In the Oct. 8 debate, President Bush baffled some people by saying he wouldn't appoint anyone to the Supreme Court who would condone the Dred Scott decision. Dred Scott was, of course, the famous 1857 Supreme Court decision that affirmed slaves remained the property of their owners even when taken to free territories and that prohibited even free African-Americans from becoming U.S. citizens. Since the Civil War and the subsequent passage of the 13th and 14th amendments, Dred Scott v. Sandford has been a dead letter in American jurisprudence. Yet Bush felt compelled to reassure TV viewers that he wanted no truck with its legal reasoning:
Another example would be the Dred Scott case, which is where judges, years ago, saidthat the Constitution allowed slavery because of personal property rights.
That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all—you know, it doesn't say that. It doesn't speak to the equality of America.
And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.
And I suspect one of us will have a pick at the end of next year—the next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.
What was the meaning of this borderline-incoherent ramble? Apparently, it was an invisible high-five to the Christian right. "Google Dred Scott and Roe v. Wade," various readers instructed me, and damned if they weren't on to something. To the Christian right, "Dred Scott" turns out to be a code word for "Roe v. Wade." Even while stating as plain as day that he would apply "no litmus test," Bush was semaphoring to hard-core abortion opponents that he would indeed apply one crucial litmus test: He would never, ever, appoint a Supreme Court justice who condoned Roe.
You're skeptical. You think your faithful Chatterbox is drifting into "Abraham Lincoln had a secretary named Kennedy" territory. Perhaps you've even done a little Googling of your own and discovered that while, yes, it's true, George Will once called Roe "the most imprudent act of judicial power since the Dred Scott decision," he has similarly compared Dred Scott to Brown v. Board of Education and even to France's attempts to slow down the United States' entry into the Iraq war. (One imagines Will, looking out the window from his office, could on any given afternoon identify three or four cloud formations that remind him of Dred Scott.)
But keep Googling, and you'll soon discover that Will is hardly the only conservative commentator who's compared Roe to Dred Scott. There's Paul Greenberg, the Arkansas columnist famous for nicknaming Bill Clinton "Slick Willie." There's Jeff Jacoby, house winger at the Boston Globe. There's Michael Novak, the theologian-turned-think-tank-hack. There's Peggy Noonan, former speechwriter to Ronald Reagan (also Reagan himself, in his essay, "Abortion and the Conscience of a Nation"). Several conservative legal commentators have made the comparison, too, including Michael McConnell of the University of Utah, now a federal judge on the 10th Circuit Court of Appeals.
If, in the mainstream conservative media, the Dred Scott trope is common, in Christian right propaganda it is, like the Good Lord Himself, omnipresent.
Sometimes it's used to decry judicial activism. "Dred Scott shows us two things," writes Robert S. Sargent Jr., on EnterStageRight.com. "The mischief that 'activist' judges always do, and the fact that people are sometimes willing to resort to a Constitutional amendment to overturn a Supreme Court ruling."
Sometimes it's used to put the destruction of fetuses on a moral plane with slavery. From an unsigned essay on the Web site Unbornperson.com:
In a previous case, the Dred Scott decision, (1857) fully-grown men and women (because their skin was black?) were declared "non-persons" by the Court, by denying them the status of free men. In Roe v. Wade the offspring of human parentage who are waiting to be born, simply because they are not yet born, are called non-persons ("not persons in the full sense") by the Court. In the former instance the legal consequence was slavery. In this present case, the legal consequence is death.
Sometimes it's used to encourage the troops to keep hope alive. "Like Dred Scott, Roe has the potential to be overturned, given the right circumstances and the right make-up of the Supreme Court," says the Republican National Coalition for Life.
Sometimes it's used to inspire fear. Here's an editorial in Touchstone: A Journal of Mere Christianity: