(b. Calvert County, Md., 17 Mar. 1777; d. Washington, D.C., 12 Dec. 1864; interred St. John the Evangelist Cemetery, Frederick, Md.), chief justice, 1836–1864. Roger B. Taney is best known as the author of one of the most infamous opinions ever written for the Supreme Court, the majority opinion in Dred *Scott v. John F. A. Sandford (1857). It is perhaps no surprise, then, that many students of American constitutional and legal history have a passionate, almost instinctive, negative reaction to the mention of Taney’s name. Yet when the American Bar Association asked professors of law, history, and political science to evaluate Supreme Court justices, they ranked Taney in the “great” category along with giants John *Marshall, Oliver Wendell *Holmes, and Louis D. *Brandeis. Obviously many people associate Taney with only a narrow phase of his career—indeed,(p. 1001)

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Roger Brooke Taney

with a single case—while overlooking virtually everything else.

Roger Brooke Taney was descended from a prominent and aristocratic tobacco-growing family. The family tradition was conservative agrarian; its politics during Taney’s formative years were pro-Constitution, pro-Federalist, and strongly supportive of the rights of private property. Being a second son (the eldest inherited the family plantation), Roger was educated and trained for the law. He practiced briefly in Annapolis and then in Frederick, where he developed into one of Maryland’s foremost attorneys. That inevitably led to election to the state legislature, first as a member of the House of Delegates and then as a state senator. In short order he became a leader in Maryland’s Federalist party.

In 1806 Taney married Anne Key, daughter of wealthy farmer John Ross Key. (Her brother, Francis Scott Key, achieved everlasting fame when he authored “The Star Spangled Banner” during the dramatic bombardment of Baltimore’s Fort McHenry in the War of 1812.) Taney was Roman Catholic, his wife Episcopalian. They reconciled religious differences by agreeing that sons would be raised as Catholics, daughters as Episcopalians. The Taneys had six children who survived, all girls.

Early Career

During his years in the Maryland legislature, Taney found himself often involved in matters of finance and banking. Representing a rural agrarian constituency, he viewed with misgivings the monopolistic tendencies of Baltimore banks, though he supported others that dealt more favorably with farmers. Like many of his fellow Federalists, Taney’s politics were somewhat erratic. Early a supporter of the national bank (he would turn against it after becoming a staunch Jacksonian), Taney nevertheless essentially endorsed states’ rights. This showed especially in his views toward *slavery. He freed his own slaves (whom he inherited), but he opposed giving the federal government authority to limit the institution, holding that that power rested in the individual states. These early-held tenets would remain with him throughout his later judicial career.

By the time Taney’s term in the Maryland senate expired in 1821, the Federalist party had fallen into disarray, both nationally and in the individual states. Taney soon found a new political home: the Democratic party of Andrew *Jackson. By 1826 he emerged among his state’s Democratic leaders, and he was elected Maryland’s attorney general, a post he held for five years. Along with a creditable legal performance, Taney’s handling of patronage earned him a reputation as a loyal Jacksonian. Accordingly, when the Peggy Eaton affair forced a reorganization of President Jackson’s cabinet in 1831, Taney was summoned to Washington as attorney general of the United States.

As attorney general (1831–1833), Taney rendered opinions that comported with his earlier constitutional views and that presaged his later judicial tenets. A steadfast Jacksonian, he viewed moneyed and monopoly-protected interests as threats to economic democracy, concepts starkly expressed in Jackson’s famous bank veto message, which Taney helped draft. Taney believed unwaveringly in a divided state-federal sovereignty and in the power of the Supreme Court to decide on the locus of undetermined *concurrent powers. As to slavery, however, he authored an opinion that asserted unequivocally that except where the Constitution expressly granted power to the national authority, control over slavery rested exclusively with the states.

Taney’s elevation to the Supreme Court climaxed a unique scenario of partisan Jacksonian politics. Having vetoed the recharter of the Second Bank of the United States, President Jackson sought to speed the “monster’s” demise by transferring federal deposits into state banks. However, statutory authority to move those funds rested in the secretary of the treasury. Two secretaries resigned rather than acquiesce in Jackson’s tactics. Finally, in 1833, the president shifted a more compliant Taney from Justice to Treasury, and he removed the funds. Taney’s new post was an (p. 1002) interim appointment; when Congress convened and the president requested the appointment be made permanent, the Senate rejected it. Taney thereupon returned to private practice in Baltimore. In the next two years, however, several vacancies opened on the Supreme Court, and Jackson sought to fill them with suitable nominees. He proposed Taney to replace Associate Justice Gabriel *Duvall, but Jackson’s opponents in the Senate mustered enough votes to reject the nomination. When Chief Justice John Marshall died in 1835, Jackson again submitted Taney’s name, this time to be chief justice, along with the nomination of Philip P. *Barbour to fill Duvall’s stillvacant seat. On 15 March 1836, after an executive session in which no records were kept, the Senate confirmed both nominations. Anti-Jacksonians lamented that the Supreme Court had been sullied with a “political hack.”

Service on the Court

Taney succeeded a remarkable jurist, John Marshall, who left an extraordinary legacy that scholars have labeled “constitutional nationalism” and “national capitalism.” Taney’s philosophy differed. He was a consummate Jacksonian. Though an aristocrat who inherited conservative tidewater traditions, he believed like Jackson in the new West and its agrarianism. He was dedicated also to Jacksonian economic principles, especially to the processes of economic growth and competition. (It is worth noting that where Marshall affected knee breeches, Taney wore long trousers—“sans culottes”—symbolic of democratization.) Taney’s devotion to the Union, like Marshall’s, was unequivocal; yet, unlike Marshall, he saw much merit in states’ rights. After all, Taney grew up after the American Revolution and was not affected by the same driving nationalism that influenced Marshall.

Taney’s appointment to the Supreme Court coincided with a general turnover of the Court’s personnel, and within a few years Jacksonians dominated. This development alarmed those who feared that *property rights would be at the mercy of state legislatures, but Taney proved to be a skillful and shrewd tactician who knew how to exercise *judicial self-restraint. He led the Court along pathways of pragmatism and compromise, virtually devoid of dogmatism—except on the issue of slavery. In the end, Taney proved as vigilant as his predecessor in maintaining federal authority over American economic development.

The new chief justice did not have long to wait before making his mark on American jurisprudence. In *Charles River Bridge Company v. Warren Bridge Company (1837), the Court faced the unremitting dilemma of American democratic capitalism: the conflict between the rights of private property and those of society. Taney asserted a basic premise of American constitutional thought: “The object and end of all government is to promote the happiness and prosperity of the community. … While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation” (p. 420).

The problem was where to draw the line. Moderating Marshall’s categorical primacy of vested rights, Taney stressed process over doctrine and purposefully adapted the rule of law to the historical realities of change and progress. Later jurists (with some notable exceptions) would reason in the same vein as commercial expansion and technology transformed American society from rural agricultural to urban industrial. Building on Taney’s Jacksonian tenets, they would gradually formulate a philosophy that emphasized the social responsibilities of private property.

The Court’s adaptation of process in Charles River Bridge paved the way for further assessments of Marshall’s nation-centered views of the *Contract and Commerce Clauses. In a series of momentous decisions—which included *New York v. Miln (1837), *Bank of Augusta v. Earle (1839), *Swift v. Tyson (1842), the *License Cases (1847), the *Passenger Cases (1849), *Genesee Chief v. Fitzhugh (1852), and *Cooley v. Board of Wardens of the Port of Philadelphia (1852), among others—the Taney Court asserted a concurrent federal-state relationship that warranted state supervision as long as it did not interfere with a federal statute. That freed the new technology from monopolistic restraints of established *corporations and outmoded charters. Without weakening federal regulative powers, except for negating exclusivity, these cases broadened the sphere of laissez-faire and competition and raised the status of state involvement in contract and corporate affairs, thereby allowing the burgeoning West and the new technology to lead the nation reasonably untrammeled into the future (see commerce power).

Contrary to considerable popular misconception, then, Taney did not reverse the Marshall trend and institute radical agrarian egalitarianism and state sovereignty. On the contrary, he preserved and refined the main lines of Marshall’s constitutional law, opened economic opportunities for many Americans, and retained a strong national power redefined to accommodate a judicious dual sovereignty.

Nevertheless, Taney is remembered most for Dred* Scott. Yet that decision comported with his earlier constitutional record on slavery, including opinions rendered as attorney general. In several cases preceding Dred Scott, Taney and his colleagues cautiously refrained from passing on the fundamental issue of slavery, exercising a (p. 1003) modified judicial restraint by stressing process. In *Groves v. Slaughter (1841) and in Strader v. Graham (1851), for instance, the Court evaded major substantive issues while striking a blow for state determination of the status of slavery. (Yet in *Prigg v. Pennsylvania, 1842, Taney supported federal supremacy when state law interfered with Congressional fugitive-slave legislation.)

By 1857, however, the slavery issue had reached explosive proportions. Even though he saw nothing positive about the institution of slavery itself, Taney withal was a southern gentleman imbued with southern values, and here was an opportunity to settle the issue. Furthermore, the majority of the Court was southern and proslavery. The result was Dred Scott: (1) blacks could not be citizens of the United States; (2) slaves were property protected by the Constitution; and (3) a state could decide for itself if someone formerly emancipated should revert to slavery within that state’s boundaries. Coming when forces already were setting the stage for civil war, Taney’s inflammatory opinion of the Court added enough fuel to the fire that it became unextinguishable.

Taney lived for seven years after Dred Scott, but the rancor engendered by that decision dogged him for the rest of his life. Even though he remained a loyal Unionist in the *Civil War and sought to protect constitutional rights precariously stretched during that conflict, his effectiveness on the Court waned, just as did that of the Court itself, both casualties of Dred Scott. Taney died a weary octogenarian whose final years suffered from anger, bitterness, and frustration.

Taney brought infamy upon himself because he viewed the alleged inferiority of blacks as an axiom of both law and the Constitution, a legal discrimination that he saw sanctioned even in the *Declaration of Independence. No wonder so many react negatively to his constitutionalism. Yet when scholars evaluate Taney’s overall contributions to American jurisprudence, they rank him, in spite of Dred Scott, among the greats.

See also state sovereignty and states’ rights.

Frank Otto Gatell, “Roger B. Taney,” in The Justices of the United States Supreme Court 1789–1969, edited by Leon Friedman and Fred L. Israel, vol. 1 (1969), pp. 635–655. Walker Lewis, Without Fear or Favor: A Biography of Chief Justice Roger Brooke Taney (1965). Carl Brent Swisher, Roger B. Taney (1935). Samuel Tyler, Memoir of Roger Brooke Taney, LL.D. (1872).

Walter Ehrlich