On Dec. 12, Alabamans will go to the polls in a special election to determine the replacement for Sen. Jeff Sessions, who is now Donald Trump’s hatchet man at the Justice Department. Despite Republican control of every statewide office, there is a remote chance the “Heart of Dixie” may send a Democrat to the Senate for the first time in 25 years. This possible pick-up for the blue team has less to do with a resurgence of the Democratic Party there and the strong performance of its candidate, Doug Jones, than with the growing unease over the GOP’s extremist nominee, Roy Moore. As Andy Campbell reported, “Nobody really likes Roy Moore—not even Alabama Republicans.”
It’s no surprise why, as one anonymous pastor put it, “Nobody feels good about Roy Moore.” After all, the former Chief Justice of the Alabama Supreme Court was twice removed from his post for flouting the law of the land, first over the display of a Ten Commandments monument in his court house and in 2016 for refusing to enforce the marriage equality ruling in Obergefell v. Hodges. A vocal opponent of removing segregationist language from the Alabama Constitution, Moore, like former Mississippi Gov. Haley Barbour, reached out to the white supremacist Council of Conservative Citizens. In 2005, Moore proclaimed “homosexual conduct should be illegal.” Last December, he professed his “personal belief” that Barack Obama wasn’t born in the United States. While brandishing his gun during a rally may have endeared him to some GOP primary voters, revelations that Moore did not pay taxes on $500,000 in back pay from his Foundation for Moral Law probably did not.
Nevertheless, a growing number of Senate Republicans, including the GOP’s No. 2 man John Cornyn of Texas, have endorsed Roy Moore. The Republican National Committee (RNC) and the National Republican Senatorial Committee (NRSC) have announced a fundraising pact with Moore and the Alabama GOP. In part, they doubtless did so because of—not despite—one of the very worst things Judge Moore ever uttered. After all, in November Moore denounced the Supreme Court’s ruling establishing marriage equality for LGBT Americans as the law of the land as “even worse” than the 1857 Dred Scott abomination upholding slavery and denying citizenship rights to blacks. As it turns out, Roy Moore has plenty of company among Republicans comparing same-sex marriage, Obamacare, habeas corpus rights for terror detainees, the national debt, abortion, and almost everything else they hate to slavery and therefore “even worse than Dred Scott.”
Of course, to the would-be Republican senator from Alabama, this is a self-evident truth:
In 1857, the United States Supreme Court did rule that black people were property. Of course, that contradicted the Constitution, and it took a civil war to overturn it. But this ruling in Obergefell is even worse in a sense because it forces not only people to recognize marriage other than the institution ordained of God and recognized by nearly every state in the union, it says that you now must do away with the definition of marriage and make it between two persons of the same gender or leading on, as one of the dissenting justices said, to polygamy, to multi-partner marriages.
We’ve got to go back and recognize that what they did in Obergefell was not only to create a right that does not exist under the Constitution, but then to mandate that that right compels Christians to give up their religious freedom and liberty. [Emphasis mine.]
Justice Anthony Kennedy’s majority opinion in Obergefell said no such thing. The First Amendment’s protection of religious freedom is a shield against the government, not a sword to beat back the speech and behavior of others that some may find offensive. For Kennedy, the 14th Amendment’s guarantee that “all persons born or naturalized in the United States” possess rights to “due process of law” and “the equal protection of the laws” in whatever state in which they may reside encompasses gay Americans, too:
It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
Ironically, the Civil War (13th, 14th, and 15th) Amendments to the Constitution were intended to forever extinguish the institution of slavery Scott v. Sanford had further entrenched. (The marriages of those held in bondage were accorded no legal recognition, either.) But to fully appreciate the obscenity of the now-routine GOP “worse than Dred Scott” talking point, it's important to look back at the 1857 Dred Scott case that helped make the Civil War inevitable.
In his odious opinion, Chief Justice Roger Taney didn't merely declare Dred Scott must be returned to bondage in Missouri despite having lived as a free man in Illinois for years. "A free negro of the African race, whose ancestors were brought to this country and sold as slaves," Taney argued, "is not a 'citizen' within the meaning of the Constitution of the United States." And that, the chief justice insisted, was as it should be:
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.
But for the conservative commentariat, the idea that Americans might be mandated to purchase health insurance along with a retirement pension (Social Security) and old age care (Medicare) was akin to making them slaves for whom "no day ever dawns" and whose lives are "all their night, forever." When the court upheld the Obamacare mandate in the 2012 NFIB v. Sebelius case, 2016 GOP presidential candidate and Kentucky Sen. Rand Paul warned:
The liberal blogosphere apparently thinks the constitutional debate is over. I wonder whether they would have had that opinion the day after the Dred Scott decision...
Think of how our country would look now had the Supreme Court not changed its view of what is constitutional. Think of 1857, when the court handed down the outrageous Dred Scott decision, which said African Americans were not citizens. Think of the "separate but equal" doctrine in Plessy v. Ferguson, which the court later repudiated in Brown v. Board of Education.
(The Court, of course, didn't change its view of what is constitutional. It took the Civil War and the 13th, 14th, and 15th Amendments to the Constitution to do that.)
And it wasn't just the likes of World Net Daily and Townhall, respectively, that proclaimed John Roberts' ruling in NFIB v. Sibelius "today's Dred Scott" and "the worst decision since Dred Scott." In 2013, Washington Post columnist George Will voiced the same sentiment:
"I hear Democrats say, 'The Affordable Care Act is the law,' as though we're supposed to genuflect at that sunburst of insight and move on. Well, the Fugitive Slave Act was the law, separate but equal was the law, lots of things are the law and then we change them."
Three years later, the usual suspects on the right have returned to compare the court's approval of Obamacare subsidies benefitting 6.4 million people in 36 states (most of them solidly red) in King v. Burwell to Dred Scott once again. As Oliver Willis documented:
Senior editor of the Capital Research Center Matthew Vadum slammed the decision and compared it to a legal confirmation of slavery, calling it "the Roberts court's second Dred Scott decision," "third world bullshit" and "Treason."
For his part, former Arkansas governor and two-time Republican presidential candidate Mike Huckabee reacted to the 6-3 majority decision in King v. Burwell as "an out-of-control act of judicial tyranny." But that rant paled in comparison to Huckabee's foaming at the mouth over the court's decision in the marriage equality cases.
In his USA Today op-ed about the looming decision in Obergefell v. Hodges, Huckabee rejected the very idea of judicial review settled since Marbury v. Madison in 1803. As for the Supreme Court overturning state bans on same-sex marriage, Huckabee essentially declared that gay Americans have no rights the straight man was bound to respect:
Can the Supreme Court "decide" this? They cannot. Under our Constitution, we have three, co-equal branches of government. The courts can interpret law but cannot create it. If they declare something "unconstitutional," it still requires congressional funding and executive branch enforcement. The Supreme Court is not the "Supreme Branch," and it is certainly not the Supreme Being. If they can unilaterally make law, and just do whatever they want, then we have judicial tyranny...
Let me be clear: If the Supreme Court abuses the limits of its power and attempts to create a right that doesn't exist in the Constitution, it will be the duty of the president to reject this threat to our religious liberty as "the law of the land." As president, I will never bow down to the false gods of judicial supremacy.
But Huckabee and his ilk weren't just refusing to "bow down to the false gods of judicial supremacy." He and the other signers of the "Marriage Pledge"—a Who's Who of the extremist social conservative movement—promised civil disobedience as well. As the self-proclaimed guardians of "family values” (including Jim Bob and Michelle Duggar) warn, they will never comply with a Dred Scott-like ruling for marriage equality:
We will view any decision by the Supreme Court or any court the same way history views the Dred Scott and Buck v. Bell decisions. Our highest respect for the rule of law requires that we not respect an unjust law that directly conflicts with higher law. A decision purporting to redefine marriage flies in the face of the Constitution and is contrary to the natural created order. As people of faith we pledge obedience to our Creator when the State directly conflicts with higher law. We respectfully warn the Supreme Court not to cross this line.
(It is more than a little ironic that the Marriage Pledge cites Dr. Martin Luther King Jr.'s Letter from Birmingham Jail to defend its interpretation of natural law and declares "the Supreme Court was wrong when it denied Dred Scott his rights and said, 'blacks are inferior human beings.'" After all, Huckabee's Southern Baptist Convention was founded in 1845 on that very claim.)
The Republicans' Iowa caucus kingmaker Rep. Steve King echoed Huckabee's parallel between the Supreme Court's denial of rights to African Americans and its potential extension of them to gay Americans.
"Well, that turned into a civil war—600,000 people killed to put an end to slavery—to sort that mess out."
King hasn't just declared "there's no way I can accept that kind of decision" from the Roberts Court in favor of same-sex couples. He has also filed a bill that would block the Supreme Court from hearing marriage cases altogether.
As it turns out, King proposed a similar remedy after the Supreme Court ruled that terror detainees held at Guantanamo Bay had habeas corpus rights to appeal their detentions. The justices' 5-4 ruling in the case of Boumediene v. Bush, King argued, was "extra-constitutional."
We might pass a resolution that simply says national security and the Constitution are more important than the built-in bias potentially of the Supreme Court itself, and that they didn't have jurisdiction, and that we take an oath to the Constitution as well, not an oath to their interpretation of it as they amend it on the fly.
If the Supreme Court had actually done as King charged, Boumediene would have been a very bad decision indeed. (All the court said in Justice Anthony Kennedy's opinion was that the detainee review process of the 2005 Detainee Treatment Act "falls short of being a constitutionally adequate substitute" because it failed to offer "the fundamental procedural protections of habeas corpus.") But John McCain went even further. It was, McCain announced, "one of the worst decisions in the history of this country." Or as the Republican echo chamber quickly pronounced, "worse than Dred Scott."
Leading the charge was torture enthusiast David Rivkin. The former Justice Department official under the first President Bush and full-time apologist for the second blasted the Supreme Court's 5-4 ruling in favor of Guantanamo Bay detainees. The result, he proclaimed in June 2008, was the equivalent of declaring human beings property and codifying racial segregation:
"But to be honest, and not to be too dramatic, it's one of the worst decisions by the Supreme Court I've ever read, on par with Dred Scott decisions and Plessy v. Ferguson.
The reason for it is not because of its practical implications; they're quite modest. But the sheer ambition, the sheer judicial arrogance that you see here."
That same week, former House Speaker Newt Gingrich followed suit. Appearing on Face the Nation, the Georgian showed that the good times there are not forgotten. Boumediene, he claimed, "could cost us a city." And, he insisted, the court's 2008 Gitmo decision made the 1857 Dred Scott calamity pale in significance:
Mr. GINGRICH: On the other hand, I will say, the recent Supreme Court decision to turn over to a local district judge decisions of national security and life and death that should be made by the president and the Congress is the most extraordinarily arrogant and destructive decision the Supreme Court has made in its history.
REID: In its history.
Mr. GINGRICH: In its history. Worse than Dred Scott, worse than - because - for this following reason: The court has now knowingly stepped in - and this morning's newspapers say smugglers had actually gotten the design of a nuclear weapon, that we now have the evidence that people out there had a nuclear weapon design. And this court is saying that any random district judge, based on whatever their personal caprice is, whatever their personal ideological bias, can intervene with a terrorist in such a way - and this is something that the Italians will tell you about fighting the mafia.
Of course, Gingrich and Rivkin were not alone among the voices of the right in equating Boumediene with Dred Scott. The Wall Street Journal's Law Blog echoed the editorial page's conclusion that "we can say with confident horror that Americans are likely to die as a result" and asked readers to weigh in on "what you think are the worst Supreme Court decisions in the history of this country."
Now, it must be said that Republicans and their conservative amen corner in the media are not the only ones to traffic in the casual use of the “worse than Dred Scott” sound bite. Four years ago, Massachusetts Democrat Ed Markey lamented the Supreme Court’s 2010 campaign finance ruling, “The Dred Scott decision had to be repealed. We have to repeal Citizens United.” But comparing corporate money and power to the South’s antebellum slavocracy is not a misstep Markey or others repeated—or expanded upon. Meanwhile, the “worse than Dred Scott” talking point remains a go-to sound bite in the lexicon of Republicans from Paul Ryan to Roy Moore. And when it comes to incendiary political rhetoric, it’s hard to imagine much worse.