(Cross posted from The Faculty Lounge)
In a recent interview with Jeffrey Rosen of The New Republic, Justice Ruth Bader Ginsburg was asked “when you think about your constitutional legacy, who’s your model?” In response, she named John Marshall, the first John Marshall Harlan, Louis Brandeis, Oliver Wendell Holmes, and Thurgood Marshall. She also added “another justice, one who didn’t serve very long, six years, I think, was Justice Curtis, who wrote a fine dissent in the Dred Scott case.” Justice Benjamin Robbins Curtis did indeed write a blistering dissent in Dred Scott – and he resigned in disgust shortly afterward – but his overall record on slavery was nothing to be proud of.
In November 1850, the Curtii were sponsors of a mass meeting in support of the Fugitive Slave Act, at which Benjamin (the future Supreme Court justice) declared “Massachusetts has nothing to do” with the rights of fugitive slaves. “They have no right to be here,” he told the cheering crowd, “this is not the soil on which to vindicate [their rights]. This is our soil, sacred to our peace, on which we intend to perform our promises (emphases in original report).” By “promises,” he meant the capture and rendition of runaway slaves. Benjamin Curtis also provided the United States marshal for Massachusetts with a legal opinion endorsing the constitutionality of the Fugitive Slave Act.
George Ticknor Curtis served as a fugitive slave commissioner, signing warrants for the arrest of such now-famous fugitives as William and Ellen Craft and Shadrach Minkins. Another Curtis relative – Edward Greeley Loring – presided over the trial and rendition of Anthony Burns, who was sent back to Virginia in chains, as crowds of Boston abolitionists looked on in horror.
Following his appointment to the Supreme Court (but before he was sworn in), Benjamin Curtis presided as a circuit judge over the trial of the African-American lawyer Robert Morris, who was charged with assisting a fugitive’s escape. Curtis overruled the defense objections to the evidence, holding that it had been sufficiently proven that the alleged fugitive was in fact a slave. It was sufficient “for the master to testify that the person mentioned in the indictment was his slave.” “By the common law,” Curtis concluded, “possession is evidence of property,” with no exceptions for human beings. Fortunately, the jurors showed more conscience than the court, and (in what was widely perceived as an act of nullification) they acquitted the defendant.
Do those pro-slavery activities make Justice Curtis an inappropriate model for Justice Ginsburg? Or does it show instead that he was able to change his mind and adopt new principles once seated on the Supreme Court? You can read more about the Curtii, and more importantly, the anti-slavery bar with whom they jousted, in Fugitive Justice.