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Scott
case. Taney was born in Maryland in 1777 to a family of tobacco farmers. A longtime supporter of Andrew Jackson, he became attorney general in the Jackson administration and was appointed chief justice in 1836. He was an excellent lawyer, possessing what William Wirt (who had represented the Cherokees) called a “moonlight mind,” a mind that gave “all the light of day without its glare.” Taney had argued for a gradual end to slavery, an institution he viewed as “evil” and a “blot on our national character.” He had represented abolitionists and had freed most of his own slaves. On the other hand, as attorney general, Taney had advised the secretary of state that the “African race … even when free … hold whatever rights they enjoy” at the “mercy” of the “white population.” 3
    Benjamin Curtis wrote the main dissent in
Dred Scott
. Curtis was a native of Massachusetts whom President Millard Fillmore had appointed to the Supreme Court in 1851 partly because of his reputation as a “moderate” on the slavery issue. He served on the Court only six years, resigning after the
Dred Scott
decision, saying that he doubted his usefulness on the Court in its “present state” (and perhaps for financial reasons as well). 4
    In
Scott
, the Court was faced with an issue that the Constitution’s framers had postponed and that was reaching an explosive state. Aware that the South would not join a Union that prohibited slavery, the framers in effect postponed the question of slavery’s continued existence by writing into the Constitution a series of compromises. Theyincluded language that said Congress, prior to 1808, could not prohibit the “Migration or Importation” of slaves into the United States. They prohibited any amendment affecting that bar. And they apportioned legislators (in the lower house of Congress) among the states according to population as determined by “adding to the whole Number of free Persons … three fifths of all other Persons,” that is, slaves. This method of counting (allowing the South additional representatives based on its slaves while understanding that the South would forbid its slaves to vote) meant that the South was overrepresented in the lower house of Congress and in the vote count for president. That overrepresentation initially gave the South sufficient political power to block abolitionist efforts. 5
    During the first half of the nineteenth century, however, population grew more rapidly in the newly acquired territories of the Northwest, rather than in the Southwest as the South had expected. That fact cost the South the political advantage it had been relying on to resist abolitionist legislation. Nonetheless, the North continued to fear that the South would use every political and legal device within reach to extend slavery into the new territories, thereby helping the South to maintain its political power once those territories became full states. 6
    In this atmosphere Congress had to decide how to treat new territories. In 1820, Congress had enacted the Missouri Compromise, forbidding slavery in territories north and west of Missouri. In 1845 it admitted Texas as a slave state, and in 1850 it admitted California as a free state. In 1854 it departed from the principles of the Missouri Compromise by permitting two territories north and west of Missouri—namely, Kansas and Nebraska—to choose for themselves whether to become slave states or free states.
    In 1854, the year Dred Scott’s appeal reached the Supreme Court, the legal status of slaves in the territories was of enormous political importance. The South feared that new states, if free, would soon produce a Congress that abolished slavery. It wanted the Supreme Court to hold that individuals had a constitutional right to own slaves, even in the territories. The North, of course, wanted the Supreme Court to hold that Congress could prevent the spread of the South’s evil institution