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William H. Rehnquist and Roger B. Taney

September 06, 1986

Analogy is the mother's milk of Anglo-Saxon legal thinking. Our rich system has grown, largely because judges, attorneys, and in recent times, legislators have seized upon the similarities in apparently dissimilar situations to fashion "new," dynamic and often controversial legal principles. Sometimes, the milk curdles, and analogical thinking becomes strained, as lawyers weave thin strands by "extending" vague principles to totally novel situations. Historians deal more cautiously with the always tempting appeal of analogy.

When was the last time you heard of a parallel between 20th Century America and the decline of the Roman Empire (or perhaps Republic)? As both a lawyer and an historian, I am struck, though not overwhelmed, by--let us say--an historical parallel or, at least, coincidence between the nomination for chief justice of the United States today and exactly 150 years ago.

The nominating Presidents, Andrew Jackson and Ronald Reagan, were both "strong" men who generally favored states' rights over the supremacy of the federal government and who believed in a powerful, if not imperial, presidency. They regularly derided Congress. Both have been accused of endorsing a "spoils system," though, of course, not the same spoils system. Both proclaimed themselves "populists," though, again the definitions were different.

Their nominees were clearly intellectually able, perhaps brilliant, men who clearly shared the agendas of their sponsors.

Of Roger B. Taney, one historian has written "he came to the Supreme Court determined to apply 'Jacksonian reform' to the last holdout branch of the federal government."

Both were controversial, and, indeed, Jackson's candidate had already been rejected once for an associate justiceship (technically the Senate, at the insistence of Daniel Webster of Massachusetts, indefinitely postponed consideration).

Taney had been attorney general of the United States, while Justice William H. Rehnquist was a former deputy attorney general. Both men can only be called strong-minded and highly individualistic, if not idiosyncratic. Both would come to the Supreme Court during an era of profound social and economic turbulence and imminent change.

Taney was 59 years old, while Rehnquist is two years older. Both could have been expected to serve a long time, and Taney did--for 28 years. Finally, again to cite an historian, "Taney came to the court amid the severest predictions of doom from his political opponents."

Racial issues were not prominent in 1836, since the Abolition movement was in its early years. Today, such issues--and Justice Rehnquist's attitude--are significant, although the context has altered (not altered enough, some may argue).

Taney's position was well known, as is Rehnquist's. Taney rendered many significant decisions, even eminently estimable ones, during his long career on the court, but he is remembered today for his Dred Scott opinion of 1857:

"We think (blacks) are not (citizens) . . . and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of (its) rights and privileges . . . . On the contrary, they were (in 1787) considered as a subordinate and inferior class of beings . . . and had no rights or privileges but such as . . . the Government might choose to grant them."

While the Taney-Rehnquist analogy may be strained, our fourth chief justice clearly shared the currently chic philosophy about the Supreme Court's role in society: "The duty of the court is, to interpret the (Constitution) as we find it, according to its true intent and meaning when it was adopted." Could Justice Rehnquist or the current attorney general have put it better?

If the term analogy is too discomfitting, and even "historical parallel" is a bit strained, why don't we just regard the matter as intriguing coincidence?

If Taney's decision in Dred Scott unwittingly produced an Abraham Lincoln and the 13th, 14th, and 15th Amendments to the Constitution, perhaps a future Rehnquist decision will engender some equally exalted national changes.

We can only hope that our probable new chief justice would approve such changes, rather than resist them, as did his predecessor.

ISIDORE SILVER

New York

Silver is professor of constitutional law and history at John Jay College of Criminal Justice, City University of New York.

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