Rachel A. Shelden, Penn State, has published “I Shall Not Forget or Entirely Forsake Politics on the Bench”: Abraham Lincoln, Dred Scott, and the Political Culture of the Judiciary in the 1850s in the Maryland Law Review. From the introduction:
--Dan ErnstIn his first debate with Stephen Douglas at Ottawa on August 21, 1858, Abraham Lincoln repeated a theory that he had been touting for nearly two months, since his famed “House Divided” speech in June. According to the Illinois Republican, there had been a conspiracy among four “workmen” of the Democratic Party to nationalize slavery in the United States, which had culminated in Dred Scott v. Sanford. First in the conspiracy was Senator Douglas, whose Kansas-Nebraska Act in 1854 upended a thirty-year ban on slavery in the U.S. territories above the 36º 30’ latitude in favor of “popular sovereignty”—letting the people of a territory decide. Next came former-president Franklin Pierce, who encouraged acceptance of the Kansas-Nebraska legislation and any potential consequences, including the violence that exploded in Kansas between pro- and anti-slavery settlers. Third in the plot: newly-elected President James Buchanan, who pressed his inaugural audience in March 1857 to accept any decision on slavery in the territories that the Supreme Court might make. And finally, with all of these pieces set in place, Chief Justice Taney delivered his opinion in Dred Scott just two days after Buchanan’s inaugural address, declaring that Congress had no power to legislate on slavery in the territories. Clearly, Lincoln argued, all these men knew in advance what the result would be in Dred Scott; after all, when asked by a Senate colleague if it was constitutional for the people of a territory to ban slavery from their borders, Douglas answered that “it was a judicial question.” Thus, Lincoln concluded, “we find it impossible to not believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first lick was struck.”
Raymond Massie in "Lincoln in Illinois" (NYPL)
Read in a modern context, Lincoln’s charge appears quite serious—at least as it relates to the Chief Justice. . . . . Accusations that a Justice discussed a pending case make front page news today. Proof of such conduct would likely be a full-blown scandal. Yet there was little public reaction in 1858 to Lincoln’s charge of a conspiracy among all three branches of government. Illinois papers printed the “House Divided” speech, but without much commentary, and over the course of the remaining debates, the two Senate candidates referred to it infrequently. . . .
Buried in the broader story of Lincoln’s political rise, this little episode reveals a great deal about the relationship between judges and politics in the mid-nineteenth century. The sheer ordinariness of Lincoln’s accusation—and the lack of public outrage in response—illustrates how boundaries of judicial conduct were understood differently at the time. Rather than relegated to their own separate judicial sphere, judges were key players in nineteenth-century politics; they served as partisan presidential electors, advised political candidates (or were candidates themselves), and collaborated on legislation. Judges’ courtrooms also served as key political spaces: During judicial terms, grand juries pressed political leaders for their views on important issues, lawyers with business before the courts delivered campaign speeches, and partisans protested opponents at the courthouse. This integrated relationship between courts and politics meant that Americans typically measured judges’ conduct against the broader political culture—the unspoken and underlying (though evolving) beliefs, attitudes, norms, and available mechanisms that guided politics in that era.
