[William Terrell]

Actually, the Scott case was not judicial legislation. It was decided, unpopularily, on the constitutions, states and federal, and customs and law prevailing at the time. To have decided otherwise in that era would have been judicial legislation.

It's always been entertaining to me conservatives so negatively adamant about a case that was decided as conservatives want cases to be decided.

[buridan]

"Actually, the Scott case was . . . decided as conservatives want cases to be decided."

Not so. Taney's opinion was bad originalism. It ignored the clear record that some blacks were citizens at the of the founding. It gave a preposterous reading of the "territories clause" and of Congress' power to legislate for territories acquired after the Constitution went into effect. It went out of its way to declare the Missouri Compromise unconstitutional. It may even have initiated the "substantive due process" idea that has born fruit in Roe v. Wade. Lincoln's "Cooper Union" address utterly destroys part of the reasoning.