No, There Isn’t A “Dred Scott Case” of Our Times

Former Pennsylvania Senator Rick Santorum, who has declared “I am not a libertarian, and I fight very strongly against libertarian influence within the Republican Party and the conservative movement,” is also unlikely to win any prizes for temperateness of rhetoric. Last night at the Fox News debate he likened the Supreme Court’s jurisprudence on gay marriage to the infamous case of Dred Scott v. Sandford, a line he’s been using for a while.

Very likely he picked it up from a coterie of social-conservative commentators at places like National Review and First Things who’ve been using the comparison a lot. Last October I wrote a piece on this curious trope. A few excerpts: 

Dred Scott v. Sandford was the decision that 1) entrenched slavery and 2) set the nation on a path to Civil War. Slavery and the Civil War having been more horrible than most things happening in America lately, libertarian lawyer/author Timothy Sandefur has proposed that comparisons to Dred Scott should trigger American law’s version of the Internet’s “Godwin’s Law” under which whoever brings in Hitler has lost the argument….

[A National Review commentator claims] that the marriage rulings, like Dred Scott, pose a “comprehensive threat to republican government.”

Note what he’s asserting here. It’s one thing to object to a Supreme Court decision as restricting what laws the democratic process can make. That’s what Supreme Court decisions do, at least when they recognize constitutional rights that curtail government power. (Conservatives, like liberals, have their favorite Court decisions that do this, on topics that include freedom of education, gun liberty, and freedom of campaign speech.) It’s another thing to claim a given decision will make it impossible for republican government itself to function in the future in some sort of “comprehensive” way.

It happens that Dred Scott is one of the very few Supreme Court decisions you could describe without hyperbole as doing this, since in a nation closely divided between slave and free, it entrenched the slave power in a way that tended to paralyze political action in general. In the cataclysm that followed, the survival of republican government indeed was in peril….

The Supreme Court reports are littered with rulings that are poorly reasoned, wrongly decided or both, some of which have had dire consequences for the nation. But for the reasons Sandefur suggests, most sensible commentators refrain from lumping these decisions in with Dred Scott. One is that they hesitate to liken other evils to slavery. The other is that they hesitate to liken other episodes of social division to the American Civil War. None of the candidates on the podium last night believe so strongly in reversing a decision like Obergefell that they would see it as worth putting America through the horrors of civil war. Do they?