Taney may well deserve to be “hooted down the page of history,” but it is unfair to take Marshall and Story with him.
The Supreme Court is still living off the moral capital acquired in Brown. This unpublished concurrence wouldn't have added much.
Paul D. Moreno holds the William and Berniece Grewcock Chair in Constitutional History at Hillsdale College. He is the author of Black Americans and Organized Labor: A New History (2006) and The American State from the Civil War to the New Deal: The Twilight of Constitutionalism and the Triumph of Progressivism (2013).