Maryland Removes Statue Of Roger B. Taney In Midnight Operation: Will Other Supreme Court Justice Monuments Follow?

Without much notice or debate, Maryland officials ordered the removal of the statue of Chief Justice Roger B. Taney due to his authorship of the Dredd Scott decision.  At midnight, workers quietly dismantled the statue in response to the violence in Charlottesville.  Taney’s statue stood for 145 years on the Maryland State House and his removal follows calls for the removal of statues not simply of confederate figures but founders like George Washington and others associated with either slavery or segregation.  I have cautioned against the wholesale removal of historical images and monuments and names at universities.  The flaws and failures of historical figures are often as more important than their triumphs.  The Taney removal reflects a widening array of figures who are now subject  to call for removal — beyond confederate statuary.   It is not clear what Maryland will do with the US Coast Guard Cutter Taney which currently is part of the Baltimore Maritime Museum.  It is last surviving active ship from the Pearl Harbor attack of December 7, 1941.  I have spent nights on the Taney with the Cub Scouts. While this is not on state lands, it is not clear if there will also be a demand that the ship be removed given its namesake or how far this movement to remove historical references will do.

Taney’s decision in Dredd Scott remains as one of the lowest moments for the Supreme Court and for the country.  Taney’s infamous words in the opinion capture the chilling racism and inhumanity of the time. Taney stated that the rights of African Americans had to be based on the original intent of the Constitution but that the framers believed that blacks “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.”

Taney was wrong on the law and on the wrong side of history.  He was a Jacksonian Democrat from Maryland who freed the slaves inherited from his father and gave pensions to some of them.  He served as Attorney General and Secretary of the Treasury.  When the Civil War began, he stayed with the North and continued to serve on the Supreme Court.   He also joined in Justice Joseph Story’s magnificent decision in favor of the slaves who took over the Spanish schooner Amistad.  Yet he also referred to “Northern aggression” in the war and appeared to remain a supporter of slavery. Ironically, he died on the day that Maryland abolished slavery near the end of the war.

Taney had a narrow view of federal authority and judicial power.  That was reflected in one of his more famous decisions in Luther v. Borden where he articulated a dividing line between between political questions and justiciable ones: “the powers given to the courts by the Constitution are judicial powers and extend to those subject, only, which are judicial in character, and not to those which are political.”

Taney’s decision in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), remains one of the most important decisions in history limiting the power of presidents and defending the the privilege of the writ of habeas corpus under the Constitution’s Suspension Clause. In the Dredd Scott decision, Taney ruled with nine other justices that Congress had no authority to restrict the spread of slavery into federal territories and that the 1820 Missouri Compromise was unconstitutional.

Taney’s decision in Dredd Scott warrants condemnation.  However, the dismantling of the Taney statue indicates that the scope of the current movement for statuary removals is broader than just confederate statues.  We have seen demands for the removal of Columbus statues and other historical figures.  As I mentioned recently, what concerns me is the lack of any public debate over calls for the removal of memorials and others (like Justices).  There are a host of justices who wrote terrible decisions that denied rights to others.  For example, Tenth Circuit Courthouse is named after Byron White who authored the opinion in Bowers v. Hardwich, upholding laws criminalizing homosexuality.   Oliver Wendell Holmes wrote in Buck v. Bell in favor of forced sterilization of those with intellectual disabilities. He said “society can prevent those who are manifestly unfit from continuing their kind” and ended the opinion by declaring that “three generations of imbeciles are enough.”

It is not clear if other names and statues like Holmes’ or Whites or others will also be removed or what standard will be applied in such cases.  From abortion to gay rights to internments, there are an array of opinions that are shock our conscience.  Yet, eight other justices signed on to Buck and seven signed off on Scott.  Likewise, as discussed in my recent column, there is a movement to strip away Woodrow Wilson’s name from Princeton University due to his support for segregation.    There are good faith objections to some of these figures but there is currently no clear standard for which statues are to be removed. Indeed, the majority of polled citizens do not favor even the removal of the confederate statues.  This would seem an ideal time for hearings in Congress and other forums to discuss how we should treat historical figures.  One alternative to dismantling statues is to add additional statuary or, as will be done at the Jefferson memorial, add information on slave holding.

What do you think?