Tuesday, June 26, 2018

Supreme Injustice Didn't End In The 19th Century

It is obvious that the Supreme Court is directly influenced by the worst features of American history, giving some people of extremely dubious motives a continuing power to govern our life.  Its reliance on the thinking of Supreme Court rulings of the past, many of them made by slave-owners, for slave-owners and against the Black People they held in slavery resonates with that and myriad other corrupt rulings by judges whose thinking is not merely colored by but determined by their economic and class interests.   While looking for excuses to do awful things today, they will look at the thinking of Justices who came up with excuses to do awful things in the past.

In this stunning lecture that the fine historian Paul Finkelman gave at the National Archive, talking about his book,  Supreme Injustice he mainly talks about two of the early Justices, along with the putrid Roger Taney, the legendary John Marshall, and Joseph Story.  He describes how Joseph Story went from being a passionate early opponent of slavery to being what the great abolitionist William Lloyd Garrison called the "chief slave-catcher" because of his decisions favoring not only capturing escaped slaves and bringing them back into slavery but making it legal for freed Black People to be abducted in the North and sold into slavery without any recourse.  

Note that the introductions go on for way longer than they should, you should jump ahead to where Finkelman starts at about 8:25.  

He also details how the most respected of all the Justices,  John Marshall owned at least about 250 slaves (most of his biographers admit only about a dozen) as he over and over again wrote decisions favoring slave owners when Slaves held illegally by them were able to get a case heard in court - generally winning their case only to have Marshall overturn the cases.   Paul Finkelman goes into quite a bit of detail about the one slave that John Marshall offered freedom to in a codicil to his will, in which he offered his aged, devoted personal slave Robin freedom on Marshall's death, but required him to go into exile.  He would leave him $100 to go to Libera, when he had never been in Africa in his life or $50 to go somewhere else.  Finkelman points out that in order to stay in Richmond Virginia where Robin had lived his entire life, he would have had to get permission of the court, something which the SUPREME COURT JUSTICE FAILED TO DO FOR HIM WHEN HE WOULD HAVE KNOWN PERFECTLY WELL HE WOULD HAVE HAD TO DO TO LIVE THERE IN FREEDOM, but which the master lawyer in our history failed to make that effort in this case. 

His account of Marshall overturning the judgement in favor of a woman, Mima Queen, returning her to slavery for the rest of her and her children's lives is especially troubling because he noted earlier that in the 10 most often cited cases in subsequent court decisions,  Marshall wrote five of them.  At the end of his talk, Finkelman said:

I think Marshall is seeing Mima Queen in the way he saw the slave whose burial he had to pay for, it's a lost investment.   And so I think one of the stories of this is that the economic interests of the Justice and his investments and how he makes his money indirectly effects his jurisprudence.  Marshall obviously has no immediate economic claim to this case,  Marshall's not making money on this case, this is not corrupt, I'm not suggesting corruption here.  I'm suggesting something perhaps worse than corruption, which is that the way you view the world is determined by these investments in human flesh, that John Marshall has made throughout his life

I think that's exactly true for other Justices and for other issues, I think it's obvious that the five Republicans sitting on the court allow their partisan identification to decide a lot of their cases, the reason that they gave Trump the power to enforce his anti-Muslim bigotry on the pretext of national security, John Roberts blatantly denying that Trump's own words prove that is exactly what he and the other four fascists on the court have done.  And with this ruling there can't be any other thing to call them because they are giving a despot the ability to turn his whims into law, destroying the lives of countless people on the basis of their ethnic-religious identity.  Exactly what John Marshall, Joseph Storey and the infamous Roger Taney, the writer of the Dred Scott decision did.  

The Supreme Court has almost always been a dangerously anti-democratic institution.  As Charles Pierce said about this ruling and the recent rulings favoring Republican state governments to suppress the votes of Black People and others, they have brought us back to the Jim-Crow, Gilded-Age of law, Jim Crow being a de facto form of slavery, making Black People lesser people, joined by Latinos, Muslims, and who knows who else with join that list of lesser possessors of rights. 

His point that previous historians and biographers simply didn't deal with the enormous role that slave owning had in John Marshalls life AND IN HIS JUDICIAL LIFE, which is typical of people who write about Supreme Court justices.  The typical reportage on the court treats them as they don't treat bishops and cardinals and even Popes these days.   

There's too much deference and respect for the Court, it doesn't deserve that royal treatment, with the partisan Republican Rehnquist court and now the overt Republican-fascism of the Roberts court it is seriously important for us to attack them because, since they are the foremost force in the corruption of our elections and in the view of reality that Americans get through the media, they are and have been the biggest danger to egalitarian democracy in the past seventy three years. 

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