Luther v. Borden: A Taney Court Mystery Solved
66 Pages Posted: 27 Aug 2016 Last revised: 4 Sep 2019
Date Written: August 26, 2016
Abstract
It has not been generally remarked that Chief Justice Taney wrote surprisingly few of the Taney Court's major opinions. The question is raised, 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 major opinions he did write? To begin to unravel this little mystery of history, a glimpse into the nature and character of Chief Justice Taney is offered, with an amusing parallel drawn between the respective nominations to the Supreme Court of Roger Taney and Robert Bork. Luther is reconsidered in light of hitherto disregarded “Transcripts of Record.” Luther is examined critically under these revised understandings, and with unembarrassed presentism rather than historicism in light of Powell v. McCormack and, of course, Baker v. Carr. It emerges, to begin with, that much of Chief Justice Taney’s reasoning in Luther does not withstand scrutiny. If Taney is to be credited with the understanding of law reasonably attributable to a former Attorney General of the United States, his reasoning in Luther is both evasive and dishonest. Even more seriously, Luther v. Borden can be plausibly read As having a darker side than is conventionally understood, placing it well within the ambitions of the author of Dred Scott.
Keywords: Luther v. Borden, Guaranty Clause, Political Questions, Powell v. McCormack, Baker v. Carr, Redistricting, Malapportionment, Elections, Gerrymandering, Reynolds v. Sims, Dred Scott, Taney, Dorr Rebellion, Slave Power, Watergate, Bork, Cox, The Slave Power, Gerrymander, Entrenchment
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