Contemporary constitutionalists often give antebellum Supreme Court justices passes on slavery. John Marshall is the great expositor of judicial supremacy and national power, whose opinions scorned the states’-rights doctrines favored by Virginia slaveholders. Joseph Story is the great commercial and constitutional law treatise writer, who, Prigg v. Pennsylvania (1842) aside, articulated the typical antislavery views of Northern Whigs. Roger Taney is another great Supreme Court justice, once one excuses his aberrant decision in Dred Scott v. Sandford (1856).

Supreme Injustice: Slavery in the Nation's Highest Court removes scholarly blinders. John Marshall is a committed slaveholder and white supremacist who in numerous private lawsuits twisted law and precedent to keep human beings in bondage. Story while on the Supreme Court was converted from a vigorous opponent of slavery and the slave trade to a passive participant in the Supreme Court's failure to curb the international and domestic slave trade, and an active participant in the court's failure to provide any protection for fugitive slaves. Taney's opinion in Dred Scott was the culmination of a career in the national executive and judiciary pushing American constitutionalism in ever more proslavery and racist directions. The evidence that Paul Finkelman amasses to support these claims is impressive and, except at the margins, irrefutable.

Finkelman's discussion of Marshall is particularly important and original. Unlike Story, whose opinion in Prigg has been a source of scholarly controversy for 175 years, and Taney, whose Dred Scott opinion is recognized as the epitome of proslavery constitutionalism, Marshall has been uniformly treated as above the slavery fray. Conventional wisdom holds that Marshall was not heavily involved in slavery personally and did not take much interest in slavery professionally. Supreme Injustice demonstrates that both claims are wrong. Finkelman unearths numerous records demonstrating that “in his personal life Marshall bought and sold slaves, gave them to relatives, and actively participated in the business of human bondage” (36). Marshall was a large slaveholder and active slave trader, holding and trading more slaves than any other member of the antebellum Supreme Court. On a conservative estimate, Marshall, while on the Supreme Court, held over 100 slaves. He was constantly buying, selling, and giving away human chattel. Marshall's jurisprudence was also proslavery. Supreme Injustice details the numerous private lawsuits in which Marshall repeatedly ruled against freedom claims. Finkelman suggests that Marshall's legal creativity vanished when slaves demanded liberty, but the better position may be that Marshall was as creative in defending the property rights of slaveholders as he was in defending the property interests of the land speculators in Fletcher v. Peck (1810). The main difference between those lines of cases is that the references to natural law in early Marshall Court contract clause cases vanished when Marshall was interpreting the law of slavery. In one case, Marshall refused to admit uncontested evidence that an alleged slave was born of a free person of color. In another case, he sparked Gabriel Duval's only dissenting opinion when on the Supreme Court by refusing to admit hearsay evidence that an alleged slave was a free person.

Finkelman is a zealous, sometimes overzealous, prosecutor of justices guilty of great wrongs. His detailed analysis of numerous well-known and less-well-known slavery cases documents the numerous places where Marshall, Story, and Taney either mis-stated the law or, more often, reached proslavery conclusions when a more neutral or antislavery conclusion was as legally plausible. Some scholars will question which proslavery claims fall into the clear error category and which fall into the plausible alternative category, but the conclusion that the antebellum court was hardly compelled to consistently rule for slavery is indisputable. Finkelman at times overreaches a bit as, for example, when he berates Taney for his decision in Ex parte Merryman (1861) granting a writ of habeas corpus to a Marylander accused of plotting against the Union. Taney may have been more interested in secession than law, but his claim that presidential suspensions of habeas corpus were unconstitutional was accepted by many antislavery Republicans and remains a source of legitimate controversy at present. Finkelman's claim that “Article V ensured that the slaveholding states would have perpetual veto power over any constitutional changes,” although accurate, fails to acknowledge that this provision gave the (becoming) free states the same power. Whether “a different jurisprudence might have altered the trajectory of American history by providing jurisprudential balance in the political and legal debates over slavery” (223) remains unclear. Nevertheless, the more modest claim that Finkelman often makes, that Marshall, Story, and Taney consistently made proslavery decisions when the law did not compel that result and that these decisions resulted in increased human suffering, is both correct and a more than sufficient indictment.

Extremism in the cause of liberty may be a vice, but a somewhat overzealous condemnation of proslavery justices is surely to be preferred to previous works that either ignored or excused how allegedly great justices accepted and promoted human bondage. Finkelman has drawn up a detailed and compelling indictment of the three “greatest” Supreme Court justices of antebellum America that demonstrates their complicity in the South's peculiar institution. That charges 75 and 143 may be somewhat exaggerated should not distract the reader from the accuracy and importance of the overall bill. To quote James Agee, “Let Us Now Praise Famous Men.”