Answer To An Objection

I don't know how much in law schools they discuss the actual history of the self-given power of the Supreme Court to overturn laws adopted by the Congress and passed into law under the regular Constitutional order - what is actually spelled out in the words of the Constitution, duly adopted by the fabled and entirely inappropriately deified "founders" and ratified by the legislatures of the various states in exactly the way the self-given power to allow five unelected judges to make and break laws is not spelled out.  But the history of how the members of the court, all on their own, gave themselves that power unlisted as going to the Supreme Court and which  is contradicted by most of the rest of the Constitution does not support the practice.

In my youth, while the deputedly liberal Earl Warren court was racking up an admirable record of forcing equality that was blocked by the heirs of the slave power and in other areas, doing some other good things even as they were sowing the seeds of poison that would undo much of what they did in the next half-century - those seeds marked in a package that said "free speech -free press" the great voices in opposition to "lawmaking from the bench" were the right, from the Ripon Society branch of the Republicans to the overt fascists who were also, largely, though not exclusively members of that party.  Now that the fascists have entirely taken it over they, especially the heirs of the slave-power, Mitch McConnell, certainly among them, but the Federalist Fascists, the white-supremacists are the biggest, fattest fans of making law from the bench there ever were, as long as they get to stuff the benches with their fascist goons. 

The "liberals" who were so desperate to maintain the paltry but essential progress of the Warren Court's equality rulings developed the uncritical habits of obedience to the Supreme Court and the practice of the Court majority, even 5-4, overturning laws and even long standing court precident that to critisize the court as I have was considered heresy.  I think it was within the first week of me making comments on that new innovation, blog comment threads, that someone accused me of being the type who would have impeached Earl Warren.   They didn't seem to notice that the "principled" opponents of "activist courts" were now using the very same principle that Warren used to destroy everything the Court did under him and that they had been since Nixon's time. 

Clearly the liberal strategy that worked, so long as the Court was not stuffed with fascists, worked even better once, using the freedom to lie in the media given by the Warren Court, a series of Republican-fascists and the media that lied Democrats out of office staffed the Court with opponents of equality and decency, the servants of oligarchs and pathological figures such as Clarence Thomas and Brett Kavanaugh.   Clearly the ideas of the 1950s and 60s were not terribly well thought out, or maybe the fact of the thinness of the power liberals held didn't sink in very far. 

The history of the power grab by the court in the famous Marbury v. Madison case is generally the topic of a short paragraph or two in the history course we took in high school and like so much of that conventionalized history, it is a lie.  I didn't realize how false it was until I started looking into the work of, of all people,  Louis Boudin, the radical lawyer (at least a quasi-Marxist for much of his life) who was also one of the most passionate and insightful opponents of "Government By Judiciary" I've ever run across.   I have only read parts of his long work on the subject but many of the essential facts and arguments are contained in a 1911 article in the Political Science Quarterly that I think I'll go through.  In the article, as in the introduction of his book he says his purpose is to confirm one and refute another statement made by the quite dodgy Oliver Wendell Holmes jr.

The earlier of these statements--the one the present writer has endeavored to disprove--was made by Judge Holmes in an official opinion, handed down by him as Associate Justice of the United States Supreme Court in the case of Blodgett v. Holden, ( 275 U.S. 142), decided November 21st, 1927. It refers to the right of our Judges to declare laws unconstitutional and occurs in the following paragraph. Says Judge Holmes:

"Although research has shown and practice has established the futility of the charge that it was a usurpation when this court undertook to declare an act of Congress unconstitutional, I suppose that we all agree that to do so is the gravest and most delicate duty that this court is called on to perform."

Such a statement coming from such a source should give pause to any one--and the present writer is second to none in his admiration for the Grand Old Man of American Jurisprudence. Nevertheless, he ventures to assert that the present work disproves the correctness of this statement as contained in the italicized words; and that the charge referred to by Mr. Justice Holmes, frequently made before and reiterated by the present writer in an essay published by him twenty years ago in the POLITICAL SCIENCE QUARTERLY ( Government by Judiciary, 26 P.S.Q. 238; June, 1911), is fully sustained by the facts and considerations presented in these volumes.

The article, in my opinion, quite decisively made that refutation.  It points out that even at the time of the writing of the Constitution there was considerable hostility to several court cases in which judges sought to nullify laws adopted by legislatures in some of the states, he notes that one of the "founders" was one of the foremost opponents of such legislative powers being usurped by the judiciary and that if they had been intended in the Constitutional Convention he would have certainly raised hell over it.  He shows that that hostility to such assertions didn't end with the adoption of the Constitution or as the government was being set up.  He notes that Marbury v Madison was largely a moot question by the time the decision claiming that power for the Supreme Court was handed down and that if it hadn't been,  Jefferson and the members of his party may very well have challenged it by not recognizing or allowing that decision to be implemented in reality.  He notes that it was a half-century before the Court asserted that power again and when it did, it was to hand down one of the worst things it ever did. 

One of the most interesting parts of the article is his discussion  and relevant to my question of what would happen if a president and Congress just chose not to recognize any overturning of a duly adopted law short of a unanious court decision - was the second time the Supreme Court asserted that power that it gave itself in Marbury v Madison, the infamous Dred Scott decision.  He points out that no less a figure than Abraham Lincoln rejected the decision so made and that it was largely ignored and widely objected to. Though that cannot be said to have been THE thing that led to the terrible Civil War it was certainly an important contribution to the encouragement of the slave power (of which Taney and other members of the court were members) and the exposure of the terrible flaws in the Constitution and the government it set up. 

Any Constitution which requires a terrible, bloody civil war, far from certain in its outcome, to be ammended is the definition of a badly thought out document.

If The Constitution of the United States, in either the remnants of its original form or as further amended by unelected Supreme Courts in rulings unratified by any states, will NOT lead to a second civil war is certainly nothing any thinking person would bet on.  And if not a civil war the kind of fascist dictatorship of oligarchs which the present Republican Party is trying to set up with the help of the dictators of Russia and such places as Saudi Arabia. 

This is damned serious and if you don't get how serious I'll remind you that we spent another couple of anxious days worrying about the health of Ruth Bader Ginsburg over the weekend.  It is ridiculous that we tolerate such a thing based, in no small part, on that power which the Supreme Court gave itself.  One of the things that the article notes is that the right was assumed by Federalists, of the party of John Adams, on behalf of his appointees against the actions of the Jeffersonian Democratic Republicans - that power was created out of the partisan interest of those who made it no less than Bush v Gore or so many other decisions of the Republican-fascist majority of the present court.  If they rule in favor of Trump, making him a king, I think it might take a civil war to undo what those Ivy League lawyers did while they sat on their unelected asses on the bench they were put on to serve partisan interests. 

I won't go into it yet but I will probably discuss a paper written about Louis Boudin's book which quotes, in a rather supreme irony,  William Rehnquist's writing on this topic.  Considering the ease with which Rehnquist overturned the counting of the ballots to put the idiot George W. Bush in the presidency, you might forgive me for not believing he was sincere in his critique of judicial activism, but the points made might be interesting to consider.  I'll give a citation when I get ready to discuss it.