Balkinization: Why Would An Inferior Court Judge Ever Cite Dred Scott?

Why Would An Inferior Court Judge Ever Cite Dred Scott?

Brad DeLong thinks I've made a mistake in logic:

the fact that somebody cites Dred Scott for Argument X is a powerful sign that they couldn't find another court making Argument X to cite instead. And the fact that a certain type of argument appears rarely except in Dred Scott is a powerful sign that it is a bad argument.

Um, no. The D.C. Circuit cited Dred Scott because it believed that there were only two Supreme Court cases relevant to the question of whether the Second Amendment protects an individual or a collective right. The first was United States v. Miller, decided in 1939. The second is Dred Scott v. Sanford, decided in 1857. This paucity is not unusual, nor, as Brad seems to think, is it a sign that the arguments contained in either of these decisions are bad arguments.

The Supreme Court writes opinions in very few cases, sometimes (as in the 2004 Term) less than 100 a year. There are some legal questions it has never taken up; there are others for which there are only one or two decisions even close to being on point. (There are still others for which the only discussion appears in concurring or dissenting opinions, and so on).

Given the scarcity of Supreme Court precedents, lower courts naturally cite anything even remotely relevant. In this case, the D.C. Circuit believed that Miller had not conclusively chosen the collective rights theory over the individual rights theory. (I don't agree, but the issue, like so many other things in law, is debatable). It then asked whether there was any other Supreme Court precedent. The only other Supreme Court precedent was Dred Scott, which the D.C. Circuit believed pointed to the individual rights theory.

Similarly, when the Supreme Court decided the Insular Cases in 1901, both sides cited to Dred Scott as authority. Was it because both sides were bad lawyers? No. It was because Dred Scott was one of the few cases that had construed Congress's authority to regulate federal territories.

Contrary to Brad's assumption, we cannot infer from the fact that there are only one or two Supreme Court precedents on a question the conclusion that the arguments contained within them are bad arguments. That is a non sequitur. It confuses the frequency of positions held in a sufficiently large population of expert opinions with the frequency of positions stated in Supreme Court opinions. A view may be rarely stated among experts because it is a stupid view. (Of course, that is not always true, if the view is a highly technical scientific claim that only a few people have the capacity to evaluate). However, a view may be rarely stated in the corpus of Supreme Court opinions because the Supreme Court has heard few cases directly on point and/or we are facing a case of first impression. That is what the D.C. Circuit thought was involved in Parker. Hence it looked around for whatever Supreme Court opinions it could cite and cited all of them.

But why did the D.C. Circuit feel compelled to cite Dred Scott given that there is other evidence that antebellum legal scholars believed that the Second Amendment protects an individual rather than a collective right? Simple. Most of those sources are not court decisions. And the D.C. Circuit is an inferior court that looks first and foremost to the decisions of higher courts for guidance. The court above it is the U.S. Supreme Court, so this is the first place the D.C. Circuit would be expected to look for authority. Generally speaking, competent judges will cite everything by higher courts that they can get their hands on that is remotely related to the issue at hand. If Silberman hadn't cited Dred Scott, even to dismiss it, somebody could accuse him of missing one of only two Supreme Court decisions remotely on point.

I think Brad may also be conflating two different notions of what makes something an authority for an argument. An economist might look to any learned authorities he could to assess the credibility of a contested position, and if few authorities make the claim, that is evidence that the claim is implausible. From this perspective what makes an authority an authority is that it is likely to be correct and that the authority's views are well reasoned. But what makes the statements of a legal actor authoritative with respect to a lower court is that the actor occupies a particular place in the hierarchy of legal sources. For example, the Supreme Court's decisions are normally considered more authoritative than the decisions of lower federal courts and state courts. But if that is so, it is not because the Supreme Court makes smarter arguments. Rather, lower courts are required to look to the decisions and reasoning of superior courts because of the doctrines of stare decisis in a hierarchical court system. That is certainly no way to do science. But it is how you do law in a court system like we have in the United States.

Brad thinks that my failure to infer the probabilities as he does is a "trained incapacity" on the part of lawyers. Needless to say, I don't agree. Rather, it shows that we bring different presumptions to assessing what counts as a good or bad legal argument based on our professional training. In this case, I think I can give a more sympathetic (and appropriate) account of what Judge Silberman did even though I disagree with some aspects of Silberman's opinion.

Posted 6:18 AM by JB [link]

Comments:

If one follows DeLong to his "reductio" conclusion, then it must also be per se improper ever to cite to a dissent -- or arguably even a concurrence.

Clearly that is not correct.

# posted by

KipEsquire : 8:33 AM

On the contrary, at times it is permissible to cite only the dissent: we cite Holmes today, not MacReynolds.

Statements like "the D.C. Circuit is an inferior court that looks first and foremost to the decisions of higher courts for guidance. The court above it is the U.S. Supreme Court, so this is the first place the D.C. Circuit would be expected to look for authority..." appear to me to be willfully obtuse. The D.C. circuit looks to a selected subset of Supreme Court opinions, concurrences, and dissents chosen according to a set of practices that are obscure to me.

If Professor Balkin has a theory as to why a case that was an unsuccessful right-wing attempt at a constitutional moment--to replace structural-political protections of slavery with legal-formal protections woven out of whole cloth--should have precedental value today, let's hear it. If not, not.

# posted by

brad : 10:23 AM

Nat, nothing in what I've said suggests that one has to adopt a strongly hierarchical view of legal sources. Silberman cited to lots of sources in his opinion to demostrate that the Second Amendment protected an individual right. But he also cited to language in Dred Scott, and the reason he did so is that it is one of the two S.Ct. opinions remotely close to the issue at hand, even if it is dicta.

Lower courts cite to dicta by higher courts all the time for guidance, in part because they are dicta by higher courts. They don't have to accept dicta as binding, but lower courts do think it important to note what higher courts have said. In this case, the language in Dred Scott confirms the assumption that by the middle of the 19th century it was accepted that the right to bear arms was an individual right.

If this were any case but Dred Scott, nobody would make much of a lower court citing to language in a Supreme Court opinion, other than to point out that the language was dicta. But in this case, because the language comes from Dred Scott, the assumption is that the claim is likely to be wrong because Dred Scott is evil and wrong and so everything in it must be equally evil and wrong. I think the latter assumption is just silly.

# posted by

JB : 10:57 AM

McReynolds wrote U.S. v. Miller w/o dissent. In fact, he also wrote Meyer/Pierce ... Holmes dissented. We cite the majority. I dare say he wrote other opinions worthy of citation as well.

Nat, I am only an amateur scholar on the case, but as I recall, an actual scholar, Don Fehrenbacher, suggested Taney really had every right to address all the matters addressed below (or on the plea of abatement ... whatever the proper term might be).

I don't know if trying to find some pearls of wisdom in the ruling is useful though. It is an interesting academic exercise. It also might be of minor interest if the citation, such as rights of gun possession in federal territory, is barely covered in other rulings.

It is a bit much in fact to ignore that on the issue of "the Constitution follows the flag" Taney is actually on sounder ground than others who disagree, in fact in regard to actual current doctrine, just because of a blindspot on the slave issue.

Are we to treat other rulings with some pro-slavery implications similiarly? I have my doubts.

# posted by

Joe : 1:21 PM

Are we to treat other rulings with some pro-slavery implications similiarly? I have my doubts.

As an example, take Ableman v. Booth. That case held that state laws could not nullify federal ones. In this particular case, the law at issue was the Fugitive Slave Law. However, appalling the facts might be, I see no reason to doubt that Ableman is good law.

That's perhaps too easy, since Ableman could be cited for its direct holding, while Dred Scott would more likely be cited for dicta (as it was by Silberman). From my perspective as a litigator, I doubt that such dicta could ever supply enough value to justify the cite.

# posted by

Mark Field : 1:50 PM

One of the paradoxes of Dred Scott is that it says that you really get a bundle of important rights if you're a US citizen (which was, inferentially, one of the reasons that blacks could not ascend to that hallowed status); among these rights was the right to bear arms. Ironically, once blacks did become citizens, after 1866, the Supreme Court adopted a decidedly dessicated notion of the "privileges or immunities of United States citizenship" in the Slaughterhouse Cases. Is this a mere coincidence? Isn't Slaughterhouse, as Pamela Brandwein has argued, also a case that must be understood through a racialist filter, so that the majority of the Court adopts a more "Johnsonian" view of what counted as "mission accomplished" re the slaughter of 2% of the US population than a Lincolnian account that would emphasize a genuinely "new birth of freedom" for all, including a robust set of constitutional rights for newly-freed (but still widely despised by the white southerners still in contol) former slaves.

It is, frankly, a scandal that the Dred Scott opinion is not more widely taught and seriously grappled with (whether for the Garrisonian view of the Constitution or the meaning of US citizenship) and is instead treated as almost literally unmentionable in polite company.

# posted by

Sandy Levinson : 2:35 PM

It is, frankly, a scandal that the Dred Scott opinion is not more widely taught and seriously grappled with (whether for the Garrisonian view of the Constitution or the meaning of US citizenship) and is instead treated as almost literally unmentionable in polite company.

Perhaps we've reached the point where Con Law ought to be a two year class. Of course, I also think we've reached that point for US history in high school. Instead, teachers at both levels have to make increasingly more difficult choices regarding what to emphasize. Eventually, all the students get is disembodied facts.

Isn't Slaughterhouse, as Pamela Brandwein has argued, also a case that must be understood through a racialist filter

Absolutely. Truth is, a great many cases before and after the Civil War must be viewed through a racialist filter; Southern concerns about race implicated all aspects of Supreme Court decision-making. But Slaughterhouse seems conspicuous in that regard, as much so as Reese or Cruikshank, at least.

# posted by

Mark Field : 3:14 PM

Yes, MF, that probably works.

I was also thinking about Taney's "follow the flag" sentiment, so to speak, and how the liberal view in the Insular Cases partially used his sentiments. I wonder ... I have this idea he would find some way to differentiate territories dominated by non-whites.

# posted by

Joe : 11:31 PM

I was also thinking about Taney's "follow the flag" sentiment, so to speak, and how the liberal view in the Insular Cases partially used his sentiments. I wonder ... I have this idea he would find some way to differentiate territories dominated by non-whites.

Interestingly, the Taney court held, unanimously, that the Treaty of Guadalupe Hidalgo incorporated Mexicans (non-white, at least in those days) as citizens of the US. US v. Richie, 58 US 525 (1855). Of course, you have to read that in the context of Dred Scott's distinction between US citizenship (very limited rights) and state citizenship (most rights).

# posted by

Mark Field : 11:51 AM