On the Dred Scott decision, Supreme Court and nominee

In March 1857, the U.S. Supreme Court in Dred Scott v. Sandford, 60 U.S. 393 (1856), issued a 7–2 decision against Dred Scott.

Dred Scott was born into slavery in Virginia around 1799. He sued for his freedom after his owners moved from Missouri, a “slave state” where slavery was legal, to the “free state” of Illinois, claiming that since slavery was not legal in Illinois, he should thus be made a free man.

In an opinion written by Chief Justice Roger Taney, the court ruled: “A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States.” Justia U.S. Law

The court ruled that since he was not a citizen, he could not benefit from the laws of citizenship and thus could not be a free man.

If anyone is wondering about the power of the U.S. Supreme Court and what impact it can have, please think about the Dred Scott decision for a while. Discuss Dred Scott with your children and your co-workers, if you can do so without crying.

While our country has much to be proud of, there is also much that we should be ashamed of. The Dred Scott decision stands as a stark example of how an interpretation of the law by a majority of the nine U.S. Supreme Court justices can have far-reaching impacts.

Four years after this decision the Civil War broke out. After the Union’s victory in 1865, the court’s rulings in Dred Scott were voided by the Thirteenth Amendment to the U.S. Constitution, which abolished slavery, and the Fourteenth Amendment, which guaranteed citizenship for “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” Wikipedia

The right to privacy is not mentioned in the Constitution. The right to health-care is not discussed in the Constitution either. A woman’s right to make decisions over her own health and reproductive rights are also not expressly protected in the Constitution.

The list of “rights” that most of us take for granted is long, and all are subject to interpretation by the nine justices who sit on the U.S. Supreme Court. Only five votes are needed to either expand, maintain or possibly take away our health care, take away our personal privacy, and take away a woman’s right to choose.

This is why the appointment of a new justice is so important. This is a lifetime appointment. The current Supreme Court nominee Amy Coney Barrett is 48 years old, and could potentially shape future court decisions and our lives for the next 50 years.

We need to get this right. To be clear, this is not about how great a student she was in college, nor about how brilliant she is as a legal scholar. What matters the most are her core values and the lens through which she looks at the world. The interpretation of law is not science or math, where the total of a column will always be the same, regardless of who is doing the counting.

Laws are subject to interpretation, which is why justices write opinions. The meaning of the words upon which the law is based are always subject to interpretation. Each of us has a slightly different world view depending on our life experiences. None of us are free of some sort of inherent bias that impacts every decision and every choice we make.

While people loath raising the question of religion when evaluating the suitability of Judge Barrett to an appointment to the U.S. Supreme Court, her personal world view is without question shaped in large part by her faith. Regardless of which particular religion it may be, a devout follower is hard-pressed to simply shunt aside the teachings of their God. This is not a judgment of the character of Amy Barrett, but merely a statement of fact.

Yes, some in leadership positions who consider themselves devout in their faith are able to set aside the teachings and values of their faith and make decisions based on the law. But this is certainly a legitimate area of discussion when evaluating her suitability for a lifetime appointment to the Supreme Court of the United States of America. Is Amy Coney Barrett able to do this?

For Judge Barrett or her supporters to say that her decisions will be based only upon the law as it’s written is disingenuous. Each justice views the same law, looks at the same facts, and hears the same arguments. But yet there are almost always differences of opinion among the justices who come to different conclusions, ultimately settled via majority rule.

The American people are in the midst of choosing their president. Millions of votes have already been cast. This appointment is being rushed through the process because the president and his enablers in the U.S. Senate do not trust the vote of the American people.

For if they did trust us, they would wait another 20 days to at least hear what we have to say.

•••

Gary Hooser formerly served in the state Senate, where he was majority leader. He also served for eight years on the Kaua‘i County Council, and was the former director of the state Office of Environmental Quality Control. He serves presently in a volunteer capacity as board president of the Hawai‘i Alliance for Progressive Action and is executive director of the Pono Hawai‘i Initiative.

7 Comments
  1. Sues October 14, 2020 5:57 am Reply

    Thank you for an insightful and to the point importance of who we, as Americans in a democratic society bound by laws, appoint to our most highest bench. The process of Supreme Court Justice Appointments needs to be reformed to address our current society and political division. I strongly feel that relying on democrats and republicans to represent the best interests of ALL American Citizens has become obsolete. God Bless America as we need it.


  2. james October 14, 2020 7:30 am Reply

    Nice sentiment. Any solution on how to prevent the Republican controlled Senate from confirming her nomination? On the bright side, ramming it through against the will of the majority of Americans will likely help Democrats in the election. It’s time for the majority of Americans to take over control of the government instead of the minority and move forward again.


  3. James I. Kuroiwa, Jr. October 14, 2020 8:47 am Reply

    Gary, the voters elected President Donald J. Trump on November 8, 2016 and he was sworn in on January 20, 2017, and today he is President until January 20, 2021. The current Senate were elected for six year terms from 2014 – 2016 – 2018 with 53 Republicans (majority), 45 Democrats, and 2 Independents currently in office until January 3, 2021. The U.S. Supreme Court vacancy was on Friday, September 18, 2020. The process of Advice and Consent began on Monday October 12, 2020 in conformance to the Constitution and Law, with the elected Senators currently in office until January 3, 2020. Your proposal is to go against our Laws and Constitution. Let’s follow the Rule of Law as Americans in the process of Advice and Consent of Judge Amy Coney Barrett.


    1. james October 15, 2020 8:14 am Reply

      Why wasn’t your “rule of law” followed when Obama made his nominee and the Senate did not follow the rule of law? You can’t have it both ways. Seems to most Americans like this is a big F*** you to the majority of Americans by having this double standard and ramming this confirmation through just days before the election. Karma can be a bitch so I guess the gloves are off and all options are on the table from now on.


  4. Stuart Harris October 15, 2020 5:10 am Reply

    Interesting that you failed to point out that the two dissenters were Republicans and the 7 who ruled against Dred Scott were all Democrats.

    I suggest everyone start listening to and reading the works of Thomas Sowell. He’s one of the few people who actually gets to the facts and shows what’s really going on.

    Also interesting how the media is ‘all over’ Trumps tax returns and completely silent on serious evidence of wrong doing by Joe and Hunter Biden. Even to the point of silencing the New York Post. The facts are there – find them!


  5. David Phillips October 15, 2020 9:49 am Reply

    I think a woman should always have the right to kill her own fetus. It belongs to her! Nobody should be able to take away the rights she has over her own body, even if an innocent human infant must die to make that happen…


  6. Tom October 17, 2020 8:15 am Reply

    Thank you Stuart. I was just about to post the same critique of Gary’s letter to the editor. He “conveniently” left out the fact that a Democratic-controlled Supreme Court led the Dred Scott decision. The Republicans were furious. So does that mean Democrats today are in favor of slavery? Of course not. So why bring up an erroneous decision from over 100+ years ago? It was a bad decision. It was overturned by the 13th and 14th Amendments. And it led to the Civil War. BUT it was a Democrats decision, and they have to own it. Unless, of course, the Liberal Left Cancel Culture decides to re-write history.


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