Luther v. Borden: A Taney Court Mystery Solved

It has not been generally remarked that Chief Justice Taney wrote surprisingly few of the Taney Court’s major opinions—those cases that tend to be anthologized and remembered by generalists. Those major cases which Taney did write are consistently about slavery (or states’ rights or state powers, which in Taney’s mind may have amounted to the same thing). There is a notable exception: Luther v. Borden—a case about the Guarantee Clause. This raises a question. Setting aside his opinions on slavery or states’ rights, what could have moved the author of Dred Scott, by consensus the worst Supreme Court opinion in history, to choose Luther v. Borden as one of the few remembered major opinions he did write? To begin to unravel this little mystery of history, a glimpse into the character and judgment of Roger Brooke Taney is offered, with an amusing parallel drawn between the respective nominations to the Supreme Court of Taney and Robert Bork. Luther is reconsidered in light of the Transcripts of Record, and with an unembarrassed presentism rather than historicism. In view of Chief Justice Warren’s thinking in Powell v. McCormack, much of Chief Justice Taney’s reasoning in Luther is shown not only to be evasive, illogical and unconvincing, but also intellectually dishonest, if he is to be credited with the understandings of law and its processes reasonably attributable to a former Attorney General of the United States. Even more disturbingly, Luther v. Borden can plausibly be read as having a darker side than is conventionally understood, with an impact of surprising magnitude and hurtfulness, placing it well within the ambitions of the author of Dred Scott