Book Reviews2 Lincoln and Chief Justice Taney: Slavery, Secession and the President’s War Powers

May 15, 2009

Book written by: James F. Simon. New York : Simon & Schuster. 324 pages. Hardback. November 2006. ISBN 0-7432-5032-X

Most people know the name Abraham Lincoln, but many are not familiar with that of Roger Brooke Taney, the fifth Chief Justice of the United States and the first Roman Catholic to reach this exulted position. This book by James F. Simon, the Martin Professor of Law and Dean Emeritus at New York Law School, focuses on Taney, but also mentions Lincoln.

Roger Brooke Taney was born on March 17, 1777 in Maryland. His family originally had been members of the Church of England, but a later generation converted to Roman Catholicism. Simon says in his introduction that Taney was a devout Catholic, but not so devout that he married outside of the Church to Anne Key, the sister of Francis Scott Key who composed our national anthem. He also raised his six children as members of his wife’s church.

Taney went and studied law in Annapolis, Maryland. He was admitted to the bar in 1799 and served in the Maryland legislature. Taney’s views on slavery which was an institution that he would have to make legal decisions on as Chief Justice were that he personally disapproved of it, but considered it legal. He, like others, hoped that slavery would eventually die out. He supported the idea to send former slaves back to Africa and found a colony there for them. He defended an abolitionist in 1819. His understanding of the Constitution, lead him to believe that the Federal government could not abolish slavery. It was up to the individual states to abolish slavery which some states had done before the Civil War.

Taney in 1827 was appointed the Attorney General of Maryland and became involved in Maryland for the election of Andrew Jackson. Later Jackson appointed him Attorney General of the United States. Jackson tried to get Taney appointed first as his Secretary of the Treasury and later as an associate justice on the Supreme Court, but Jackson had too many enemies in the Senate by then, 1834. All seemed finished for Taney at this point.

On July 6, 1835 Chief Justice John Marshall died. President Jackson decided to nominate Taney for that post. Things in the Senate had changed by then and Jackson was able to get Taney appointed as the fifth Chief Justice of the United States. Taney served as Chief Justice for over 28 years, from 1836 to 1864. James Simon tells the story of Taney’s court and the decisions they made. Taney was not always part of the majority. The most famous decision the Taney court made and which Taney wrote the majority decision was the Dred Scott case. Because he and the majority of the justices decided against Dred Scott which declared him to be a slave and not a citizen who could go to court, the Supreme Court lost prestige and honor in the northern states. This also affected their influence during the Civil War. Taney was seen as a traitor since he supported slavery in his court decisions and also thought it was permissible for a state to peacefully secede from the Union. President Abraham Lincoln and others in Washington and many people in the North did not agree with him.

President Lincoln thought that suspending the writ of habeus corpus was important during the Civil War, but Taney did not agree and opposed Lincoln on this as much as he could. This was part of Lincoln’s actions during the Civil War. Lincoln thought he could create a draft and this was opposed too by Taney. James Simon goes into all of these issues of the war powers of the President. Lincoln’s actions were later approved by the Congress and the Supreme Court after Taney’s death.

James Simon shows that Abraham Lincoln was a shrewd politician who studied his opponent and the issues. Abraham Lincoln at first did not want to free the slaves, but only later as the Civil War continued did he change his mind. His main purpose in the War was to preserve the Union. He did not think that Blacks were equals to Whites, but he did not think slavery was morally correct either. Chief Justice Taney did not think slavery was morally correct too, but he could not find in the Constitution where he could say that it was unconstitutional.

James Simon’s book is recommended to Civil War enthusiasts, those interested in the biographies of judges and presidents, and those interested in legal history.

James F. Simon is the author of What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (2003), The Center Holds (1999), Antagonist (1989), Independent Journey (1981), The Judge (1976) and other books and articles.