The Last Angry Man: Benjamin Robbins Curtis and the Dred Scott Case

Of all the attorneys and judges who participated in the long and tortured litigation over the status of Dred Scott and his family, the performance of Justice Benjamin Robbins Curtis is the most lavishly praised by most modern commentators. In part, this high esteem reflects a strong commitment to the substantive view that Congress had the power to prohibit slavery in the territories. But, unlike his fellow dissenter John McLean, Curtis is also widely seen as taking a dispassionate view of the issues presented in Dred Scott v. Sandford and as skillfully bringing to bear distinctively legal principles to reach his conclusions in the case. Thus, for example, Carl B. Swisher describes Curtis’s opinion in Dred Scott as “outstanding” and asserts that “the opinion was written out of the warp and woof of the law . . . .”1 In many respects, this reputation is well-deserved. Curtis’s argument on the issue of slavery in the territories2 is entirely convincing, and his treatment of the substance of the citizenship issue3 is nothing short of a tour de force. By contrast, a quite different picture emerges when one considers his approach to some of the other issues presented by Dred Scott. Here, the opinion reveals a Curtis who is quite angry with the Southern Justices for their decision to reach the issue of the constitutionality of the Missouri Compromise and whose analysis appears to have been distorted by this anger.