicit statement of judicial
protection for slaveholders. And even though the model wrongly predicted Baldwin’s
decision, this seems to be an indication that this case appears to be more about slavery
than federalism.
Taney’s stance could also be characterized as nonattitudinal (at least in terms of
attitudes towards slavery) in that it seems somewhat to turn on federalism too. He pretty
much agrees with McLean’s stance that slavery belongs to the states. He writes, “The
power over this subject is exclusively with the several states; and each of them has a right
to decide for itself, whether it will or will not allow persons of this description to be
21
brought within its limits, from another state, either for sale, or for any other purpose.” It
is not a big surprise when the Jacksonian Chief Justice records, “the action of the several
states upon this subject cannot be controlled by Congress, either by virtue of its power to
regulate commerce, or by virtue of any other power conferred by the Constitution of the
United States.” Local rule was a central tenet of the Democratic Party during this
period—especially to a Marylander like Taney. The argument could be made that his
decision in Groves is more a result of views on the nature of the Union rather than on
slavery. If this were true, though, then why did Taney vote that the Mississippi provision
was not self-enforcing when the spirit of the law was meant to halt the sale of out-of-state
slaves? Put another way, if Taney believed so strongly in states rights, why didn’t he let
Mississippi rule herself? I think the answer lies in the fact that he wanted slavery to
flourish more freely in Mississippi. His vote in Groves seems like a reflection of that.
On the other hand, at least one vote in Rowan & Harris v. Runnels does seem to
be an expression of views on federalism. The background on the case is as follows:
Rowan and Harris had sold slaves to Runnels in Mississippi after May 1, 1833 for
$8671.33. At issue was the same Mississippi law, except now, Mississippi courts had
issued their opinion as to whether or not the article was self-enforcing, saying it was. At
the Supreme Court, counsel for Rowan and Harris argued that the precedent laid down in
Groves should be upheld. Runnels said that now that the state court had made a ruling,
the Court should adopt it as Mississippi has the right to rule herself. In addition, the
defense said that the Court might want to consider overruling Groves considering two
Justices did not sit in the case and the Court was split 4-3 in 1841.
35
The Court did not
take this advice. In an 8-1 decision, Taney wrote, “The question presented in this case is
22
precisely the same with that decided by this court in the case of Groves v.
Slaughter…Acting under the opinion thus deliberately given by this court, we can hardly
be required, by any comity or respect for the state courts, to surrender our judgment to
decisions since made in the state.”
36
The decision made sense for the Justices from the slaveholding states, at least
according to the proxy I use. The attitudinal hypothesis does not really explain the four
Justices from free states, though. It especially does a poor job of indicating why McLean
voted the way he did. If McLean had dissented in Groves, why did he consent to the
majority opinion in “Groves, Part II?” Two rationalizations seem plausible—and these
apply to all the Northern Justices. First, he could have voted his attitude on federalism,
thinking that the Supreme Court did not have to adhere to the rules of inferior courts (i.e.,
Mississippi courts). Second, he might have thought the issue to be settled law and his
vote was a function of legalism. That is, whether John McLean liked it or not, Groves
wrote into law that Mississippi’s article was not self-enforcing. When it came before the
Court again, he simply implemented that law. Segal and Spaeth design a similar study on
judicial decision-making by looking to see if Justices who dissented in Case X dissent
again when the same exact issue comes back to the Court. Segal and Spaeth say that if a
Justice votes the same way in the second case, he is voting his attitude; if he votes the
direction of the majority opinion in the first case, he is voting according to the law.
37
As
maintained by Segal and Spaeth, McLean voted based on the law.
In any case, the prevalence of judicial attitudes breaks down neatly by section:
Southerners voted attitudinally; Northerners did not (unless they voted on federalism).
The outlier in the case is Justice Daniel, a Virginian who dissented, and thereby took on
23
the “anti-slavery” view. If we examine his dissent closely, though, we find an
unexpected reasoning behind his decision. Daniel writes, “Since the decision in Groves
v. Slaughter, decisions of the supreme court of Mississippi, giving an interpretation of the
constitution of that state, have become generally known—they are familiar, unequivocal,
uniform, numerous…if these expositions establish the meaning of the constitution of
Mississippi, such meaning must have relation to the period of the consummation of that
instrument.”
38
He deduces that since Mississippi has decided what the Mississippi law
means, it is not an issue for the Court to decide. This does not strike me as a
nonattitudinal vote. It strikes me as an inappropriate addition to the N of this study since
he felt the case was not about slavery. To be sure, Daniel did not vote “anti-slavery” as
much as he voted “states rights.”
Oddly, Rowan and Runnels appeared before the Court again in 1851.
39
This time,
the dispute centered on contract law. In a countersuit move that seems almost normal by
21
st
century standards, Runnels sued Rowan, claiming that the original contract (the same
one the Court upheld four years earlier) violated a statute that put restrictions on
importing slaves into the state. Keep in mind, that under Mississippi law, one could still
bring slaves into the state as long as they were purchased outside of it. However, the
state legislature put some limits on this. Of concern in this case, was a clause that
required a buyer to obtain “a previous certificate, signed by two respectable freeholders
in the county and state from which the slaves were brought, and signed and
acknowledged before the clerk of the said county.”
40
The “seller or purchaser” who
violated this provision had to pay $100 for each slave imported.
41
When Rowan & Harris
had sold the slaves to Runnels in 1840, they had not included the certificate. Runnels
24
argued the contract was void. Thus, while he might be stuck with the $100 fine, it was a
far cry from the original $8671.33 that he owed. And although the contract might be
void, Runnels argued his ownership in the slaves persisted. In sum, he got to keep the
slaves for only $100.
When the lower court ruled in favor of Runnels, Rowan appealed to the
Supremes. Wayne delivered the opinion of the court. He asks: If the legislature passes a
prohibition on Y and/or a penalty for prohibition on Y, and a contract includes Y, is that
contract void? Or are the parties just in trouble with the law, with the contract still
standing? Wayne says that most of the time, the contract will be void, because that was
the intent of the legislature. However, in this case, Wayne ordered Runnels to pay
Rowan the original amount. “Having the power to retain the negroes,” the opinion
announces, “he would pay the fine from their labor [$100], or would get them for only so
much less than he bargained to give for them…the contract is not void, and the defendant
can take nothing by his pleas.”
42
At first glance, the case really seems to be about contract law, and that slavery is
just an auxiliary that drives the main issue. However, in looking a little deeper into the
majority’s opinion and breaking down the votes, I think slavery was right at the forefront
of Rowan v. Runnels. For starters, towards the end of Wayne’s opinion, a curious
statement appears: “We have said, more than once, and now say again, that the clause in
the [Mississippi] constitution of 1832, prohibiting the introduction of slaves into the state
as merchandise, was inoperative to prevent it until the legislature acted upon it. We have
read all that has been officially written in opposition to that conclusion without having
our confidence in its correctness at all shaken.” Why include this statement if the case
25
really turned on contract law? Furthermore, the dissents by McLean and Curtis go
unjustified. That is, neither wrote a dissenting opinion. They disagreed with the
majority, but did not explain the source of their disagreement. This makes it hard—if not
impossible—to tell why they dissented, but if we assume the case was truly about
slavery, then the attitudinal model would explain these dissents.
Legal: The Model’s Performance
One way I tested the legal model was by seeing if the majority opinion had at
least one Justice from the North and South. If the Justices representing different
geographic units and assumedly different ideological viewpoints, then maybe we could
say that the law was influential. When applied, this test explained every single Court
decision. Even Groves v. Slaughter and Rowan v. Runnels saw Northern and Southern
Justices uniting in the majority. This could say that legalism is an overpowering
independent variable. If Justices from different regions tallied in the same column on so
many different cases, then it must have been the law influencing their votes. More likely,
it says that the testing procedure was flawed and did not portray what it was trying to
capture.
Maybe making this test tougher would give more believable results. I employed
the same type of assessment a second time, with the stipulation that both a majority of
both Northern and Southern Justices had to sign on to the opinion of the Court.
43
Employing this procedure, 12 of the 14 cases still fell under the legal model. Groves v.
Slaughter and Rowan v. Runnels are the only two in which a majority of Justices from
both sections did not endorse the majority’s opinion. (The fact that these are the only two
outliers probably strengthens the attitudinal’s claim on these cases.) Though I think that
26
there is something to these results (especially if we follow the latter test), maybe there is
yet a better way to operationalize the concept. In the final method, I looked for general
consensus though unanimous or all-but-one (e.g., 8-1) majorities. Granted, the practice
of a case involving multiple opinions had not yet evolved into what it looks like today.
David O’Brien writes that since 1950, “There are approximately ten times the number of
concurring opinions, four times more dissenting opinions, and seven times the number of
separate opinions in which the Justices explain their personal views and why they
partially concur in and/or dissent from the Court’s opinion.”
44
This was not the case in
the 19
th
-century Court. “Marshall…believed that unanimous decisions would build the
Court’s prestige and legitimacy,” O’Brien notes. “He therefore discouraged dissenting
opinions…The Taney Court…generally emulated that practice and consensus became an
institutional norm.”
45
Nevertheless, the Justices did dissent on some cases, and it still
gives us a better way to measure legalism.
This test demonstrated a high success rate for legalism as 12 of the 14 cases had
unanimity or an all-but-one majority. Again, the two outliers were Runnels (two
dissents), and Groves (three dissents). This is further indication of their reliance on
attitudinalism. Of the remaining twelve cases, eight were unanimous, and four had only
one dissent (Amistad, Prigg v. Pennsylvania, Moore v. Illinois, and Rowan & Harris v.
Runnels). Six of the eight unanimous cases were “slave or not” cases (the other two were
“fugitive slave” suits). Altogether, seven of the twelve unanimous or all-but-one cases
involved “slave or not” issues. When examined in more detail, the law does seem to play
a role in these.
27
Legal: The Cases
All of the Marshall Court cases included in this study seem best explained by the
legal model. The earliest case, The Antelope, is the hardest to understand in light of the
legal model, even though the Court was unanimous. It involved a group of slaves taken
by a Spanish ship, which was eventually captured by an American vessel and brought
before the US judicial system. The litigation actually took years five years until the
Supremes heard the case. In that time, 124 of the 281 slaves involved in the case had
died.
46
The Court ruled that some of the slaves belonged to American slaveholders, but
most were sent back to Africa. The complexity of the decision—to return some slaves,
but not others—could be an indication of reliance on the law. The case could also be an
anomaly and difficult to explain. Indeed, I found it so difficult to categorize the Court’s
ruling as pro- or anti-slavery, that I left it out of the attitudinal analysis. The other five
“slave or not” cases with only one or two opinions are easier to explain in terms of
legalism.
Description # of cases
Unanimous or all-
but-one
8
All-but-one 4
All-but-two-or-more 2
Table 4. “3 or More Opinions” Test
Results
Figure 2. Legalism Test Results
28
In the late 1820s, Pierre Carre had a slave that he wanted to sell. Pierre Chouteau
wanted to buy that slave, but Carre did not want to sell to someone who lived in Carre’s
hometown (St. Louis). Carre tried to sell to Frances Menard, an Illinoisan. After Menard
turned down the opportunity, he told a friend who happened to be looking for field hands,
one Pierre Chouteau, that Carre had a slave for sale. When Chouteau told Menard of
Carre’s insistence on not selling to someone in St. Louis, the two friends devised a
scheme. Menard bought the slave, took him to Illinois for a while, and then sent him to
Missouri to work for Chouteau. The slave claimed that his time in Illinois made him free.
Since the Northwest Ordinance prohibited slavery in the Northwest Territory (e.g.,
Illinois), he claimed freedom. The Court said that it did not have jurisdiction because no
one violated any act of Congress. It said that the judgment of the Missouri courts—that
the slave was still a still a slave—should be affirmed.
47
A year after Menard played the role of middleman, he took center stage as the
plaintiff in Menard v. Aspasia. Aspasia’s mother was a slave in Illinois for a Frenchman
before the passage of the Northwest Ordinance. In 1821 (post-Northwest Ordinance),
Menard bought Aspasia, and handed her over to his son-in-law, who lived in Missouri.
Six years later, she returned to work for Menard. Aspasia sued, saying that the Northwest
Ordinance granted her freedom so long as she was in Illinois. The Missouri state
supreme court agreed. In front of the US Supreme Court, Menard argued that slaves at
the time of the Northwest Ordinance were not emancipated by its passage. Moreover,
their offspring were born into slavery, Menard said. The Court agreed with the former,
but deferred on the latter, claiming it did not have jurisdiction in the case because the
29
Missouri state supreme court applied the law in a way that did not allow the Court to hear
the case under Section 25 of the Judiciary Act of 1789.
48
A pair of maritime cases in 1837 and 1840 presented the Supreme Court with
“slave or not” questions. US v. The Ship Garonne interpreted the post-1808 ban on the
introduction of slaves as prohibiting the international slave trade. The Court ruled that
the legislation did not prohibit Americans from taking their slaves abroad and bringing
them back into the Union.
49
United States v. Amistad involved a group of Africans taken
from their home by a Spanish vessel and sent to Cuba to be sold as slaves. They reached
Havana, then set sail for another Cuban port. On their way there, the Africans freed
themselves, took over the ship, and killed all but two crewmembers, who were kept alive
to help steer the ship back to Africa. The two sailors fooled the Africans and landed the
ship in New York, where the blacks were taken prisoner and put on trial. A treaty
between the US and Spain stipulated “that all ships and merchandise, of what nature
soever, which shall be rescued out of the hands of any pirates or robbers, on the high
seas, shall be brought into some port of either state, and shall be delivered to the custody
of the officers of that port, in order to be taken care of and restored entire to the true
proprietor.”
50
The two Spaniards claimed that their ship was robbed of the slaves,
apprehended by the US, and that the slaves should be returned to them under the treaty.
The Court disagreed. Joseph Story wrote the opinion, saying that when the two
countries made the treaty, they did not specify humans as “merchandise.” He said that
the Africans were not slaves; they had been kidnapped from their home. “It is plain
beyond controversy,” Story tells, “if we examine the evidence, that these negroes never
were the lawful slaves of Ruiz or Montez [the spared crewmen]…They are natives of
30
Africa, and were kidnapped there, and unlawfully transported to Cuba, in violation of the
laws and treaties of Spain.”
51
Only Justice Baldwin dissented in the opinion.
The final “slave or not” case, Rhodes v. Bell, affected the status of slavery in the
District of Columbia. A slaveholder purchased a slave in Alexandria County, a section of
Washington, D.C. that used to be part of Virginia. He transported the slave to
Washington County, a section of D.C. that used to be a part of Maryland. The slave sued,
claiming that a series of laws—if logically assembled—granted him freedom. Here is the
reasoning: immediately after the creation of the Capital, Congress passed a law declaring,
“that the laws of the state of Maryland as they now exist, shall be and continue in force in
that part of the said district which was ceded by it.”
52
In essence, the laws that existed in
the part of Washington, D.C. that used to belong to Maryland would still in force. Before
the capital came to the Potomac, Maryland had passed a law stating: “it shall not be
lawful from and after the passing of this act, to import or bring into this state, by land or
water, any negro, mulatto, or other slave, for sale, or to reside within this state; and any
person brought into this state as a slave contrary to this act, if a slave before, shall
thereupon immediately cease to be the property of the person or persons so importing or
bringing such slave within this state and shall be free.”
53
It was designed to halt the
importation of slaves into the state. The slave in Rhodes v. Bell argued that under
Congressional dictum, the Maryland statute was still in effect. Moreover, his
transportation from another geographic unit made him free. The Court agreed.
Strader v. Graham is the final “slave or not” case. Graham, a Kentuckian, owned
three talented slaves whom were sent to Ohio and Indiana (both free states) to improve
their musical skills. The slaves returned to Kentucky, but with the help of Jacob Strader,
31
they soon escaped. Graham sued Strader for compensation. The abolitionist argued that
the slaves’s time in free territory made them free, even after they returned to Kentucky.
The Court dismissed Strader, saying that it did not have jurisdiction over the case
because it was a matter for Kentucky to decide. Taney, who spoke for the majority,
wrote, “It was exclusively in the power of Kentucky to determine for itself whether their
employment in another state should or should not make them free on their return.”
54
Even though there were three opinions, every Justice agreed on this point. The
disagreement comes in this: farther down in his opinion, Taney hints that the Northwest
Ordinance was not really in force in 1851. McLean and Catron disagreed, and their
concurrences were both directed at pointing out the importance of the Ordinance. When
it came to the issue at hand, though, all nine Justices agreed.
These seven Supreme Court cases had a total of ten opinions: the majority opinion
in each, Baldwin’s dissent in United States v. Amistad, and McLean & Catron’s
concurrences in Strader v. Graham. It seems that in cases where the issue was whether
or not a black was a slave, the Court agreed with remarkable consensus, especially when
we consider the nature of the Strader concurrences. This could be an indication that the
law was the most important variable in this type of litigation. Attitudinally, these cases
do not make much sense. Take Justices Barbour and McLean’s votes in Garonne and
Amistad. Barbour was a Virginian who held many slaves; McLean was an abolitionist
from Ohio. If they each voted their preferences in Garonne, we would expect Barbour to
enslave Priscilla and McLean to set her free. Barbour delivers, but McLean also votes
pro-slavery. In Amistad, we would expect Barbour to declare the blacks slaves and
McLean to grant them freedom. In this case, McLean follows the model, but Barbour
32
votes anti-slavery. The reasoning for these votes could be that the doctrine was so clear
in Garonne and Amistad that McLean and Barbour felt obligated to implement the law
rather than vote their respective preference.
Regime: “Mississippi Law” & “Slave or Not”
The regime hypothesis of Supreme Court decision-making says that decisions
must be examined in light of other power-holders. This theory is difficult to capture with
the more systematic methods employed in the testing of the attitudinal and legal models.
The inherent “messiness” of regime theory leads the researcher to engage in historical-
interpretive accounts. Going with this approach, I separated the cases into the categories
already mentioned: “slave or not,” “fugitive slave,” and “Mississippi law.” By tracking
American politics, we can determine if the Court fell within a given regime.
The Mississippi cases seem to be a bad fit for regime theory. I see two possible
explanations for Groves v. Slaughter; neither strikes me as very sound. Both
rationalizations carry the same assumption: that Groves gave the Court the opportunity to
affect the slavery debate in dramatic ways. David Lightner sums this up nicely, “Despite
the fact that Groves v. Slaughter confronted the Court squarely with the question of the
status of the interstate slave trade…the Court once again avoided making any official
determination upon the crucial issues of exactly what Congress could or could not do,
and of what states could or could not do.”
55
In order to understand Groves in light of
regime theory, the assumption goes, we must look at what wasn’t decided. This is a fair
strategy to use. Orren and Skowronek say that one the key points of studying American
Political Development is to look for change. In that search, the researcher can also
explore what did not change.
56
33
Given this condition, a regime defense of Groves is that the regime did not want
the Court in on the game. The Court did issue a pro-slavery decision that forced
Mississippi to act if she wanted to obstruct the introduction of slaves into her borders.
But the Justices also stayed away from what Lightner refers to as the “crucial issues.”
Maybe the Court avoided the hot topics because the rest of the regime felt it was an issue
to be dealt with by the elected branches.
This seems somewhat implausible, though, given Graber’s “Nonmajoritarian”
theory, which says that legislators will pass divisive issues to the courts.
57
I think this
strand of regime politics is probably the most appropriate for a case like Groves v.
Slaughter. Indeed, Graber uses Dred Scott, which covered issues left open by Groves, as
a case study in which the Legislature handed off the issue of slavery to the Court so that
Congressmen would not have to split their electoral coalition. Now, a lot happened
between Groves (1841) and Dred Scott (1857). The US fought and won the Mexican-
American War. The Compromise of 1850 passed through Congress. Preston Brooks
caned Charles Sumner on the floor of the Senate. John Brown raided Pottawatomie and
Harper’s Ferry. These things mattered and very well could have upset the regime’s
dynamic by 1857, making it more likely to throw the issue to the Court. But slavery was
still a divisive issue in 1841; and letting unelected judges decide the hard issues was still
an option for elected members of the regime.
If the “Nonmajoritarian” hypothesis applied to Groves v. Slaughter, then we
should expect to see a very divisive Opinion of the Court. If Congress truly threw the
issue to the Judiciary, the Court would have to decide the issue once and for all. This
kind of delegation requires anything but a decision that further compromises the slave
34
question. To be sure, Dred Scott shows that legislative deferrals entail a polarized
decision. In sum, if the regime hypothesis is true, then there should be uncompromising
judicial opinions on controversial topics. The majority opinion, however, skirted the
issue of Congressional jurisdiction over slavery. In fact, in the Justices’s minds, the case
turned on whether a clause in the Mississippi state constitution was self-enforcing or not.
The Court certainly did not try to solve the slavery issue in Groves.
On the other hand, the dissents and concurrences in the case might point towards
more polarization. McLean certainly appeared like he wanted to settle the issue, saying
that slaves are not property, and therefore not subject to the Legislature’s interstate
commerce power. And given McLean’s otherwise strong nationalist feelings, perhaps his
states rights vote in Groves v. Slaughter is an indication of his willingness to answer the
slavery question. Then again, it could also be an indication of McLean doing anything he
can to keep slaves out of Mississippi.
Baldwin and Taney also issued extra opinions, but only because McLean did the
same in the first place. Baldwin believed that the Court had dealt with the issue at hand
and that there was no reason for McLean to talk about interstate commerce. But given
that McLean got to write his thoughts about interstate commerce, Baldwin considered it
necessary to voice his opinion. Baldwin writes, “The questions which would have arisen
in such an event, are of the highest importance to the country; and, in my opinion, ought
not to be considered by us…But since a different course has been taken by the judges
who have preceded me [i.e., McLean], I am not willing to remain silent; lest it may be
inferred that my opinion coincides with that of the judges who have now expressed
theirs” (emphasis added).
58
He explicitly says that his is not a judicial question—hardly
35
sound evidence that he believes Congress has deferred to the Court.
Taney felt the same: “I had not intended to express an opinion upon the question
raised in the argument in relation to the power of Congress to regulate the traffic in slaves
between the different states, because the Court has come to the conclusion, in which I
concur, that the point is not involved in the case before us. But, as my Brother McLean
has stated his opinion upon it, I am not willing, by remaining silent, to leave any doubt as
to mine.”
59
It seems unfitting to count Baldwin and Taney’s opinions as trying to fulfill
the “nonmajoritarian” role. In fact, only McLean’s opinion seems to have been affected
by the regime variable, and even that vote seems better explained by attitudinalism.
Regarding a couple of “slave or not” cases, The Antelope and Amistad probably
do not fit the hypothesis. After the Court decided The Antelope, the government had a
chance to buy the slaves and ship them back to Africa. Congress actually passed—and
the president signed—an override that cancelled a court-ordered bond to remove the
Africans by a specified date.
60
During the Amistad ordeal, the Van Buren administration
lobbied the Supreme Court to hand over the Africans to the Spanish.
61
The president
must have been disappointed by the Court’s decision that declared the Africans free.
Given that the Court’s actions were contrary to the wishes of the elected branches, it
would be hard to argue that the Court followed the regime in these two cases.
The other “slave or not” cases are harder to analyze because it is difficult to
decipher what the regime would have wanted the Court to decide. How do we know who
Congress thought was and wasn’t a slave? It’s too hard to tell. As such, these cases are
probably not appropriate for a regime analysis on the issue of slavery. However, they can
be related to a possible federalism regime. In all five cases, the Court deferred to a more
36
decentralized institution. In Lagrange v. Chouteau and Menard v. Aspasia, the Court
denied jurisdiction, thereby letting the Missouri court’s rulings stand. In US v. The Ship
Garonne, the Court upheld the eastern Louisiana district court’s ruling. And even though
it was a federal court, the district courts were—and still are—much more sensitive to
local considerations. Rhodes v. Bell deferred to Maryland law. Strader v. Graham ruled
that Kentucky had the right to determine the status of re-imported slaves. Regardless of
whether the decision was pro- or anti-slavery, in each case, the Court gave the decision
back to the states (to the district court in Garonne). Maybe this is indicative of some kind
of Jacksonian federalism regime that handed power down to the states. But that would
mean three strongly nationalist Justices would have had voted “states rights” eleven
times. Story would have had to voted “states rights” in Lagrange, Menard, Garonne, and
Rhodes. McLean would have had to have done the same, plus voted “states rights” in
Strader. Finally, for this explanation to work, it would mean that the most politically
influential Federalist in American history, John Marshall, would have had to voted anti-
federalist twice. This line of reasoning does not seem too strong. I think a better
explanation of these cases, as demonstrated by the legal model’s tests, is that the law
mattered.
Regime: “Fugitive Slave”
Regime theory has a strong claim to Supreme Court decisions involving fugitive
slave law. Before making the case that this hypothesis explains “fugitive slave” suits
let’s first look at them in light of the other alternatives. Table 2 shows attitudinalism
predicting over 60% of “fugitive slave” cases correctly. In fact, the model performed
better than 50% in all four cases: it got 5 out of 9 right in two cases and 6 of 9 right in the
37
other two. While these numbers are pretty good, they still do not display the strength of
the model like Groves v. Slaughter and Rowan v. Runnels. What about the legal model?
In applying the toughest legal test (i.e., unanimous or all-but-one), all pass.
62
This looks
like a strong indication of legalism’s presence in fugitive slave cases. Moreover, every
decision was “proslavery.” Maybe the law was so clear in terms of a strict fugitive slave
law that the Court felt bound to rule the way it did. This seems plausible. But I think a
close examination of the political system on the fugitive slave issue sheds a good deal of
light on Supreme Court decision-making in the same area.
Case Direction Attitudinal
Votes
Nonattitudinal
Votes
Unanimous or
all-but-one?
Prigg v. Pennsylvania Pro-slavery 6 3 Yes
Jones v. Van Zandt Pro-slavery 5 4 Yes
Moore v. Illinois Pro-slavery 6 3 Yes
Norris v. Crocker Pro-slavery 5 4 Yes
Table 5. Attitudinal and Legal Results for “Fugitive Slave” Cases
In order to understand the fugitive slave cases, it is necessary to look at the
political development of fugitive slave law in the early republic and antebellum periods.
In The Slaveholding Republic, Don Fehrenbacher devotes two chapters to “The Fugitive
Slave Problem.”
63
Taking on the thesis of the rest of the book, Fehrenbacher argues that
fugitive slave litigation and legislation was handled in a way that pacified the South. He
maintains that when it came to runaways, the US government tried to protect the interests
of the slaveocracy. Given the evidence, this conclusion is tough to argue.
For starters, the Constitution created a favorable fugitive slave law for
Southerners. It put the responsibility of finding runaways on the shoulders of the
government. Previously, it had rested on those of the slaveholders. The Northwest
Ordinance, for example, had stated that those who escaped to the Northwest Territory
38
“may be lawfully reclaimed.” This amounts to recaption—one’s right to take back what
rightfully belongs to him. The Constitution, though, put the onus on the government,
stating that escapees “shall be delivered up.” When the South felt like the feds were not
following through on its obligation, it pushed through the Fugitive Slave Act of 1793. It
stated that the governor of a slave state could demand that the governor of a free state
track down a fugitive. It also allowed for the private capture of blacks, who would then
be taken before a judge to certify that they were, in fact, fugitives.
64
Fehrenbacher
comments, “Certification amounted to the retroactive licensing of any slave hunter who
could satisfy a magistrate (by oral testimony or affidavit) that the person in his custody
was indeed a runaway.”
65
One would think that the South felt safe in knowing that her laborers would be
returned if they fled. A clear law specifically detailed the process for surrendering
fugitives to owners. Many northern judges who harbored abolitionist sentiments
nevertheless implemented the Fugitive Slave Act of 1793.
66
Yet Southerners still felt like
a more strict law was necessary. And even though nothing happened for over half a
century, Southern legislators still pushed for more protections. In 1801, a bill that would
require free blacks to carry documented proof of their freedom failed by only 2 votes.
67
And in 1818, a bill that would have compelled northern states to aid in recaption passed
both the House and Senate. But that term’s session ended before the two houses drafted a
conference bill.
68
Congress was not the only branch of government that Southerners had
control over. The executive sometimes sent the army to capture fugitive slaves. Treaties
with foreign nations that held land in North America always stipulated that runaway
39
slaves held by Americans be returned. And the judiciary ruled against almost every black
brought into court.
69
Even so the South constantly clamored for a more stringent fugitive slave law.
They got their wish in the middle of the 19
th
century. With the addition of a huge new
tract of land after the Mexican-American War, the US had a problem in admitting new
states, carved out of that territory, into the Union. The Compromise of 1850 is largely
remembered for the three points dealing with that issue: 1) California came into the
Union as a free state; 2) Texas ceded a good portion of its claim in the west; and 3) the
New Mexico territory (New Mexico and Utah) would come into the Union under popular
sovereignty. Two other deals were made in the Compromise of 1850. First, the slave
trade was abolished in the nation’s capital. Secondly, a new Fugitive Slave Act was
passed. On paper, the deal obviously favored the North. California—the richest region
of the Mexican Cession—joined the ranks of free soil. Texas, which legalized slavery,
gave up a lot of land to New Mexico. And New Mexico was to employ popular
sovereignty, which most agreed would lead to the formation of more free states.
70
Throw
in that you could no longer sell slaves in Washington, D.C., and it appeared like the only
concession the South got was the Fugitive Slave Act of 1850.
Then again, the harshness of the 1850 Act does not even remotely suggest any
kind of compromise. It created new federal marshals charged with catching fugitive
slaves, who would be fined $1000 if they did not follow through on their job description.
Those officials’s income was also partly based on commission: they got $10 if the judge
convicted the fugitive and $5 if he ruled for an acquittal. The marshal could also
deputize anyone to help with the capture; the deputies would likewise be paid based on
40
the court’s ruling. The judge himself was now more likely to side with slave interests as
new courts were created for the sole purpose of trying (i.e., convicting) fugitive slaves.
71
When in court, the testimony of the fugitive was not to be admitted. Lastly, Southern
complaints about northern abolitionists helping runaways manifested itself in the form of
severe penalties for helping fugitive slaves. If someone aided an escapee, he was subject
to three separate punishments. He could serve up to 6 months in jail, have to pay up to
$1000 in fines, and could be tried in civil court by the slaveholder for $1000 per
fugitive.
72
Set against this backdrop, if the regime hypothesis is true, then we should see the
Justices voting “pro-slavery” in every “fugitive slave” case, as this would satisfy the will
of the rest of the regime. If the regime hypothesis is false, then we should see “anti-
slavery” votes, indicating that a Justice was going against the wishes of the regime.
Four cases about fugitive slave law came to Supreme Court in the 1840s and early
1850s. Prigg v. Pennsylvania is probably the most well known of the group. In 1842,
Edward Prigg came before the Supreme Court as a bounty hunter who had dragged a
black woman—presumed to be a slave—out of Pennsylvania and into Maryland. Prigg
had violated a Pennsylvania statue that essentially made it illegal to take any suspected
slaves out of the state. The law stated, “Any person or persons [who] shall…by force and
violence, take and carry away…any negro or mulatto, from any part or parts of this
commonwealth, to any other place or places whatsoever, out of this commonwealth, with
a design and intention of selling and disposing of…such negro or mulatto, as a
slave…[shall] be deemed guilty of a felony.”
73
Prigg argued that the Pennsylvania law
41
was unconstitutional because it contradicted the fugitive slave language in the
Constitution and was in conflict with the Fugitive Slave Act of 1793.
Story penned the majority opinion, saying that under the Supremacy Clause,
Pennsylvania’s anti-fugitive law was indeed unconstitutional. Most of the Justices agreed
on this much. Where things got heated is in the area of the duty of states to assist the
federal government in its hunt for fugitives. Story said that although state judges and
state officials should enforce the fugitive slave laws, the national government had no
power to force them to act. Taney disagreed on this point. In his concurrence, he
claimed that state officials were required to act. Story also said that the states did not
have jurisdiction on the issue. He wrote, “The subject is as completely taken from the
state legislatures, as if they had been forbidden to act.”
74
Wayne recorded a concurrence,
saying the same: only Congress could legislate fugitive slave law. Daniel and Thompson
both entered a concurrence, insisting that states could go farther than federal law if they
so chose. The lone dissenter, McLean, said that states had the right to protect their
residents and that personal liberty laws (such as making slavecatchers go before that
state’s court before shackling a black) were fair.
75
Justice Grier’s opinion for the Court in 1852, in Moore v. Illinois codified the
Daniel/Thompson stance from Prigg. Illinois had prosecuted Thomas Moore for
concealing a fugitive slave. Under state law, “any person [who] shall harbor or secrete
any negro…or shall in any ways hinder or prevent the lawful owner or owners of such
slaves or servants from retaking them…shall be deemed guilty of a misdemeanor, and
fined not exceeding $500, or imprisoned not exceeding six months.”
76
Future Chief
Justice Salmon P. Chase, representing Moore, asserted that Prigg had dictated that states
42
could not make laws that aided the federal law in the capture of runaways. The Justices
ruled against this, saying that states could make laws that facilitated the federal
government in capturing fugitive slaves. Grier explained, “A State has a right to make it
a penal offense to introduce paupers, criminals, or fugitive slaves, within their borders,
and punish those who thwart this policy by harboring, concealing or secreting such
persons.”
77
Alone again in the minority, McLean dissented. He claimed that someone
who assisted a fugitive slave would be tried for the same crime twice (once by the feds
and once by a state), which violated the Fifth Amendment.
Jones v. Van Zandt came to the Court in 1847 after a group of slaves ran away
from their Kentucky master. On their way to Ohio, John Van Zandt, apparently fully
aware of the blacks’s slave status, gave them a ride on his wagon. Slavecatchers caught
up to escapees and took them, as well as Van Zandt, back to Kentucky. Chase
represented Van Zandt and contended that the fugitive slave law was unconstitutional
because it was not one of Congress’s enumerated powers. Plus, Chase proclaimed,
slavery was immoral, and the Court was bound to strike down such things, regardless of
the written law. In what was probably a pretty easy decision, the Court unanimously
ruled against Chase, saying that the fugitive slave clause was one of the vital
compromises of the Constitutional Convention. New Hampshire native Justice Levi
Woodbury also said that there was no moral law that judges were bound to protect. They
were charged with interpreting the written law.
Lastly, Norris v. Crocker involved the dynamic between the Fugitives Slave Acts
of 1793 and 1850. At issue was how large the fine for assisting an escapee should be.
Whereas the 1793 law called for a $500 fine, the 1850 statute imposed a $1000 fine,
43
$1000 payment to the slaveowner, and jail time. Once again, Chase represented the anti-
slavery party. He said that because the 1850 Act did not repeal the relevant sections of
the 1793 Act, the older fines were still on the books. Once again, the Court disagreed
with Chase, strongly and explicitly ruling that the Fugitive Slave Act of 1850 trumped the
1793 law.
78
I coded every fugitive slave decision by the majority of the Court as pro-slavery.
While there was no major consensus in Prigg v. Pennsylvania on the obligation of
northern states to assist in the return of fugitives, all the Justices, save McLean, agreed
that the Pennsylvania law was unconstitutional. This strikes me as a victory for
slaveholders. Moore v. Illinois instituted the more pro-slavery stance of Prigg that the
Justices could not agree on a decade earlier. Jones v. Van Zandt was easy to code: the
Court dismissed Chase’s claim that fugitive slave law was unconstitutional. And Norris
v. Crocker chose the more severe Fugitive Slave Act as the supreme law. The level of
consensus among the Justices in these cases was remarkable: they only registered two
“anti-slavery” votes (McLean in Prigg and Moore).
Figure 3. Fugitive Slave Decisions
44
The legal thesis is plausible: maybe the law was so clear that it engendered these kinds of
rulings. The Constitution did contain a fugitive slave clause; and the Acts of 1793 and
1850 were fairly clear. Given the doctrine, perhaps the Court felt obligated to rule pro-
slavery in every case.
I think a better explanation, however, is that fugitive slave law was an important
issue to the slavery regime in Washington, which itself favored tough policy against
runaways. The Court simply fell in line with the rest of the political system. A number
of scholars have demonstrated the Supreme Court acting in such a manner. None is more
poignant than Klarman’s work on the judicial civil rights agenda of the 20
th
century,
where he shows largely as a function of the regime’s stance towards blacks.
79
That
theory applies here. As evidenced by political developments, both the elected and
judicial wings of the regime favored stronger and stronger fugitive slave provisions as
time went on. The two cases in which this is most clear are Prigg v. Pennsylvania and
Moore v. Illinois. Even though Prigg was a pro-slavery decision, it was not as stringent a
ruling as could have been laid down, as displayed through the concurring opinions. The
Court could have used Taney’s logic that state officials were required to deliver fugitives.
It also could have gone with Daniel and Thompson’s argument that states could make
laws to aid the capture of fugitive slaves. Nevertheless, Prigg did strike down a Northern
law that got in the way of bounty hunters. And it did specify that the seizure of runaways
was a federal responsibility—a point that Southerners had alleged for decades.
Put simply, in 1842, Story’s opinion in Prigg v. Pennsylvania was about equal to
the general temper of the rest of the regime on fugitive slave law. When the Court
45
handed down Moore v. Illinois in 1852, though, the disposition of the regime towards
fugitives was more extreme. The passage of the Fugitive Slave Act 1850 is proof that the
South very much valued tougher enforcement and harsher sanctions for violations. Dixie
might have even traded New Mexico, California, an expansive Texas, and the slave trade
in D.C. just to have a stronger fugitive slave code. In sum, it was a high priority to the
South, which made it a high priority to the regime, because any talk about slavery carried
with it the understanding that runaways had to be returned. And given this context, the
regime hypothesis seems to explain Moore v. Illinois, which applied the
Daniel/Thompson stance from Prigg. As the rest of the political system became more
stringent towards fugitive slave law, so did the Court.
So how does one explain Jones v. Van Zandt and Norris v. Crocker? They did not
toughen existing law on fugitives. To be sure, both cases involved the Supreme Court
merely upholding previous decisions by Congress. In Jones, the Court validated the
capture of fugitive slaves and upheld the Constitutionality of the Fugitive Slave Act of
1793. In Norris, the Court favored the recently legislated Fugitive Slave Act of 1850
over its 18
th
century counterpart. This legitimation function is an important one to the
regime though. Robert Dahl would argue that in these cases, the Court was part of the
national governing coalition and that it served the regime by rubber-stamping the
Legislature’s policies. Dahl writes, “The main task of the Court is to confer legitimacy
on the fundamental policies of the successful (i.e., dominant) coalition.” These were not
dynamic decisions by any stretch; the Supremes just upheld the status quo implemented
by the elected branches.
80
But this was one of their functions—and according to Dahl, an
important one—within the regime.
46
Chapter 4 Endnotes
29
See Spaeth & Segal, Segal & Spaeth, Jeffrey A. Segal & Harold J. Spaeth “Reply to
the Critics of the Supreme Court Attitudinal Model Revisited” in Symposium on The
Supreme Court and the Attitudinal Model Revisited Law and Courts Newsletter (Summer
2003).
30
However, a disproportionate number of the cases heard by those Justices were about
fugitive slave law, which, as demonstrated by the regime hypothesis, might cause these
numbers to be inflated. See “Attitudinalism Revisited,” page 41-42.
31
Groves v. Slaughter.
32
Groves was one of the cosigners guaranteeing the contract—this is his only mention in
the entire Groves v. Slaughter decision. I do not know the involvement of Slaughter.
33
Groves v. Slaughter.
34
McLean writes, “The power over slavery belongs to the states respectively. It is local
in its character, and in its effects; and the transfer or sale of slaves cannot be separated
from this power. It is, indeed, an essential part of it.” in Groves v. Slaughter.
35
Barbour had died and Catron was indisposed.
36
Rowan & Harris v. Runnels.
37
Harold J. Spaeth & Jeffrey A. Segal, Majority Rule or Minority Will: Adherence to
Precedent on the US Supreme Court (Cambridge: Cambridge University Press, 1999).
This does not strike me as the soundest of research designs. Should we really expect a
Justice to vote against an opinion he wrote?
38
Rowan & Harris v. Runnels.
39
Harris had died. Thus, I refer to the 1847 case as Rowan & Harris v. Runnels and to
the 1851 case as Rowan v. Runnels.
40
Rowan v. Runnels.
41
Rowan v. Runnels. It does not specify exactly who is to pay the fine. Wayne’s opinion
says that both are liable.
42
Rowan v. Runnels.
47
43
If the number of Justices per region was odd, then it required the higher number to pass
the test. If the number was even, then it required 50% plus one to pass the test. For
instance, if four Northern, three Southern, and two border state Justices sat on the Bench,
it took two Southern and three Northern Justices agreeing for the model to claim success.
This decision was made because it provided a more rigorous evaluation of the legal
model.
44
O’Brien, 290.
45
O’Brien, 289.
46
“The Slave Ship Antelope: 120 Africans Sent to Liberia, and 37 Enslaved in the United
States” http://pages.prodigy.net/jkess3/Antelope.htm.
47
Lagrange v. Chouteau.
48
Menard v. Aspasia.
49
US v. The Ship Garonne. See page 12.
50
found in United States v. Amistad.
51
United States v. Amistad.
52
found in Rhodes v. Bell. Congress made the same arrangement for the part of the
District that used to belong to Virginia. The law said, “that the laws of the state of
Virginia, as they now exist, shall be and continue in force in that part of the District of
Columbia which was ceded by the said state to the United States, and by them accepted.”
(found in Rhodes v. Bell)
53
found in Rhodes v. Bell. Incidentally, Virginia had a similar law that existed before the
creation of the nation’s capital: “no person shall henceforth be slaves within this
commonwealth, except such as were so on the 17th of October, 1785, and the
descendants of the females of them.” (found in Rhodes v. Bell)
54
Strader v. Graham.
55
David L. Lightner, “The Supreme Court and the Interstate Slave Trade: A Study in
Evasion, Anarchy, and Extremism” Journal of Supreme Court History (2004): 240.
56
Orren & Skowronek, 21.
57
Graber, “Nonmajoritarian.”
48
58
Groves v. Slaughter.
59
Groves v. Slaughter.
60
“The Slave Ship Antelope: 120 Africans Sent to Liberia, and 37 Enslaved in the United
States” http://pages.prodigy.net/jkess3/Antelope.htm.
61
Kermit L. Hall “The Amistad” in Ed. Kermit L. Hall, Oxford Guide to United States
Supreme Court Decisions (Oxford: Oxford University Press, 1999).
62
I think the argument could be made that a stronger test might be whether or not
“Border State” Justices agreed with Justices who were coded “North.” The reasoning
here is that the border states were the most concerned with fugitive slave law because
their slaves had easier access to free territory. Every case would pass this test.
63
Don E. Fehrenbacher, The Slaveholding Republic (Oxford: Oxford University Press,
2002), 205-252.
64
“Fugitive Slave Law of 1793.” Found at http://academic.udayton.edu/race/02rights/
slave02.htm
65
Fehrenbacher, Slaveholding Republic, 212.
66
Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven,
CT: Yale University Press, 1975).
67
Fehrenbacher, Slaveholding Republic, 213-214.
68
Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780-1861
(Baltimore: Johns Hopkins University, 1974): 37-41.
69
Fehrenbacher, Slaveholding Republic, 214.
70
Although, New Mexico and Utah eventually, and quite unexpectedly, opted for slavery.
However, not that many slaves were actually carried into those states.
71
These courts shared concurrent jurisdiction with Circuit Courts.
72
All of these provisions are found in the Fugitive Slave Law of 1850, which can be
found at http://www.usconstitution.net/fslave.html.
73
The entire clause can be found at: http://www.historyofsupremecourt.org/scripts/
supremecourt/glossary.cgi?term=p&letter=yes.
49
74
Prigg v. Pennsylvania.
75
Prigg v. Pennsylvania.
76
Moore v. Illinois.
77
Moore v. Illinois.
78
Norris v. Crocker. Justice Catron opinion reads, “the fourth section of the act of
Congress, approved on the 2th day of February, A.D. 1793, entitled ‘An act respecting
fugitives from justice and persons escaping from the service of their masters,’ is repealed,
so far as relates to the penalty, by the act of Congress approved September 18th, 1850,
entitled, ‘An act to amend, and supplementary to, the act entitled “An act respecting
fugitives from justice and persons escaping from the service of their masters,”’ approved
February 12th, 1793.”
79
Klarman.
80
I borrow the term “dynamic” from Rosenberg’s idea of a dynamic court that is able to
produce major social reform. See Gerald Rosenberg, The Hollow Hope: Can Courts
Bring About Social Change? (Chicago: University of Chicago, 1991).
50
Chapter 5: Conclusion
This paper set out to discover what Supreme Court Justices used as the basis for
their decision-making in cases involving slavery. Most accounts of Supreme Court
decision-making have pitted political versus legal conceptions.
81
Quite new to the debate,
regime politics argues that sometimes Supreme Court decisions are best understood in the
larger political context. I sought to test regime theory against attitudinalism and legalism.
My results displayed that each of the theories explains a set of cases. Attitudinalism
captured the cases that involved slavery in Mississippi. Meanwhile, in “slave or not”
cases before Dred Scott, the evidence shows that the law played a major role. And lastly,
“fugitive slave” suits were fated to be decided pro-slavery because of the South’s intense
need to catch runaways. Put together, the message for judicial decision-making in
slavery cases is that the most important variable is the type of issue involved in the case.
Also, this paper shows that no one explanation perfectly fits with every case, and that
behavior is fluid, at least in terms of slavery suits.
I think that message extends to other issue areas, despite questions surrounding
the generalizabilty of this paper—an issue that warrants discussion. I selected cases
involving slavery because for regime theory to work at all, it has to work with the larger
issues in American political history. (Attitudinalism and legalism were still worthy
explanations for slavery cases.) This might represent a selection bias in that other
judicial votes, on less salient issues, may very well have nothing to do with regime
politics. This has repercussions on generalizability, for what issue in our past is more
salient than slavery? I can think of none. Yet I still think these results could very well
manifest themselves in other times, with other Justices, and on other issues. Perhaps
51
Owen Roberts’s “switch in time that saved nine” was due to the influence of the
dominant New Deal coalition.
82
The Rehnquist Court’s federalism revolution could have
been in response to emerging views on states rights that crossed both parties.
83
In terms of the internal validity, the operationalization of the independent
variables is not perfect. A North/South proxy for anti- and pro-slavery views has an
obvious flaw: a Northerner could be pro-slavery and a Southerner could be anti-slavery.
But given the nature of sectional and judicial politics in the early 19
th
century, I think the
proxy is a fair one. And determining whether Justices voted on the law is nearly
impossible because: 1) there are different conceptions of the law, which means you can’t
just place one vote in the legal column and another in the attitudinal column;
84
and 2)
because judges might be voting their preferences, but personally believe—or maybe even
trick themselves into believing—that they are doing their judicial duty. At any rate, I
gave what I thought to be some plausible ways of capturing the legal hypothesis.
At least in terms of reliability, the tests that I conducted for the attitudinal and
legal models are fully replicable. One can look up the Justices’s home state and code the
cases to see if he voted his preferences. I am confident in my “pro-slavery” and “anti-
slavery” codings. It is also easy enough to look up the voting breakdown in a particular
case. Though my regime analysis goes a little more in-depth into the nuanced history of
the politics of slavery, it is not as systematic as the tests for attitudinalism and legalism.
But I feel that in order to get at the kind of detail that regime politics demands, one has to
employ an historical approach.
Though this study seems to be somewhat sensitive towards the regime
explanation, we should not abandon the two traditional theories of judicial behavior.
52
Indeed, this paper confirms that attitudinalism and legalism are real alternatives and go a
long way in answering the research question. Plus, we should not forget the normative
implications that both these theories carry. Do we want our judges voting their
preferences like normal politicians? Is that really the duty of the judicial branch? On the
flip side, if judges are only supposed to implement the law, then how are we to expect the
Court to fix political and market failures? Do we really want the Court to rule with
precedent—and against blacks—in Brown v. Board? These are important questions, and
the attitudinal and legal models presented them to researchers a long time ago. Today,
regime politics provides us with a whole new, not to mention unique, set of answers to
these normative inquiries. The big question, of course, is whether or not regime theory
has the empirical foundation that would allow it to enter the normative debate. While I
show that policy preferences and the law are certainly key variables, I think that this
paper demonstrates that a third alternative should also be considered.
53
Chapter 5 Endnotes
81
See footnote 1.
82
See “Symposium on FDR’s Court-Packing Plan.” American Historical Review 110
(October 2005).
83
See J. Mitchell Pickerill & Cornell W. Clayton “The Rehnquist Court and the Political
Dynamics of Federalism” Perspectives on Politics 2 (June 2004): 233-248.
84
Gillman, What’s Law Got to Do with It.”
54
Bibliography
Cover, Robert M. Justice Accused: Antislavery and the Judicial Process. New Haven,
CT: Yale University Press, 1975.
Dahl, Robert. “Decision-Making in a Democracy: The Supreme Court as a National
Policy-Maker.” Journal of Public Law 6 (1957): 279-295. Reprinted by Emory
Law Journal in 2001.
Dudziak, Mary L. Cold War Civil Rights: Race and the Image of American Democracy.
Princeton, NJ: Princeton University Press, 2000.
Dworkin, Ronald M. Taking Rights Seriously. Cambridge, MA: Harvard University
Press, 1977.
Epstein, Lee, and Jack Walker. The Choices Justices Make. Washington, D.C.: CQ Press,
1998.
Fehrenbacher, Don E. The Slaveholding Republic. Oxford: Oxford University Press,
2002.
“Fugitive Slave Law of 1793.” http://academic.udayton.edu/race/02rights/ slave02.htm
“Fugitive Slave Law of 1850.” http://www.usconstitution.net/fslave.html.
Gerhardt, Michael J. “Judicial Decisionmaking: Attitudes about Attitudes.” Michigan
Law Review. 101 (2003): 1733.
Gillman, Howard. “Courts and the Politics of Partisan Coalitions,” 1.
Gillman, Howard. “How Political Parties Can Use the Courts to Advance Their Agendas:
Federal Courts in the United States, 1875-1891.” American Political Science
Review 96 (2002): 511-24.
Gillman, Howard. “Party Politics and Constitutional Change: The Political Origins of
Liberal Judicial Activism” in The Supreme Court and American Political
Development, edited by Ronald Kahn and Ken I. Kersch, 138-68, Lawrence, KS:
University of Kansas.
Gillman, Howard. “What’s Law Got To Do With It? Judicial Behavioralists Test the
‘Legal Model’ of Judicial Decision Making.” Law and Social Inquiry (2001):
465-504.
Graber, Mark A. “The Nonmajoritarian Difficulty: Legislative Deference to the
Judiciary.” Studies in American Political Development 7 (1993).
55
Hall, Kermit L. “The Amistad” in Oxford Guide to United States Supreme Court
Decisions, edited by Kermit L. Hall, Oxford: Oxford University Press, 1999.
Holt, Michael F. The Fate of Their Country: Politicians, Slavery Extension, and the
Coming of the Civil War. New York: Hill and Wang, 2004.
Keck, Thomas M. “Party, Policy, or Duty: Why Does the Supreme Court Invalidate
Federal Statutes?” American Political Science Review 101 (2007): 321-338.
Klarman, Michael J. From Jim Crow to Civil Rights: The Supreme Court and the
Struggle for Racial Equality. New York: Oxford University Press, 2004.
Lightner, David L. “The Supreme Court and the Interstate Slave Trade: A Study in
Evasion, Anarchy, and Extremism.” Journal of Supreme Court History 29 (2004).
Maltzman, Forrest, et al. Crafting Law on the Supreme Court: The Collegial Game. New
York: Cambridge University Press, 2000.
Morris, Thomas D. Free Men All: The Personal Liberty Laws of the North, 1780-1861.
Baltimore: Johns Hopkins University, 1974.
O’Brien, David M. Storm Center: The Supreme Court in American Politics. New York:
W.W. Norton, 2003.
Orren, Karen and Stephen Skowronek. The Search for American Political Development.
Cambridge: Cambridge University Press, 2004.
“Pennsylvania Statute.” http://www.historyofsupremecourt.org/scripts/
supremecourt/glossary.cgi?term=p&letter=yes.
Pickerill, J. Mitchell and Cornell W. Clayton. “The Rehnquist Court and the Political
Dynamics of Federalism.” Perspectives on Politics 2 (2004): 233-248.
Powe, Jr., Lucas A. The Warren Court and American Politics. Cambridge, MA: Belknap
Press of Harvard University Press, 2000.
Rosenberg, Gerald. The Hollow Hope: Can Courts Bring About Social Change? Chicago:
University of Chicago, 1991.
Segal, Jeffrey A. “Supreme Court Deference to Congress: An Examination of the
Marksist Model.” In Supreme Court Decision-Making: New Institutionalist
Approaches, edited by Cornell W. Clayton and Howard Gillman, 237-254.
Chicago: University of Chicago Press, 1999.
56
Segal, Jeffrey A. and Harold J. Spaeth. “Reply to the Critics of the Supreme Court
Attitudinal Model Revisited” Law and Courts Newsletter (2003).
Segal, Jeffrey A. and Harold J. Spaeth. The Supreme Court and the Attitudinal Model
Revisited. Cambridge: Cambridge University Press, 2002.
“The Slave Ship Antelope: 120 Africans Sent to Liberia, and 37 Enslaved in the United
States.” http://pages.prodigy.net/jkess3/Antelope.htm.
Spaeth, Harold J. and Jeffrey A. Segal. The Supreme Court and the Attitudinal Model.
Cambridge: Cambridge University Press, 1993.
Spaeth, Harold J. and Jeffrey A. Segal. Majority Rule or Minority Will: Adherence to
Precedent on the US Supreme Court. Cambridge: Cambridge University Press,
1999.
Swisher, Carl B. American Constitutional Development. Westport, CT: Greenwood Press,
1978.
“Symposium on FDR’s Court-Packing Plan.” American Historical Review 110 (2005).
Whittington, Keith E. “Congress Before the Lochner Court.” Boston University Law
Review 85 (2005): 821-858.
Wiecek, William M. “Slavery and Abolition Before the United States Supreme Court,
1820-1860.” Journal of American History 65 (1978): 34-59.
Abstract (if available)
Abstract
This paper looks at Supreme Court decision-making by examining cases that involved issues of slavery. After developing a population of 14 cases, I test the decisions in light of the three alternative hypotheses: attitudinalism, legalism, and regime theory. Each theory explains a different set of cases. The attitudinal model captures cases involving Mississippi laws governing slavery. The legal model explains suits in which the issue was whether a black was a slave or not. Finally, the regime account is most important in fugitive slave law.
Linked assets
University of Southern California Dissertations and Theses
Conceptually similar
PDF
The separation of powers and the Supreme Court: a new institutional analysis of inter-branch disputes, 1946-2005
PDF
The Supreme Court and the governing regime in political time
PDF
Death and politics in the United States Courts of Appeals
PDF
The life cycle of jurisprudential regimes: the supreme court and the constitutional law of civil rights
PDF
The new dynamics of bureaucratic autonomy: courts, litigation, and agencies in the modern American state
PDF
A two-level analysis of foreign policy decision making: an empirical investigation of the case of China-Taiwan
PDF
A government of words: the social practice of judging in a rule-of-law system
PDF
Decisions to ratify the Kyoto Protocol: a Latin American perspective on poliheuristic theory
PDF
Property and democracy: authority in four American property-rights regimes
PDF
Discussion during treatment decision-making predicts emotional adjustment in prostate cancer patients
PDF
The impact of 9/11 on the judicial treatment of Middle Eastern asylum applicants in the U.S. courts
PDF
An empirical evaluation of breast cancer treatment decision making
PDF
Health-related quality of life correlates of the treatment decision making process of newly diagnosed prostate cancer patients
PDF
The effects of framing and actuarial risk probabilties on involuntary civil commitment decisions
PDF
A discussion of inter-rater reliability and content validity of Westphal's decision making inventory (1967), describing developmental processes of adults with developmental delays
PDF
Nature, nurture, nation: race and childhood in transatlantic American discourses of slavery
PDF
Neither purse nor sword: strategic minority opinions and judicial policy-making
PDF
Deconstructing the psychological components of emotional decision making and their relation to the suicide continuum
PDF
Optimal decisions under recursive utility
PDF
Phoenix rising: Arizona and the origins of modern conservative politics
Asset Metadata
Creator
Bridge, David
(author)
Core Title
Supreme Court decision-making in slavery cases
School
College of Letters, Arts and Sciences
Degree
Master of Arts
Degree Program
Politics
Publication Date
07/31/2007
Defense Date
06/01/2007
Publisher
University of Southern California
(original),
University of Southern California. Libraries
(digital)
Tag
judicial politics,OAI-PMH Harvest,Slavery,Supreme Court
Place Name
Mississippi
(states),
USA
(countries)
Language
English
Advisor
Gillman, Howard (
committee chair
), Barnes, John E. (
committee member
), Seip, Terry (
committee member
)
Creator Email
deb@usc.edu
Permanent Link (DOI)
https://doi.org/10.25549/usctheses-m729
Unique identifier
UC1222057
Identifier
etd-Bridge-20070731 (filename),usctheses-m40 (legacy collection record id),usctheses-c127-534633 (legacy record id),usctheses-m729 (legacy record id)
Legacy Identifier
etd-Bridge-20070731.pdf
Dmrecord
534633
Document Type
Thesis
Rights
Bridge, David
Type
texts
Source
University of Southern California
(contributing entity),
University of Southern California Dissertations and Theses
(collection)
Repository Name
Libraries, University of Southern California
Repository Location
Los Angeles, California
Repository Email
cisadmin@lib.usc.edu
Tags
judicial politics