Taney’s Ghost

Roger B. Taney, Chief Justice of the US Supreme Court, Collection of the US Supreme Court. Artist: George P.A. Healy, Screenshot image courtesy of oyez.org.

The “Twaney Court:” a 2024 US Supreme Court is likened to the 1850’s Taney Court, channeling pre-Civil War America.

Few periods in United States history have the Supreme Court been divided by as many as 5 votes, on most issues, assuring one side dominance over the other. One of the 7–2 margins occurred during the pre-civil war 1850’s when Judge Roger B. Taney assumed the mantle of Chief Justice. (1)

What such a composition would mean in 2024 for the “American Experience,” is worth noting, particularly as there has been a recent spark of debate about composing a more representative institution. (2)

Assuming Justice Sotomayor’s imminent retirement (3) and a 2024 Republican Senate majority — another possibility — the current court makeup could approach a 7–2 tipping point. A 7–2 majority is different than a 6–3 majority: 3 rather than 2 votes would be required for returning to and reviewing controversial laws and hearing divided judicial decisions the primary business of the Court. This means a predetermined set of decisions could be retried anticipating a different outcome and a new host of previously decided cases could be re-scrutinized. A new abiding focus on what could be decided by a majority would take hold.

Not that America could have anticipated a Supreme Court lack of decision in 1856, as well as in 2023. Not that America could…