The Taney Court
and Judicial Power
Years of political pressure for a judicial settlement of the slavery controversy undoubtedly had their effect on the collective judgment of the Supreme Court in its handling of the Dred Scott case. But the boldness with which it acted also reflected public understanding of the nature of judicial power and the Court's own sense of strategic responsibility in the American constitutional system.
There is no simple historical explanation for the extraordinary power of the judiciary in the government of the United States. One can find its sources, for instance, in the system of English law transplanted to the colonies, in the constitutional nature of the British colonial empire as perceived by eighteenth-century Americans, in certain aspects of pre-Revolutionary argumentation over colonial rights, and in the formal structure of the federal republic created between 1776 and 1789.
The place to begin, perhaps, is with the English common-law tradition, which crossed the Atlantic with every shipload of English colonists, even though the body of the common law, in all its patchwork complexity and technical detail, was never more than fractionally "received" by the American commonwealths. The law of the common-law tradition was essentially judge-made law, but not self-admittedly so. In theory, the judge was merely the expositor of an existing body of law consisting partly of