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Don't Cite Dred Scott

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By Casey C. Sullivan, Esq. on October 24, 2016 11:01 AM

Looking for that perfect cite? The most on-point case law? The pin cite that will really drive your point home? Here's a hint: don't make it a cite to one of the worst Supreme Court decisions ever. Don't cite Dred Scott.

Surprisingly, that's a lesson lawyers for the state of Kansas didn't learn until recently. Last week, Kansas Solicitor General Stephen McAllister filed a brief in defense of the state's restrictive abortion laws, a brief that cited Dred Scott. Approvingly.

Bleeding Kansas

Dred Scott, in case you've forgotten, is the landmark 1857 Supreme Court decision holding that the descendants of slaves could not become U.S. citizens and declaring African Americans "beings of an inferior order, and altogether unfit to associate with the white race" who have "no rights which the white man was bound to respect."

The decision, you know, is not exactly a shining moment in the Supreme Court's history. It's one of the few Supreme Court precedents that took a civil war to overturn.

So, how did Kansas end up citing Dred Scott? The state is currently defending the constitutionality of SB 95, a law that would ban most abortions, before the Supreme Court of Kansas. The ACLU and Constitutional Accountability Center submitted an amicus brief arguing that the Kansas Constitution, like the federal Constitution, guarantees the rights of "life, liberty, and the pursuit of happiness," as enumerated in the Declaration of Independence, and "should be interpreted to provide the protection for substantive fundamental rights that is at least as strong as that provided by the Fourteenth Amendment."

Enter Dred Scott. In its response, the Solicitor General's brief states that "Courts across the country have recognized that "[t]he Declaration of Independence is a statement of ideals, not of law." What follows is a massive string cite that takes up most of the page and concludes with:

See also Dred Scott v. Sandford, 60 U.S. 393, 407 (1856) (describing the Declaration's description of unalienable rights as merely "general words used in that memorable instrument" and holding that the Declaration did not have a legally binding effect).

Whoops!

The bizarre citation didn't go unnoticed, however, or uncorrected. The citation was reported in the Wichita Eagle, the Huffington Post, and then, well, just about everywhere.

Once word about the Dred Scott cite got out, the state withdrew the brief.

"Neither the state nor its attorneys believe or were arguing that Dred Scott was correctly decided, and as soon as I became aware of it today, I ordered the state's brief withdrawn," Kansas Attorney General Derek Schmidt announced last week. "Nonetheless, the reference to that case was obviously inappropriate," he continued. It was "not necessary for the state's legal argument, and should not have been made," Schmidt said.

So there you have it. Unless you absolutely have to, don't cite Dred Scott. Avoid Buck v. Bell and Plessy v. Ferguson, too.

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