Thank you for inviting me to deliver the 2009 Annual Lecture of the Supreme Court Historical Society. I am a great admirer of the Society's commitment to preserving the history of the Supreme Court and to increasing the public's awareness of the Court's contributions to our nation's history.
This is an especially interesting time for the Society to be meeting because the Court, for the third time in the past 15 years, is about to have a change in its membership. As soon as my friend and colleague Justice Souter announced his intent to retire, public speculation began as to whom President Obama would nominate to replace him. And as soon as the President put an end to the speculation with his announcement that he had selected Judge Sotomayor, commentators began discussing and debating her legal views and how her presence will affect the Court's decisions. The public's interest in a change in the Court's membership reminds us that the Court, for all the technical cases it decides, also can decide controversial, contentious cases that raise questions that lie at the heart of contemporary political debates.
Today, I shall re-examine one such case. The Dred Scott decision, a case that many believe is the Court's worst mistake. By examining the case in detail, I hope to find something of value for our present day judicial institution.
The case I have chosen stands at the intersection of law and politics. Throughout its history, the Supreme Court has decided cases containing legal issues that have a significant political impact. And how the Court can, or should, make its decisions in such cases is a topic of abiding interest. Alexander Hamilton, one of the Founders of our Constitution, argued that a court is better suited than a legislative or executive body to insist that the Constitution be followed — particularly in an instance where doing so is politically unpopular. But he did not explain how we know, in such instances, that the public, or the other branches of government, will do what the Court says. And while we now assume, as a matter of course, that the Court's decisions will be followed, that was not always the case. For example, despite an 1834 Court determination that the Cherokee Indians owned Northern Georgia, President Andrew Jackson evicted the Indians, supposedly saying, Chief Justice John Marshall "has made his decision; now let him enforce it."
