Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful to discriminate against an individual in employment “because of such individual’s race, color, religion, sex, or national origin.” The Supreme Court has since clarified that discrimination includes both harassment and stereotyping based on a protected class. Legal scholars have increasingly recognized and explored how intersectional discrimination, in which people are discriminated against on the basis of more than one trait or characteristic, relates to Title VII and other anti-discrimination laws. A key insight of intersectional theory is that this kind of discrimination is not merely additive (discrimination against Black women equals race discrimination plus sex discrimination), but that “categories may intersect to produce unique forms of disadvantage.” This Article argues that claimants can use the existing Supreme Court precedent of Oncale v. Sundowner Offshore Services, Inc. to contend that intersectional discrimination is a “reasonably comparable evil” to the single-basis discrimination contemplated by Congress in 1964, and therefore falls under the broad and flexible interpretation the Court has applied to Title VII’s “because of” language.

Chief Justice Taney’s 1857 opinion in Dred Scott v. Sandford is justly infamous for its holdings that African Americans could never be citizens, that Congress was powerless to prohibit slavery in the territories, and for its proclamation that persons of African ancestry “had no rights which the white man was bound to respect.” For all of the interest in and attention to Dred Scott, however, no scholar has previously analyzed United States v. Dow, an 1840 decision of Chief Justice Taney in a circuit court trial which is apparently the first federal decision to articulate a broad theoretical basis for white supremacy. Dow identified whites as the “master” race, and the opinion explained that only those of European origin were either welcomed or allowed to be members of the political community in the American colonies. Non-whites such as members of Dow’s race, Taney explained, could be reduced to slavery, and therefore their rights continued to be subject to absolute legislative discretion. Dow, however, was not a person of African descent—he was Malay, from the Philippines. Chief Justice Taney’s employment in Dow of legal reasoning which he would later apply in Dred Scott suggests that Dred Scott should be regarded as pertinent to all people of color, not only African Americans.

In Dred Scott v. Sandford, Chief Justice Roger B. Taney justified denying free Blacks the right to sue in diversity in federal courts on the ground that no Black, whether slave or free, could ever be a citizen of the United States. He asserted that at the Founding, free Blacks were not citizens of the nation and that they could never be incorporated into the American polity. He infamously asserted that at the Founding, Blacks were “so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.” Taney was fundamentally wrong in these claims, and he should have known as much. In the last three decades of the eighteenth century, Americans actually witnessed a dramatic revolution in race relations, leading to the first civil rights laws in U.S. history. While some states retreated from this period of expanded civil rights in the nineteenth century, others did not.

This Essay primarily addresses two points, raised by Professor Gabriel J. Chin in his Article, Dred Scott and Asian Americans: first, Chief Justice Roger Taney as a proponent and defender of interconnected, even intersectional, racial ideologies; and second, Taney’s representativeness as an historian and as a legal realist describing law and politics as they were. In Professor Chin’s first claim, about the interconnected nature of Taney’s racial thought, we find a fascinating insight into the construction of a predominantly Democratic vision of the white race that helped shape not only Taney’s jurisprudence, but also his party’s efforts to develop a constructed identity politics. Professor Chin’s focus on the Naturalization Act of 1790 is a powerful rejoinder to many early U.S. historical narratives that examine race making solely with regard to people already in what became the United States. Taney’s arguments about a white Christian master race in turn help center nonwhiteness, not just Blackness or indigeneity, in early U.S. history with profound consequences. These are major claims and major contributions.

This commentary considers Professor Jack Chin’s analysis in his Article, Dred Scott and Asian Americans, of the white supremacist underpinnings and modern legacy of U.S. Supreme Court Chief Justice Roger Taney’s decisions in United States v. Dow, a little-known decision denying full citizenship rights to Asian Americans, and Dred Scott v. Sandford, an iconic Supreme Court decision that rejected full citizenship to a freed Black man and precipitated the Civil War. It further explores how Chief Justice Taney’s analysis of race and racial subordination in the nineteenth century exemplifies the fundamental tenet of modern Critical Race Theory that the law operates to enforce and maintain white supremacy.