HERE IS A LINK to the 1911 paper of Louis Boudin. Government By Judiciary which he developed into his masterful book on the topic. It is worth reading in itself, showing what a good scholar he was in abbreviated form, though, of course, a 33 page paper can't do what two large volumes can. It can make some of the arguments in a more easily digested form.
Ideally I should be linking to all of the records of all of the cases and other things Boudin cites so you can read them for yourselves but this is going to be a huge amount of work as it is. I am certain that I won't be able to go over his entire two-volumes, I may pick and choose parts of it to go over though I have yet to find a passage in it that isn't worth consideration.
I will point out something in it about the infamous Lochner case which has been brought to mind because the Republican-fascists on the Supreme Court have been set on a course to abolish more than a century of hard fought progress in labor rights and other rights bringing us back to the appalling status quo of 1911 when Louis Boudin wrote this:
Under the old rules of interpretation, which limited judicial inquiry to the matter of legislative competence, these two cases must have been decided in the same way. Either both laws were constitutional or they were both unconstitutional. In the earlier case, Holden v. Hardy, the Supreme Court decided that the state legislature had the power to pass a law limiting the hours of work in any industry when it-the legislature-came to the conclusion that longer hours would endanger the health of those employed in that industry. It followed as an irresistible conclusion that the bakery law was constitutional, the legislature enacting it having come to the conclusion that it was necessaryfor the protection of the health of those working in bakeries.The decision in Lochner v. New York, declaring that law unconstitutional, startled the legal profession and evoked vigorous protest from many constitutional lawyers. They could not understand it. They accused the Supreme Court of inconsistency. But the truth is that the court had discarded the old rules of constitutional interpretation and had adopted an entirely different theory. An examination of the dissenting opinion in that case, when it was before the New York Court of Appeals, and of the prevailing opinion in the United States Supreme Court, clearly shows this shifting of ground. Under the new rule of interpretation, it is no longer a question whether the legislature has the power to limit the hours of labor, when it determines that such a limitation is necessary for the health of those engaged in a particular industry; the question is whether that power has been wisely used. The power of the legislature is conceded, but its discretion is reviewed and is determined to have been improperly exercised. The legislature has found that work in a bakery beyond a certain number of hours is dangerous to health. But, says the court, we don't consider it so. And it was their judgment on the matter of the healthfulness of work in a bakery, not their judgment on the constitutional power of the legislature, that led five out of the nine judges to declare the law unconstitutional.
He further points out the whimsicality and arbitrariness that is typical of Supreme Court made law and the fact that in doing all of this the Supreme Court through its self-given power of judicial review and having a swing vote fomenting a revolution that overthrows the actions of elected government and, more often than not, grants victory to the rich and privileged over common people.
Another glaring instance of the open assumption of legislative discretion by the judiciary is furnished by the recent decision of the United States Supreme Court in the case of Mullerv. Oregon. In that case the Oregon statute under consideration limited the hours of work for women in "mechanical establishments, factories and laundries," to ten hours a day. This law was declared constitutional "as to laundries." The Supreme Court conceded the power of the state legislature to limit the hours of work for women, on the ground that "as healthy mothers are necessary for healthy offspring" the health of women is a matter of special concern to the state. And yet the court limited its approval of the exercise of that power to the case of laundries, reserving to itself the right to declare the law unconstitutional as to "mechanical establishments" and "factories" if it should conclude on future investigation that the state legislature had made an unwise use of its conceded powers as regards such establishments.
Approval of the decision in Muller v. Oregon as a matter of legislative policy, because of its effect upon the condition of the working class of this country, should not blind us to its significance as regards the distribution of political power in our governmental system. In the latter respect it openly, I may say almost defiantly, maintains the position that to the judiciary belongs the supreme control of all legislation and that it means to use it. To say, in the face of these decisions and the many more that could be cited but for lack of space, that our courts do not exercise any legislative power, seems like adding insult to injury. And it is certainly a strange commentary on Judge Lurton's declaration, that the judicial power insures to us "a government of laws and not a government of men," that within three months after the publication of these words the New York court of appeals rendered a decision ' which led the editors of two important magazines to the doleful conclusion that nothing can help us-not even an amendment to the Constitution-except the election to the judiciary of proper men, not men learned in the law and in the Constitution, but men with a knowledge of life and plenty of common sense. These editors meekly accept the political situation created by the latest phase of the development of the judicial power and merely suggest a remedy for our social and economic ills on the basis of that political situation. But the great question before the people of the United States is: Shall we permit this political situation to become firmly and irrevocably established? Shall we permit this great revolution in our political institutions to take place undisputed? And the question before our leaders of thought is: Shall we permit this revolution to take place without even calling the attention of the people of the United States to its momentous character?
Obviously, through the ahistorical and absurd reverence as taught in civics classes, through the romantic and absurd presentation of the Supreme Court in a soft-focus, amber tinted lens and, to people who know better, emetic of pious lies we have been suckered into permitting it BECAUSE THE PEOPLE WHO HAVE CONTROL OF THE MEDIA BENEFIT THE MOST FROM IT. I would hold that Louis Boudin went too easy on "justice" Holmes even though his pointing out his two-step on the question that is at the heart of his critique is far more rigorous criticism than Holmes is ever subjected to by just about anyone else.
The Supreme Court is about to undo all of the progress of the last century and more while leaving a false front of that to sucker the suckers. They've been at this a long time. As I've had to point out to a lot of people online since I started writing, Earl Warren's been dead a hell of a long time and if you look honestly at the atypical record of his court it is an outlier that was often as bad as whatever good he and his colleagues did is a mixed bag. The pieties built up over the reputations of such "justices" as Holmes and Brandeis and the Warren court are dangerous absurdities when you have a fixed Republican-fascist majority set on destroying equality and decency and have their eyes set on rigging electoral democracy for their party and the economic elite it works for.
If we are going to have an egalitarian democracy there is no question but that we have to have a revolution that strips the court of its power to do what this one and the ones before it have done repeatedly. There is no limit on what they won't do to reach their predetermined ends, the ones they lied through their teeth about under oath during their confirmations as every single person in the Senate knew they were lying through their teeth.
Update: Thinking about this I wondered if the reason they allowed the regulation of work in laundries and not in factories isn't directly a matter of real or perceived benefits to the wealthier class who were far more likely to own factories whereas laundries were probably more likely owned by those of far more modest fortunes. Not to mention the likely racial-class differences between the class who owned factories and those who were more likely to own laundries in 1908 when the Muller v Oregon ruling was handed down. I think it's never the wrong question when you consider both the level of wealth and, even more so, the race and ethnicity of those who the Supreme Court "justices" imagine will benefit from their rulings or be subjugated by them. As the lecture linked to yesterday pointed out, even when there is not a technically corrupt self-interest in a case, the economic or other interest of the "justices" even the most lauded and admired in history certainly is reflected in their rulings. I am tempted to transcribe a large chunk of the lecture in regard to John Marshall's self-interest as a slave master, one cold blooded enough to have recorded his resentment of a slave who died and whose burial he had to pay for, not recording his sorrow over a life lost but an investment lessened.
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