taney was more of an ideological partisan than he was a judge. Think Ruth Bader Ginsburg. His foremost objective was opposing Lincoln and the Republicans. He merely used the cover of law to carry out his agenda.
Does support for the Constitution make one an ideological partisan? Not necessarily. I would have opposed Lincoln for violating the Constitution, but I would have done it because I'm more of an originalist than a living Constitution guy. Perhaps Taney is an originalist also in that he quotes Marshall and Story who are closer to the period when the Constitution was written (and Marshall was a member of the Virginia ratification convention). Perhaps anyone who takes a stand one way or the other can be labeled an ideological partisan. Are you an ideological partisan, rockrr?
I'm more like Antonin Scalia with his originalist arguments than like Ruth Bader Ginsburg who is a partisan. That's the ticket. Me and Scalia. Peas in a pod. Cough, cough. I'm not qualified to shine his shoes.
Actually, I don't like Taney's historical arguments supporting his position in Dred Scott, but parts of Taney's Ex parte Merryman give me goose bumps -- it is a brilliant piece of writing. From Ex parte Merryman:
Yet, under these circumstances, a military officer, stationed in Pennsylvania, without giving any information to the district attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the district of Maryland; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if indeed he required any) is sufficient to support the accusation and justify the commitment; and commits the party, without a hearing, even before himself, to close custody, in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.
The constitution provides, as I have before said, that "no person shall be deprived of life, liberty or property, without due process of law." It declares that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." It provides that the party accused shall be entitled to a speedy trial in a court of justice.
These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.[3]
In such a case, my duty was too plain to be mistaken. I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.
Hmmm. I hadn’t noticed it before, but the last paragraph indicates why he filed HIS opinion (which was written as Chief Justice of the Supreme Court) at the Circuit Court. He does provide an explanation, such as it is, for filing his opinion there. His explanation does not say his opinion is a Circuit Court opinion, just that it was filed there in Baltimore to help General Cadwalader in Baltimore understand the ramifications of what he (Cadwalader) had done.