Eighteenth Burmaire, refers to a date by the silly French Republican calendar, the date of the supposedly bloodless coup by Napoleon and other military officers taking over the government of France from the rump of (their fellow) revolutionaries as those boobs who were left after the repeated fratricide of those governing under the banner of "Liberté, égalité, fraternité" as the liberty lovin' brothers individually and through their factions, sought to gain unequal power for themselves, imprisoning their political rivals (depriving them of their liberty) and chopping off their heads, lost steam. The lesson of revolutions is they are as likely to produce a mockery of their announced ideals almost as soon as they are won, it is one of the most unreliable means of changing life for the better that there is. America's did nothing to cleanse us of our original sins of slavery, subjugation of women, etc. That said, the rarity of a hero of a revolution such as Washington was here, relinquishing power to a regular order of somewhat democratic succession, is sufficiently rare as to justify at least that act of his even as his many other character defects, slave-owning, genocide, etc. show the wisdom of not allowing the kind of self-granted power that Napoleon got for himself, making him a hero to many though many were put off when he crowned himself emperor. A point that even the often meat-headed Byron was smart enough to notice.
I think it's entirely justified to make a comparison of the Supreme Court's self-granted powers which appear nowhere in the Constitution to the act of Napoleon in making himself a dictator though translated to American English. The present day Supreme Court, led by a man who started the restoration of American apartheid in his destruction of the Voting Rights Act but who realizes if his fellow Republican-fascists go too-far, too fast people will notice the restoration of enough of of the program of the billionaire-millionaire oligarchs too fast that it will give the game away. Roberts wants us to acclimate to oligarchy like the frog in the heating pot hoping enough will be lulled into complacency before we boil.
I find myself hoping that they are so outrageous in their ambitions to destroy equality and self-government that there is a reaction that will once and for all end what Marshall started on February 24th, 1803. I'm hoping the backlash to the destruction of Roe v. Wade, the re-imposition of American apartheid and the myriad other evils they are delivering for their patrons and the members of their economic class will end with term limits, lifetime bans on having a financial interest in matters they adjudicate, real and binding and career ending ethics codes and an honest method of choosing members of that court. I hope it ends in the exposing and discrediting of masses of corrupt Supreme Court and other precedent and of the corrupt conspiracy started by Louis Powell and pushed by the Federalist fascists and Republican-fascists.
Boudin proves his case in his two-volumes quite convincingly, I fully believe this is the case
It is our contention that Marshall’s act was not warranted by the Constitution, and that the present exercise of power by the Judiciary is not warranted by the courts' own theory of the Constitution as laid down by Marshall. And the second half of this double-header is in our opinion more important than the first half, important as that undoubtedly is.
That bad as John Marshall's original usurpation of power for the court (I have no need to be as circumspect in that as Boudin chose to be) was, it became steadily worse in use by future Supreme Courts which went way beyond the theory that Marshall justified that Supreme Court amending of the Constitution with. I think his argument is obviously true, that the steps taken to increase Supreme Court empowerment as of a century ago has, entirely, gotten out of hand.
The motivation of Louis Powell for laying out his mapping for the "Court Capture" in the 1970s was his hostility to the Civil Rights movement as its demands went from a theoretical "level playing field" to the demand for real equality. I don't think it would be at all unfair to say that he, like Roberts is a genteel segregationist at heart, though they may tolerate a few Black People of the acceptable type on occasion. This paper certainly makes a good case that in the years up to what should be a deservedly infamous plan to capture the court for the oligarchs such as himself and Roberts was his hostility to the Civil Rights Movement, though I would go much farther and say that like almost all Supreme Court made law - apart from the few things done in the Warren Court that break that mold - it was a means of establishing actual inequality in real life through the mere language of equality and the lie of judicial impartiality.*
The lip-service paid to the Brown v Board of Education ruling by the Warren Court is belied by the fact that schools desegregated under it quickly became resegregated by various means, economic inequality being one of the most potent means of reimposing a de facto American apartheid in even public education in most places.
The fury and rage of the American elite over integration at the most elite of training grounds for the ruling class, such as the case to destroy affirmative action through Harvard, the announcement of which inspired me to start this discussion, shows how they will protect those private bastions of reliable class branding even though they were ready to relinquish the public schools on a lower level, at least theoretically. That is what Powell's conclusion that 1960 was the high water mark in racial equality means, the racial equality that retained most of American apartheid under the Constitution and which is resurgent under first Rehnquist and now Roberts.
The present day romantic fantasies about the Supreme Court are entirely anachronistic and largely due to the entirely atypical use of judicial review for a few years in the 1950s to the early 1970s to do the opposite of what that tool has most been used for. It is a reaction against that atypical use of Government by Judiciary which led to Powell's Court Capture scheme because it's obvious that they had no problem with a Supreme Court exercising both legislative and executive-regulatory powers as long as it was on behalf of the elites and the rich and not on behalf of the least among us. I would not argue that the Warren Court's every decision even with the best of intentions was wise or sustainable. I think much of what they did played right into the hands of the enemies of equality and, especially, government of, by and for The People.
Class as much as race is behind this, which I am quite certain played the biggest part in Louis Boudin's massive effort to document and expose the corrupt practices of the Supreme Court. I am certain that he was aware that his association with Marxism was a liability which would be used against his scholarship, knowing that today anything he said would be attacked because of that, one of the reasons that I have not done what I've encouraged for the past several years, reading his book and checking his references and his reasoning.
That's the thing about argument backed by evidence and logic, the foibles and even the character of the person making the argument can be surpassed by a well and honestly evidenced logical argument. Of course, today, with our TV-trained, entertainment-internet addled population - perhaps even more those with college-credentials than those without, dishonest use of Boudin's Marxist associations will be used as a weapon by those interested in maintaining government by judiciary because it works so well for the oligarchs today as it almost always worked so well for the slave owners such as John Marshall and a majority of pre-Civil War members of the Court, for the segregationists after and those who use "equal justice under law" to enrich the rich and impoverish the poor.
* However, Powell’s critiques of King and the movement in the 1960s are worth revisiting, not least because they provide insight into his ideas about black rights, racial justice, and the appropriate relationship between law and social equality, all ideas that went on to shape some of his most important opinions in the 1970s and 80s. Though remembered as a moderate, Powell displayed little sympathy for the black struggle in the 1960s, concluding instead that Brown’s mandate had been met with the dismantling of overt segregation, and that the quest for racial reform had, by the close of the 1960s, reached its logical conclusion. This view reflected a larger sense on Powell’s part that the Constitution was not a vehicle for reform so much as a framework for pluralism, a guarantor of procedural fairness, and a bulwark against socialism; a doctrine that Powell felt was emerging increasingly, and alarmingly, in the words and writings of Dr. King. While Martin Luther King’s early call for the eradication of overt Jim Crow laws in the South in the 1950s struck Powell as an acceptable, if not completely copacetic, constitutional position; King’s shift from overt segregation to more aggressive demands that the federal government end poverty, abolish racial inequality and provide “compensatory” justice to blacks in the 1960s were not, as Powell saw it, legitimate constitutional matters.11 Social inequality, believed the Virginia native, constituted a basic reality of life in the United States, even contributing to what he termed America’s “pluralistic society,” a society
marked by racial, ethnic, religious, and economic “diversity” – a diversity of experience and achievement that the Constitution was bound not to change but to protect.12
Powell’s faith in diversity and doubts about equality provide particularly relevant insight into one of the single most important questions confronting litigation in the school arena today, namely the continued constitutionality of race in university admissions.13 To Powell, who sanctioned the consideration of color by admissions committees, diversity warranted constitutional protection on its own terms, independent of affirmative action or other “compensatory” schemes, precisely because it was a defining characteristic of American civilization that distinguished the United States from the Soviet Union.14 Though his negative views of the movement reeked of Confederate mothballs, Powell’s vision of diversity and pluralism as bedrock values that distinguished the United States from Russia provides an intriguing, perhaps even useful frame for assessing the continued relevance of diversity in university admissions today.15 Courts have tended to miss this, presuming instead that diversity constitutes little more than a guise for affirmative action programs aimed at addressing racial discrimination,an argument popularized by Robert Dahl in the 1980s.16 However, Powell’s vision was different. He discounted the need for affirmative action, arguing that African Americans had not suffered any more discrimination than whites and did not deserve special dispensation by the state. However, he conceded that blacks might nevertheless bring a unique perspective to the classroom, as might certain privileged whites, both of whom could have low scores forgiven to achieve.
Just as Marshall's original usurpation of power, under use by later Supreme Court "justices" became more extreme, Powell's genteel racism and hostility towards equality is changing in both strength and character under the present Roberts Court. "Judicial impartiality" is a potent and treacherously dishonest slogan to cover the very partiality of the elitists of the Supreme Court and you should always look for that whenever it or its equivalent is claimed
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