Every popular, democratic, or progressive movement since that famous adjudication—which means during almost our entire existence as a nation under the Constitution—has had an anti-judicial point

IN THE FIRST SENTENCE of the first chapter of Government by Judiciary, Louis Boudin lays out virtually the entire history of the real role the United States Supreme Court has had in preventing government of, by and FOR The People, egalitarian democracy and economic and so all justice.  It is such an important point that I used it for the title of this post.  

I was tempted to skip to the worst of the instances in the long history of evil done by the Supreme Court in the book - many happened after it, a list the present Roberts-Plessy court is adding to with unusual determination.  Knowing that in doing that I'm not only arguing for the actual history in order to argue why the Supreme Court needs not only reform but restraints put on it but a total change in how its role is regarded within the legal and judicial worlds and how its role should never, ever again be seen as is it could properly, as an imaginary baseball umpire impartially call balls and strikes - so remarkably that history has so heavily called those for the opponents of equality, for the wealthy and well to do and, so, powerful and those things which have enhanced their wealth and power

In doing that you have to fight over the movie and TV and court-reporter created ahistorical, romantic fantasy which, if they have any thoughts about the Supreme Court at all, constitutes a dangerous delusion which canny politicians will know not to violate.   When I first started commenting on politics online and I started slamming the, then, Rehnquist court, horrified secular liberals accused me of being like the Republican fascists who put up bill boards calling for the impeachment of the sanctified and romanticized,  Earl Warren.  I had to inform more than a few of them that Warren and his court had been dead for a number of decades even then.  Like the nauseating sanctimony erected around the college-pro football industry, that around the Supreme Court is like dumping a stadium full of artificial fragrance over the nation's biggest cess pool.  Give the Roberts-Plessy court a few more years and let's see if you still think that's over the top.

THE GOVERNMENT WE LIVE UNDER

For a century and a quarter - ever since the decision of Marbury V. Madison - the Judicial Power has been the storm-centre of American politics. Every popular, democratic, or progressive movement since that famous adjudication—which means during almost our entire existence as a nation under the Constitution—has had an anti-judicial point. Jefferson's dislike of author and decision, and his never-ceasing warnings against the federal judiciary as the “corps of sappers and miners” constantly at work undermining the Constitution, are too well-known to require recounting here. The rise of Jacksonian Democracy had a decided anti-judicial edge. In the struggle against slavery, attacks upon the courts played a prominent part, and the famous Lincoln- Douglas debates turned mainly about a court decision. In the first country-wide popular upheaval after the Civil War—the Bryan campaign of 1896—the Judicial Power was one of the two great issues bitterly contested in that memorable struggle, the great Commoner*s attacks upon the Judiciary probably being considered by his supporters as well as by his opponents more important than his advocacy of the free coinage of silver. And the Judicial Power was practically the sole issue when the Hosts of the Lord met their enemies at Armageddon in 1912. 

Referring to the presidential election of 1912 when Bryan's endorsement eventually won Wilson the presidency.  

The list of progressive struggles in which the Supreme Court acted as the agents of the beneficiaries of the oppressive, unequal status quo would be a very long one, the list of those times in which it had a minor role in favoring the underdog are inconsequential and, as the present court demonstrates, as easily swept aside by the all supreme Supreme Court by fiat. When Brett Kavanaugh's thinking and writing can destroy what was left after John Roberts gutted the Voting Rights Act, they're not even trying to pretend it's any more elevated than that.   This is the perennial issue for Americans who favor equality and equal justice, economic justice and, as we will soon find out as they destroy the Clean Water Act and other acts of environmental protection, every bit of progress made since before Boudin was first writing his book.

And with each battle fought the hold of the Judicial Power upon the conservative forces of the country has grown stronger. So much so, that about the time Mr. Roosevelt and his Progressives made their onslaught it was considered by the conservatives as little short of treason to question the legitimacy of that power or to criticize the manner of its exercise. The Judicial Power became the “sheet-anchor of the Constitution,” and the Supreme Court, as the chief repository of that power, a sacred institution. This attitude is best illustrated by the following incident:

In the summer of 1909 there was pending in Congress a bill for an income tax. Such a law had been declared unconstitutional by the Supreme Court in 1895. But the circumstances under which that decision was rendered were such that many people now believed that if the question were again to come before that tribunal the decision would be favorable to such legislation. Income taxes had by this time come to be regarded as part of the taxing policy of every enlightened community, and had ceased to be considered radical. Hence the introduction of the bill. But the bill was opposed by the conservatives in Congress, not on the ground that the taxes thereby provided were improper or unconstitutional, but on the ground that an attempt to bring the matter again before the Supreme Court in this fashion was irreverent, and that whatever its decision, it would result in a loss of prestige to the Court. The possible loss of prestige by the Supreme Court was considered a more serious evil than the assured loss to the Federal Government of a great and recognized power of government, and its preservation more important than the adoption by the country of a just and enlightened system of taxation. Curiously enough, this point of view was stressed mainly by the professed followers of John Marshall, whose great services to the country consisted in his solicitude for the maintenance and preservation of the powers of the Federal Government.

Mr. Elihu Root, the dean of the American Bar, then serving as United States Senator from the Empire State, after having served successively as Secretary of War and Secretary of State. On July 1st, 1909, he addressed the U. S. Senate thus:

“But, Mr. President, what is it that we propose to do with the Supreme Court? Is it the ordinary case of the suitor asking for a rehearing? No; do not let us delude ourselves about that. It is that the Congress of the United States shall deliberately pass, and the President of the United States shall sign, and that the legislative and executive departments thus conjointly shall place upon
the statute book as a law a measure which the Supreme Court has declared to be unconstitutional and void. And, then, Mr. President, what are we to encounter?   A campaign of oratory upon the stump, of editorials in the press, of denunciation and imputation designed to compel that great tribunal to yield to the force of the opinion of the executive and the legislative branches. If they yield, what then?  Where then would be the confidence of our people in the justice of their judgment? If they refuse to yield, what then. A breach between the two parts of our government, with popular acclaim behind the popular branch, all setting against the independence, the dignity, the respect, the sacredness of that great tribunal whose function in our system of government has made us unlike any republic that ever existed in the world, whose part in our government is the greatest contribution that America has made to political science.” (Quoted by Bowman, in Congress and the Supreme Court, Political Science Quarterly, March.
1910.) 

I will note all through this that even as the Supreme Court members lie about the obvious fact that their history and acts favor the entrenched wealth and power and political hegemony of those who have an interest in preventing equality, egalitarian democracy and economic justice, there are those who have benefitted from their stifling of "every popular, democratic or progressive movement" since the Court granted itself the power to do so in 1803, they have been either the present or the aspiring members of the elites which the Court has almost entirely served with few and inadequate exceptions. 

I will note that Boudin quoted one such who had both been born into privilege and who became wealthy and powerful through serving them, a man who was still alive at the time, Elihu Root, a corporate lawyer who was one of those who defended Boss Tweed who was a more competent Michael Cohen (who never found it to his benefit to do what Cohen has since done) to Andrew Carnegie, Chester Arthur, Jay Gould and a host of others before he started amassing presidential appointments and straddling the fence between establishment Republicanism and the "progressives" while never endangering his position with the establishment.   I have no knowledge of his thinking on Jim Crow though he was a bitter and active opponent of Women's Suffrage and the equality of women, in general.  

Such people, such proponents of government by Supreme Court fiat have always been in favor of that BECAUSE THEY CAN DEPEND ON THE COURT ON MORE THAN A WHOLE FAVORING THE RICH AND SO POWERFUL.   Those among them who may not be racists or misogynists, who may even be Black or Women themselves, will not be much bothered by the racist and sexist attacks by the Court on equality, they won't be much bothered by the attacks on Native Americans rights, on the rights of LGBTQ people, on other members of other minorities, the prejudice against such people have always produced a swayable percentage of the electorate to prove useful to electorally win - as we saw this week ever more so when the Supreme Court works hand in glove with the racists to keep those opposed to them away from the ballot box.  That's a practice as old as the goddamned Constution set up to keep Black People from voting even as they were used to hand outsized power to their enslavers.   

As I'm finding it necessary to overlap paragraphs in Boudin's text, I'll give you the questions he asks after presenting the root of the problem.

What is this unique power which is “the greatest contribution that America has made to political science,” and which makes the depository of that power sacred? Also, whence comes this power which makes us “unlike any republic that ever existed,” and which makes the dignity of those who exercise it of more consequence to the nation than a just and enlightened system of taxation? 

Like Boudin, I'd imagine you know the answer to that one.