". . . and that was his chief purpose in the second decision. But that was not permissible under our official theory of the Judicial Power"

THE MORE YOU look at the Dred Scott decision, both for its turning Black People into non-persons, into mere property of the slave holders whose representation on the Supreme Court was overwhelming and out of all measure to the percentage they were in the country, the clearer it is that even more than the sheer evil that is generally attributed to Taney and his concurring associates was there in their scheme.  

I think they had nothing less envisioned than to entirely suppress abolitionism and to enforce slavery throughout the country.  If the Civil War hadn't happened, I think they and subsequent Courts may well have done that.  And their plans certainly including amending the Constitution through their newly self-granted powers, bypassing Congress and president and state legislatures to do so.  I think that was the reason for them inventing their power to overturn some of the most important legislation that has ever managed to get through the Congress and signed by a president, from the Missouri Compromise and continuing today with the nullification of the Voting Rights Act that the present Roberts Court is using to turn us back to the days of American apartheid, this time not confined to the states of the former confederacy.   The Roberts Court, dominated by white supremacists and one truly twisted and spiteful man, are started on doing what the Taney Court was merely delayed in doing.   And don't forget the Rehnquist Court overturning an actual presidential election in 2000, covering its disgusting act with the pretense that future Courts and courts and litigants and law scribblers were never to use their criminal act as a precedent for future excuses to do evil.  Something which the last two decades have proved was a lie handed down from that highest bench.

The dishonesty and violation of not only the rules of the law and the courts but logic, itself is totally permissible by the Court rigged procedure as can be seen in this next section.  

I will note that I have included some paragraph breaks for what I hope is clarity and I may highlight some passages for emphasis that Boudin put into italics.

Judge Curtis has answered Chief Justice Taney's argument on the constitutionality of the Missouri Compromise Act in a manner that seems quite unanswerable.  He has also demolished that part of the Chief Justice's opinion that disposed of the effect of Scott's sojourn in Illinois by a reference to the law of Missouri - although on this point there has been some difference of opinion among jurists.  But we are not concerned here with the merits of either of these controversies.  What interests us here is, first, the historic fact that the Missouri Compromise Act was declared unconstitutional - and, secondly, the manner in which that as done in so far as it affected the growth of the Judicial Power.  

 It is in the latter connection that the questions we are now considering become important.  For the question of the manner in which the Missouri Compromise was declared unconstitutional turns largely on the question whether or not such a declaration was necessary to the adjudication of the case before the Court.  The Chief Justice and his associates of the majority were stung to the quick by the charge that the passing upon the constitutionality of the Missouri Compromise act was an extra-judicial performance not necessary for the adjudication of the case.  They kept on defending it, and so do some of their adherents to the present day.  Mr. Justice Wayne, whose concurring opinion is published in the official report immediately following that of the Chief Justice, prefaces his remarks by the statement that "

" Nothing belonging to the case has been left undecided, nor has any point been discussed and decided which was not called for by the record, or which was not necessary for the judicial disposiotion of it, in the way that it has been done, by more than a majority of the court."

Let us therefore see whether that is so in the Chief Justice's own view of the case.  In analyzing his opinion, the first thing to be noted is that the Chief Justice did not follow in his discussion the order of the questions suggested by us above,  in that he discussed the question of Scott's sojourn in Fort Snelling before discussing the question of his sojourn Rock Island, although the latter question arises first in the case,  both in the manner in which it appears in the record and as a matter of logic.  

It will be recalled that Scott's sojourn at Rock Island occurred before his sojourn at Fort Snelling, and in the official record of the case that fact appears first. 

Of course, if, for logical reasons in the development of the legal argument, the fact of his sojourn at Fort Snelling were of greater importance than his sojourn in Illinois,  the order in which these facts have actually occurred or in which they have appeared in the case would be of no importance.  But such is not the case here.  

On the contrary:  Not only the logic of the case but the economy of the argument demanded that the effect of Scott's sojourn in Illinois should be considered first.  And the Chief Justice Taney practically confesses that he was not doing the proper thing in departing from the natural order of the case,  by the excuse which he gives for doing so. 

 He says that he wanted to consider first the question of the freedom of Scott and his family, and then, if he should decide against the freedom of the rest of the family, he would consider whether at least Scott himself was free.  But this is clearly a subterfuge.  For as a matter of fact the ground upon which he finally disposed of the question of Scott's sojourn in Illinois - namely,  that upon his return to Missouri he lost the benefit of whatever freedom he may have acquired in free territory, disposed of the whole case, and the very elaborate discussion of the entire question of the constitutionality of the Missouri Compromise became superfluous.  

The real reason for Chief Justice Taney's departing from the natural and logical order of the case was that that course would have prevented him from discussing the constitutionality of the Missouri Compromise Act, and that was his chief purpose in the second decision.

But that was not permissible under our official theory of the Judicial Power.  Under that theory the right of the courts to pass upon the constitutionality of the laws is derived from the necessity to pass judgment on the rights of individuals.  It is a necessary corollary of that theory, that legislative acts may not be passed upon adversely by the courts except in cases of strict necessity;  that is to say that the failure to pass upon them would result in a denial of some right to the individual litigant whose rights are adversely affected by the statute.  .  . 

 

I can't remember who, in the discussions around the Supreme Court and the outrageous Republican-fascist race-baiting lies told about the nominee to the Court, Ketanji Brown Jackson, asserted the possibility or removing a rogue or dishonest or sleazy or even questionably criminal "justice" by impeachment.  Let's put that to rest, the removal of a Supreme Court "justice" by impeachment is as much a Constitutional myth as removing a clearly criminal President by impeachment.  The failure to remove in the two Trump impeachments the most clearly criminal president in the history of the country must force us to face the fact that the Constitutional mechanism for doing that doesn't AND HAS NEVER WORKED TO CHECK THE BEHAVIOR OF A CRIMINAL WHO KNOWS THEY WILL GET AWAY WITH IT.  It certainly is nothing that the most sleazy members of the Supreme Court, those who lied in their confirmation hearings, those who take emoluments from people who have put them on the Court to do their bidding and whose bidding they do on the court.  

All of that has produced the out-of-control, shameless Republican-fascist controlled Court we have had for this entire aging century.   That trend has always been there in the Court which, as Paul Finkelman and others have pointed out, has always seen "justices" hearing, refusing and deciding cases in which they have a clear financial interest.  Notably in legal slavery and in the post-Civil War period, de facto slavery or its near equivalent. 

The extent and the danger of the Court's out-of-control and impune power grab will see even the supposed rules of procedure and even logic be tossed aside - along with the Truth - has always been dangerous, now, in the Federalist-fascist selected Supreme Court majority we have, it is more dangerous than it has been any time in my lifetime.  One decent, even excellent nominee to the Court is good so far as that goes, it is not likely to go the whole way in that in our lifetimes.  Certainly not in what time remains to me.

This question is as important as who is the president because, as we have seen, either through the outrageous Bush v. Gore power-play by the Rehnquist Court or the Roberts Court working with Republican-fascists in state governments to reimpose voting restrictions on Black People, on young People, on others who may vote more reliably for Democrats, who gets to be president depends on them not being able to do that.  And there is nothing in the goddamned Constitution that will reign it in.  

I think we may need to amend the Constitution by the regular means to adopt Madison's proposed amendment banning the various branches from usurping the roles of the other branches as the Court has continually and increasingly done after Taney stole the legislative role for the Court to promote slavery.   That he was doing that, making the Court an imperial power to deny millions and more into the future of their most basic rights is totally consistent with the schemes of dictators, tyrants and other gangsters.  He was a black robed thug, worse than the worst slaver,  the members of the Roberts Court majority are his spiritual and intellectual heirs.