Judicial activism and the Dred Scott decision

To commemorate today's truly empathetic Supreme Court majority decision, here's an example of real judicial activism.

[Scott] was an opinion [Roger B. Taney] had long wanted to write. Eighty years old, the chief justice was frail and ill. The death of his wife and daughter two years earlier in a yellow fever epidemic had left him heart-stricken. Yet he clung to life determined to defend his beloved South from the malign forces of Black Republicanism. In his younger days Taney had been a Jacksonian committeed to liberating American enterprise from the shackles of special privilege. As Jackson's secretary of the treasury he had helped destroy the Second Bank of the United States. His early decisions as chief justice had undermined special corporate charters. But the main theme of his twenty-eight year tenure on the Court was the defense of slavery. Taney had no great love of the institution for its own sake, having freed his own slaves. But he did have a passionate commitment "to the southern life and values, which seemed organically linked to the peculiar institution and unpreservable without it." In private letters Taney expressed growing anger toward "northern aggression." "Our own southern countrymen" were in great danger, he wrote, "the knife of the assassin is at their throats." Taney's southern colleagues on the Court shared this apprehension, according to historian Don Fehrenbacher; Justice Peter Daniel of Virginia was a "brooding proslavery fanatic" and the other three were "unreserved defenders of slavery." Because of the "emotional commitment so intense that it made perception and logic utterly subservient," the Dred Scott decision was "essentially visceral ian origin...[sic] a work of unmitigated partisanship, polemical in spirit [with an] extraordinary cumulation of error, inconsistency, and misrepresentation."

--James M. McPherson, Battle Cry of Freedom, pages 173-4, "Mudsills and Greasy Mechanics for A. Lincoln"

In Supreme Court cases, I guess what matters is for whom the majority feel "empathy."