When I read the writings of lawyers, especially when they deal with the esoteric aspects of Supreme and other court rulings I almost always find something said that leaves a sour taste in my mouth. That's something that happens even when I agree with them. There is often something inhumanly expedient in such legal writing, something that values some theory of law or far from obviously moral principle that is put above even life, as can be seen in some of the most recent rulings of the Rehnquist and Roberts courts on such things as the death penalty and other basic aspects of injustice for real People.
While there are lawyers I really like - off the top of my head, just now, Jill Wine-Banks who I really like a lot - even a lot who I respect leave me a little cold.
I can not say that I deeply admire the Marxist, later just radical lawyer and scholar of the law, Louis Boudin, who I first knew as the guy who, as the John Reed faction of communists were destroying the Eugene Debs Socialist Party, went into Reed's break-away meeting only to leave it in disgust saying he "had not quit a band of crooks to join a band of lunatics." Which was, in itself an ambiguous act which destroyed the only successful Socialist Party in United States history (almost certainly as a result of orders from Lenin and Trotsky) but which Boudin obviously saw, immediately was disastrously stupid. As I once said here, no one should watch the movie Reds without understanding what duplicitous idiots and asses John Reed and his faction were.
I didn't first look into Louis Boudin's massive, critical study, Government By Judiciary expecting to like it or its author. I didn't but that's entirely beside the point. Boudin's work is something that I think has become more important as the corruption of the Rehnquist and Roberts Courts play out what he was warning about more than eighty years ago. It's a work in which he raised the same conclusions about the danger the Supreme Court was to democracy I came to conclude watching how the Courts have wittingly undermined democracy, in the case of the Rehnquist and Roberts courts, and unwittingly in the case of the Warren and even the Berger courts. And I have come to the conclusion that they have used even admirable examples of judicial activism (the Warren Court) to attack the rule of law - if you believe that legitimate law is a product of the legislative process - and an inevitably conservative (I would say almost always inherently corrupt) branch of government under the United States Constitution has usurped that power to the destruction of both democracy and legitimacy. Most critically, after the Sullivan Decision that stupidly gave the media the ability to lie on behalf of the millionaires and billionires who had control of the sources of information people rely on to vote, the rulings using the "free speech - free press" language of the civil liberties industry to destroy the emergency legislation to distance our elections from that very influence in media spending and the outright system of bribery that predictably and inevitably grew up in the wake of those decisions.
I have wanted to do a long series going through some of Louis Boudin's points more thoroughly but I doubt I'd be able to do his arguments justice. Time is growing short. I have, though, recently re-read this thesis by Sarah Ballinger, “Government by a Few Conservative Men”: An Examination of Louis Boudin’s Understanding of the Abuse of the Judicial Power and the Decline of Judicial Restraint by the Supreme Court, and will probably be going through it in posts as the nomination of a Federalist Society fascist comes more into the news.
When I first started posting criticism of the decisions of the Warren court that have been mostly useful to Republicans to thwart the right to an effective and informed vote, of a government of, by and for The People, instead of one bought by billionaires foreign and domestic (look at the stories in the news about the Koch brothers shopping for a Democratic senator because they hope she'll make them richer, right out in the open) lefties online got the heebie jeebies tut-tutting about earlier fascists putting up bill boards calling for the impeachment of Earl Warren and bleating about Brown v. Board of Education and the such.
Well, in real life we now have a fascist nominee who has called into question the legitimacy of Brown, who will lie about that when he's questioned about that in the Senate, who has already done a two-step around his claims about first the rightness of a Democratic President being hauled into court but, later, said it wouldn't be all right if the same were done to a Republican and pretty much saying he thought that a Republican president had the equivalent of a divine right to break laws and get away with it (he didn't say "Republican" but given his habits, that is merely a tacit adjective). He will answer the hypocritical calls by Republicans in opposition to "judicial activism" by saying he opposes that, as have liars like Rehnquist, Roberts, Scalia, Thomas, Alito, Kennedy and Gorsuch, even as they practice the most expansive of judicial activism with the approval of the same Senators who badmouthed it, even overturning long standing decisions of the court. They have overturned much of that small body of liberal judicial activism by such as the Warren court using the same judicial activism that the Warren court was accused of using to come to those decisions.
Louis Boudin noted that in the past it was liberals who were critical of the judicial activism of conservatives, noting that some of the most horrendous decisions in the past have been conservative judicial activism. Liberals didn't get into that act in a big way until two decades after he wrote the book. And that window of liberal activism didn't work out so well, as things developed.
I think that one of the ideas in Louis Boudin's book, that is worth considering is that the Court's power to overturn legislation is only legitimate when it is the case that no reasonable case can be made that the legislation is constitutional, as the author of the thesis notes, that would call into question all of the putrid 5/4 decisions such as the Rehnquist and Roberts courts have issued to do things like destroy the attempts by the Congress and previous presidents to prevent domestic billionaires from buying Senators and entire parties and, as was warned in the Citizens United decision, opening up the Court instituted market for the American government to the bids of foreign billionaires, such as the Putin crime mob has, in fact, achieved.
Things can't go on the way they have been and the primary vehicle for the destruction of American democracy has been the Supreme Court, either through unintended idiocy like the Sullivan decision or the openly corrupt decisions such as Buckley v. Valeo, Citizens United and virtually all of the court decisions opening up our entire democratic process to corruption. And that's getting right to the source of it, ultimately the corruption and death of democracy starts with allowing the American People to be lied to with all of the methods PR has developed to sell them junk and poison, wielded of, by and for those with the wealth to buy the media. While that's an even deeper problem, all of that became worse through the constitutional high priests of the Supreme Court.
I talked to my brother about something impinging on this earlier today. He's extremely skeptical that anything can be done about it. I don't know if he's right or if I am that something can be found that will enable the continuation of democracy. But if there isn't, then you can kiss anything but oligarchy and, in the fullness of time, autocracy good bye.
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