3. When the Supreme Court Makes Everything Worse

Or: How nine men tried to end a national crisis and accidentally started a civil war

What possesses a Court to think it can solve the nation’s deepest political crisis through constitutional interpretation?

It’s 1857. The country is tearing apart over slavery. Congress is gridlocked. Violence is erupting in Kansas. And nine men in robes decide they’ll settle the whole mess by ruling that Black people were never intended to be citizens and that Congress has no power to limit slavery anywhere.

The result? They made everything catastrophically worse.

The Court’s Fatal Hubris

Roger Taney and his fellow justices believed they were saving the Union. By taking slavery “off the table” as a political question, they thought they could force the nation to accept the constitutional reality they laid down. No more debates. No more compromises. No more Missouri Compromises or Kansas-Nebraska Acts. Just constitutional law.

But listen to how Taney himself put it. The question before the Court, he wrote, was whether “a negro whose ancestors were imported into this country, and sold as slaves,” could be “a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights and privileges and immunities guaranteed to the citizen?”

His answer was devastating: “We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution.”

This is what Professor Cass Sunstein calls the Court’s “myth-making” function—the dangerous idea that legal doctrine can resolve fundamental political disagreements. The Dred Scott majority didn’t just interpret the Constitution; they rewrote American history, claiming that Black people “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

But here’s what troubles me as I prepare this lesson: Taney wasn’t necessarily wrong about the original understanding. Some Founders clearly didn’t envision Black citizenship. Some states did restrict it. The problem wasn’t that Taney misread history—it’s that he tried to freeze a particular historical understanding in constitutional amber, making it permanent and unchangeable.

The Court’s “myth-making” function is the dangerous idea that legal doctrine can resolve fundamental political disagreements.

The Catastrophic Consequences

Every law student learns that Dred Scott was “bad law.” But that phrase is far too gentle. Dred Scott wasn’t just a legal error, it was a constitutional calamity, a blueprint for how judicial interpretation can pour gasoline on a national crisis.

The decision didn’t end the slavery debate—it supercharged it. Abraham Lincoln built his entire political career attacking Dred Scott. The Republican Party used it as evidence that a “Slave Power conspiracy” had captured the federal government. Abolitionists pointed to it as proof that the Constitution itself was fundamentally corrupted.

Most devastatingly, Dred Scott made compromise impossible. Before Dred Scott, Americans could imagine different futures. Free states could believe that slavery was dying a gradual death, that time and moral progress would eventually solve the problem. Southern states could hope that slavery would expand or at least be left alone. There was room for political maneuvering, for compromises that gave each side something while avoiding the fundamental question.

But Taney’s decision constitutionalized an extreme pro-slavery position. It said that any political solution involving federal restrictions on slavery was literally unconstitutional. It made Black freedom a constitutional impossibility under the existing framework. The decision didn’t just eliminate the middle ground—it declared the middle ground unconstitutional.

The ruling handed pro-slavery forces a total victory cloaked in constitutional authority, and in doing so, obliterated any hope for peaceful compromise. After Dred Scott, there was no room left for gradualism or hope. There was only submission—or conflict. No wonder Lincoln saw it not as jurisprudence, but as a conspiracy to make slavery “perpetual and universal.”

Modern Echoes

As I read through the opinion again, I can’t help but see echoes in our current constitutional moment. Not in the substance (thank God) but in the Court’s approach. The same impulse to use constitutional interpretation to settle political questions. The same belief that legal doctrine can transcend politics.

When the Court issues sweeping decisions on abortion, guns, or affirmative action, claiming to finally resolve these issues through constitutional text and history, I think of Taney’s confidence. He, too, believed he was being faithful to the Constitution. He, too, thought he was ending political controversy.

Sunstein’s insight cuts deep: courts don’t escape politics through constitutional interpretation—they just do politics by other means. And when they try to resolve intensely political questions through legal doctrine, they often make both law and politics worse.

The Irony of Judicial Finality

There’s a cruel irony at the heart of Dred Scott. Taney wrote the decision in part to preserve the Union, to prevent sectional conflict from tearing the country apart. But by trying to constitutionalize one side’s position, he made peaceful resolution impossible.

The same irony appears in our constitutional system’s design. We give the Supreme Court the final word on constitutional meaning precisely to avoid political conflict. But when the Court’s “final word” conflicts with deeply held political beliefs held by millions of Americans, that finality becomes a source of instability rather than resolution.

Think about Dobbs overturning Roe—millions of Americans who had accepted abortion rights as settled constitutional law suddenly found that “finality” evaporating. Yet Roe itself had long been a flashpoint, fueling decades of political and cultural conflict. Or consider how Bruen revolutionized gun rights just as mass shootings dominate national headlines. In each case, the Court’s effort to impose constitutional closure—whether by establishing or dismantling precedent—ended up intensifying, rather than resolving, political conflict.

This puzzles me as a constitutional law professor: How do we teach constitutional interpretation without falling into the myth of judicial neutrality? How do we acknowledge that constitutional law is political without becoming cynical about the entire enterprise?

What Dred Scott Teaches Us

I don’t think the lesson of Dred Scott is that courts should stay out of politics—that’s impossible in a system where courts interpret a politicized document. The lesson is more nuanced and more troubling.

First, constitutional interpretation can’t resolve fundamental political disagreements. It can channel them, structure them, sometimes defer them, but not resolve them. When courts try to do the impossible, they often make things worse.

Second, the language of constitutional law can obscure rather than clarify political choices. By framing slavery as a question of textual interpretation rather than moral principle, Taney made it harder, not easier, to confront the fundamental injustice he was protecting.

Third, and most importantly: bad constitutional law doesn’t just create bad legal precedent. It can destabilize the entire political system. Dred Scott didn’t just get slavery law wrong—it helped trigger a civil war.

Teaching This History

Here’s the thing that would be funny if it weren’t so tragic: Taney thought he was being moderate. He believed he was finding a middle ground by constitutionalizing the status quo rather than taking sides in the political debate. Instead, he made himself and the Court into partisan actors while pretending to be neutral arbiters.

Maybe that’s the real rumination here: Constitutional law can’t save us from politics. It can only do politics better or worse. Dred Scott shows us what happens when constitutional interpretation tries to transcend politics rather than engage with it honestly.

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Next time: I’ll explore how the Fourteenth Amendment attempted to overrule Dred Scott and establish birthright citizenship—and why that seemingly simple concept remains contentious today.