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Echoes of Roger B. Taney
Brett Kavanaugh and the Supreme Court’s Retreat from Justice
Chief Justice Roger B. Taney is remembered for writing what many consider the worst decision in U.S. legal history — the 1857 Dred Scott v. Sandford ruling. In it, Taney declared that Black people, whether enslaved or free, were not and could not be citizens of the United States, and that “no slave or descendant of a slave had any rights which the white man was bound to respect.” This doctrine remained the law until the 13th and 14th Amendments overturned it after the Civil War.
The legal precedent — that an entire group could be denied rights based solely on race — was erased on paper. But the sentiment, as a recent opinion by Justice Brett Kavanaugh shows, has not entirely disappeared.
Kavanaugh’s Concurrence
In a case overturning a federal court’s block on ICE’s roving raids of suspected undocumented immigrants in California, Kavanaugh wrote a concurring opinion that allowed race to be considered in forming “reasonable suspicion” for an immigration stop:
“To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a ‘relevant factor’ when considered along with other salient factors.”
