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 Abstract

Excerpted From: Laura Kyte, Admitting a Wrong: Apology for the Historical Injustice of the Dred Scott Case, 47 Brigham Young University Law Review 317 (2021) (191 Footnotes) (Full Document)

On August 10, 1988, President Ronald Reagan stood in the Old Executive Office Building in front of members of Congress and America to offer an apology. Reagan was signing the Civil Liberties Act of 1988, which acknowledged the harm that was done to Japanese Americans through their internment during World War II and granted reparations for the injustice inflicted. Perhaps more importantly, it also issued an official apology from the United States government. Reagan proclaimed that the most important part of the bill was not the $20,000 that would be available to Japanese Americans who had been detained, but rather “honor.” “For here we admit a wrong; here we reaffirm our commitment as a nation to equal justice under the law.” Reagan realized the harm inflicted on Japanese Americans was more than just economic.

Reagan did not define what he meant by “honor,” and he was unclear as to whom the honor was directed, but it appears that his underlying belief was that an official government apology had the power to input something necessary to restoration that could not come in the form of economic payment. Reagan did not articulate whether the apology would bestow honor upon Japanese Americans through the recognition that the United States had violated their human dignity by implementing racist ideas that negatively impacted an entire race of people. Nor did he articulate whether the apology would restore honor upon the United States through the recognition that the United States committed a severe wrong, or whether it was now taking responsibility for the harm it caused and was attempting to correct it. Perhaps the apology was working towards both of those ends.

Slavery and its legacy--the racist ideas and racist policies that were used to uphold the systematic institution of bondage and oppression--have inflicted greater harm upon African Americans in the United States than World War II internment did upon Japanese Americans. The harm caused by slavery has a much longer history, deeply interwoven in the founding of the United States, and even predating it, creating the defining context of race by which other racial oppressions are then overlaid. This legacy has certainly inflicted a variety of economic harms that persist to the present day. But the legacy of slavery has also inflicted non-economic harms in the form of racist ideas and perspectives that continue to permeate American memory. The Supreme Court has been implicit in creating and perpetuating those racist ideas that led to a false historical memory. The Court has written racist opinions that have colored the historical narrative of African Americans in a way that encouraged racist beliefs to continue and fed the appetite of white supremacy. Dred Scott v. Sandford is the most obvious and far-reaching example.

The Supreme Court should have a mechanism through which it can issue an official apology for damaging opinions and the Court should start with the Dred Scott case. Most erroneous opinions have the opportunity to be corrected through a subsequent opinion, so an official apology is not necessary for those cases. But the opportunity to admit a wrong and make corrections rarely comes when an opinion is overruled through a constitutional amendment. An amendment acts as a new starting point for the Court, minimizing the previous erroneous opinion and whatever effect on individuals that it might have had. An apology would provide one avenue towards a greater reckoning of the Court's effect on the role of African Americans in U.S. society. As Alfred Brophy suggests, an apology would “honor the memory of those who were enslaved [,]” show an “understand[ing] that the sins of our country's past burden us still today[,]” and “would help correct the ignorance of many Americans about our past.”

This Note addresses some of the framework under which an apology would fit and why the Court should start with the Dred Scott case. Part I addresses why the Court's communication about Dred Scott thus far has not appropriately addressed the errors the opinion contains. Part II explains how an apology is an appropriate remedy under a corrective justice framework--this includes analyzing Dred Scott through the lens of historical injustice and how this is understood within a broader historical context. Part III places an apology for Dred Scott within an anti-racist theoretical framework. And Part IV explains how the Court can set limits on when it would issue an apology.

[. . .]

The Supreme Court cannot continue to pretend that it has no liability for modern-day racial inequities. Principles of morality and justice demand that the Court directly confront the racist policies it supported and perpetuated that led to continued inequity for black Americans. The Court denied black Americans of not only their citizenship but also their humanity by erasing the true history of black struggle and success. The theory of colorblindness has only served as an obstacle toward full and honest justice. The only way to overcome the ongoing effect of racism is for institutions like the Court, which perpetuated white supremacist ideology, to honestly grapple with the role they have played. This reckoning needs to come through the creation of anti-racist policies.

Like President Reagan's apology to Japanese Americans, the Court's apology could restore honor to the institution of the Court and restore honor to the role of black Americans within American history. While the debate over economic reparations for African Americans rages on, the Court has an opportunity to institute an anti-racist policy of its own to atone for the noneconomic damages it inflicted through the Dred Scott opinion. Like Reagan's apology, by admitting a wrong, the Court can reaffirm its commitment to equal justice under the law.

Fellow, Utah Attorney General's Office, Litigation Division (the content of this Note does not necessarily reflect the views of the Attorney General or of the Office of the Attorney General); J. Reuben Clark Law School, J.D. 2021; Utah Valley University, B.A. History 2018.

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