The License Cases

About the Author

Roger Brooke Taney's legacy on the Supreme Court has been dominated by a bit of judicial overreaching that changed the course of history: his opinion in Dred Scott v. Sandford, also known as the Dred Scott Case. Taney served as the United States' fifth chief justice for nearly three decades, for much of that period expanding upon precedents set by his illustrious predecessor, John Marshall. He made important inroads in such areas as federal laws concerning corporations and the application of the Constitution's commerce clause, skillfully balancing the old demands of federalism with the new emphasis on states' rights that characterized the age of Andrew Jackson. Although he wrote more, and not insignificant, opinions after Dred Scott, Taney could not outlive the opprobrium that flowed from the decision that declared both that African Americans were not citizens and that the Missouri Compromise—a congressional effort to preserve the balance between slaveholding and non-slaveholding states—was invalid. As the noted Supreme Court historian R. Kent Newmyer has remarked, after Dred Scott, “There was nothing left but the grim logic of marching men” (Newmyer, p. 139).

Taney was born into a Catholic family that first settled in the Maryland Tidewater region in the middle of the seventeenth century. Taney's mother had an aristocratic background, but his father was descended from an indentured servant who worked his way up in the world. By the time of Taney's birth in 1777, his father was a wealthy tobacco planter who lavished an excellent education on his second son, who would be obliged to earn his own living. When he was only fifteen, Taney entered Dickinson College in Pennsylvania, from which he graduated as valedictorian in 1795. After three years of reading law in the offices of Judge Jeremiah Chase in Annapolis, Maryland, Taney was admitted to the state bar. That same year he embarked on a political career, serving first as a Federalist member of the Maryland House of Delegates. His career there proved short-lived when the 1800 election brought the Jeffersonian Republicans to power. Taney moved to Frederick, Maryland, where he maintained a successful legal practice. After several defeats he also reentered politics in 1816 as a state senator.

When the Federalist Party disintegrated, Taney joined the Democratic movement led by Andrew Jackson. Taney proved himself a party faithful by serving as state chairman of the committee to elect Jackson as president. In 1831, while Taney was serving as Maryland's attorney general, Jackson named him to the same position in his cabinet. Taney was also to serve concurrently as Jackson's acting secretary of war. A Jackson stalwart, Taney also played an important role in the president's war on the Bank of the United States in 1832: When Jackson decided to kill the bank by withdrawing federal deposits, it was Taney who fulfilled this mission after two successive secretaries of the treasury refused to comply with the order. A grateful Jackson sought to reward Taney, but the Senate, alienated by the president's unilateral maneuvers, declined to confirm Taney as secretary of the treasury and indefinitely postponed a decision on Taney's nomination to the Supreme Court as an associate justice. Jackson tried again a few months later, nominating Taney as the replacement for Chief Justice John Marshall, who had died on July 6, 1835. The Senate again delayed voting on Taney's nomination, but after a closed executive session, Taney was confirmed.

Following in the wake of the man known as the “Great Chief Justice,” Taney had large shoes to fill. He had a reputation as a political hack who was expected to do Jackson's bidding on the Court, just as he had in the cabinet. As if to underscore his political orientation, when making his debut on the Court, Taney broke with tradition by appearing in long trousers—emblematic of radical democracy—rather than the knee breeches sported by his predecessors. But instead of undoing the constitutional nationalism that was the legacy of the Marshall Court, the Taney Court developed what had gone before by expanding it into a more equitable sovereignty shared with the states. The first three cases that came before the Taney Court had been argued during Marshall's tenure, and all three presented questions concerning the balance of powers between federal and state governance. Taney himself wrote the opinion of the Court for the most significant of these cases, Charles River Bridge v. Warren Bridge, which departed from Federalist doctrine by allowing that rights vested in states can sometimes override prohibitions memorialized in the Constitution's contracts clause. The Taney Court's gradualism and ability, as demonstrated in the License Cases, to craft compromises between state and federal authority earned the public's respect. Roger Brooke Taney was on course to become one of history's most respected jurists until the Court decided—perhaps unnecessarily—to take on the issue of slavery.

Dred Scott proved to be Taney's undoing—as it nearly did for the nation. Taney lived for another seven years, during which he wrote a number of laudable opinions, such as his 1861 opinion in Ex parte Merryman, a circuit court case condemning President Abraham Lincoln's suspension of the writ of habeas corpus. Lincoln simply ignored the decision; he could do so because Dred Scott had thoroughly undermined Taney's authority. Broken, embittered, and impoverished, Taney died while still in office on October 12, 1864—the same day his home state abolished slavery.