Taney Lives On As Members Of The Roberts Court Revive the Non Personhood Of People of Color, Women etc. Under The Constitution

 

TANEY may have been in the minority on the Court in the Warren years, when the line of cases starting with Baker vs Carr were decided against racial gerrymandering.  But he is a member of the current majority, the 6 Republican-fascist votes ripping up the progress made, paid for in the blood and lives of those who struggled and died for equality.  And not only in the line of cases from Baker vs Carr (which Earl Warren counted as the most important cases of his time as Chief Justice) but the Voting Rights Act passed when the Congress and President Johnson did what the Roberts Court are saying should be properly done as they get ready to make women's bodies the property of the state, when they codified a ban on gerrymandering in the Voting Rights Act.   The almost sixty-year old, upheld, law that they crushed on February 7th in Merrill vs. Milligan.  An action, by his own court, which the initiator of that crushing, John Roberts, found to be something he didn't want his name attached to.  Perhaps he begins to understand that the new Republican-fascist majority on the Court will likely lead to his name going down with Taney's with all of the infamy and dishonor he deserves.  

But, as Louis Boudin noted, the powers that Roger Taney created, power to do that in the Dred Scott decision lives on.  In the overwhelming majority of its applications to do evil and enforce inequality and injustice, in a few rare cases,  really only much during the Warren years, sometimes for the better, even then sometimes with results the Warren Court majority probably wouldn't have liked if they had the foresight to see what would be done with their words and decisions. 

I'll start here with the case that Roberts voted with the majority to begin the dismantling of that codification in the Voting Rights Act, Rucho v. Common Cause.  I found this article which quotes one of the few lawyers who was involved in arguing Baker vs. Carr:

Anyone still wondering what President Trump has accomplished need only look to the Supreme Court’s announcement last Thursday saying it is helpless to fix cases of partisan gerrymandering now.

With the strokes of their five pens, Trump’s new conservative majority on the high court swept away 58 years of judicial history flowing from the Baker v. Carr decision of 1962. That case established the “one person, one vote” standard and, importantly, opened the door to proper federal court review of legislative redistricting.

Previously the courts had regarded partisan gerrymandering as a “political” matter outside the purview of the judiciary. On that basis, judges sidestepped taking up gerrymandering cases, in which some legislatures re-drew districts to protect themselves in future elections. (Baker v. Carr was soon applied to congressional districts also.)

Last week, the current court said pretty much the opposite: That partisan gerrymandering cases – where a majority political party has disadvantaged the other in drawing new district lines – are now off-limits going forward.

Constitutional scholars will parse all this in the days ahead, but this morning it feels very much like the current Supreme Court has turned back the nation’s clock by about six decades. . .

. . .  On Friday, I caught up with Nashville attorney Harris Gilbert, one of the few surviving members of the original legal team in Baker v. Carr. Now 87, he helped me understand what has been lost in light of Thursday’s ruling.

“It’s wide open now,” Gilbert told me. “The ‘one person, one vote’ standard is dead for a while. It may come back when the Democrats have a majority on the court.”

Not if people can't vote for Democrats due to the Supreme Court enabled gerrymandering and voter suppression which the Roberts Court is also enabling. 

What might be believed to be won through Supreme Court Power would seem to be lost a lot more easily than it was won in the first place.  I will refrain from going at length into what the Warren Court did in the Sullivan Decision, effectively overturning laws on libel and slander, and its place in lying us into Nixon, Reagan, two Bushes and Trump and a Republican-fascist majority in the Senate under Mitch McConnell who participated in the nullification of the presidency of the first Black President and his appointment to the Court.   A nation that is propagandized through lies will not be one which reliably elects those who favor equality and democracy and the Supreme Court has given the mass media and billionaires a right to lie us into fascism.

The first thing that I thought of when I read about that decision penned by the putrid Brett Kavanugh - what motivated me to go through Boudin's book -  was the testimony that the late Barbara Jordan gave in opposition to the nomination of Robert Bork to the Supreme Court.  And reading through it I decided to let her talk about her experience both under the, now, Roberts rules permitting partisan and racial gerrymandering and the all too brief period when the 14th Amendment was read to produce one-person-one-vote.  Note that I have edited the transcript as I found it online for clarity but I have not changed or deleted any words.

Thank you very much, Mr. Chairman.I am delighted that you gave me the chance to come and give my thoughts on your task. I am opposed to the confirmation of Robert Bork to the Supreme Court of the United States. My opposition is not a knee-jerk reaction of followership to the people or organizations whose views I respect. 

My opposition is a result of thinking about this matter with some care, of reading the White House position paper in support of Robert Bork, of reading the Judiciary Committee,your committee's point by point response to that position paper, discussing the matter with friends and people I respect,reading some of Judge Bork's writings. 

But more than any of that, my opposition to this nomination is really a result of living 51 years as a black American born in the South and determined to beheard by the majority community. That really is the primary basis for my opposition to this nomination.I concede Judge Bork's scholarship and intellect and its quality,and there is no need for us to debate that.

But more is required. When you experience the frustrations of being in a minority position and watching the foreclosure of your last appeal and then suddenly you are rescued by the Supreme Court of the United States.  Mr. Chairman, that is tantamount to being born again.  

I had that experience. The year was 1962. I had graduated from Boston University Law School in 1959. I went back to Houston, Texas, with my law degree in hand, and the Democrats around there said, in 1962, "Your work with us since you have been here makes us think you ought to run for the Texas House of Representatives."  I said, "But I have no money to run." They said, "We will loan you the money." And so on a borrowed $500, I filed for the election to the Texas House of Representatives. I ran. I lost. But I got 46,000 votes.  I was undaunted. I said I will try that again because I think my qualifications are what this community needs. 

So in 1964, I ran again for membership in the House of Representatives of the State of Texas. I lost. But I got 64,000 votes.  Why could I not win?  I will tell you why. The Texas legislature was so malapportioned that just a handful of people were electing a majority of the legislature. I was dispirited. I was trying to play by the rules, and the rules were not fair. 

But something happened. A decision was handed down: Baker v. Carr. That decision said this:The complainant's allegations of a denial of equal protection present a justiciable constitutional cause of action. The right asserted is within the judicial protection of the 14th amendment.   

Following Baker v. Carr, a series of cases were decided. The Texas legislature was required, mandated by the Supreme Court to reapportion itself. It reapportioned. So in 1966, I ran again. The third time. This time in one of those newly created State senatorial districts I won.  My political career got started. Do you know what Judge Bork says about those cases on reapportionment?  He has disagreed with the principle of one person, one vote, many times.  In his confirmation hearings in 1973, this is what he said: "I think one man, one vote, was too much of a strait-jacket." And then he continued: "I do not think there is a theoretical basis for it."  

My word. "I do not think there is a theoretical basis for it." Maybe not, gentlemen. Maybe there is no theoretical basis for one person, one vote, but I will tell you this much. There is a commonsense, natural, rational basis for all votes counting equally.  We once had a poll tax in Texas. That poll tax was used to keep people from voting. The Supreme Court said it was wrong, outlawed it. Outlawed it.  Robert Bork said the case was wrongfully decided. 

You have talked much about the right of privacy—Griswold to Roe, and others. Judge Bork has his theory—if you cannot find that right within the letter of the Constitution, explicitly, it is not there. It does not exist. I believe that the presence of that point of view on the Supreme Court of the United States places at risk individual rights. 

It is a risk we should not afford. We do not have to.  I like the idea that the Supreme Court of the United States is the last bulwark of protection for our freedoms. Would the membership of Judge Bork alter that altogether? I do not know whether that is the case, but that is not the question. I do not want to see the argument made, that there is no right to privacy on the Court. I do not want that argument made, and the only way to prevent its being made is to deny Judge Bork membership on the Court. I do not know whether you have read in your papers Mr. Justice Brandeis' dissenting opinion in the Olmstead case. If you did, you would read that Justice Brandeis made it very clear, that there is indeed a right of privacy, that it is really explicit, and that it is bottomed in the fourth and fifth amendments. Justice Brandeis makes that clear.The presence of a Judge Bork on the Supreme Court places that in jeopardy.

I was listening and watching these hearings, and I heard Judge Bork say he was not sure what the ninth amendment meant. That there was a lot of confusion surrounding the ninth amendment. I certainly do not pretend to be able to say what the ninth amendment means, but I can say that if you hold the view which is espoused by Robert Bork, there is a built-in inconsistency in the Constitution, and we know that every word of the Constitution is to be given some effect.

We understand that right. The Declaration of Independence preceded the Constitution, and the Declaration of Independence speaks of inalienable rights, endowed by our Creator with inalienable rights, among them life, liberty, pursuit of happiness.  So they are not the only ones — life, liberty, pursuit. There are others, and those others should be given effect.

Now you know what Judge Bork would say. "Listen. I approve of the results of the reapportionment cases.  I approve of the out come in many of those cases, but my problem with the whole matter is that I don't like the reasoning which was used."

Well, let's look at that for a moment. A Borkian view. "Don't like the reasoning that was used.  Approve of the outcome. What you really ought to do is let the democratically elected bodies make these decisions.  That is the proper way to proceed."  Gentlemen, when I hear that, my eyes glaze over. If that were the case, I would right now be running my 11th unsuccessful race for the Texas House of Representatives.

I cannot abide that.  

I know you have talked about the Saturday Night Massacre, and I know that there has been much discussion about whether what Judge Bork did in firing Archibald Cox was legal or illegal.  There is a court decision that says it was illegal, and then Senator Hatch would say, "Oh, but that decision has been set aside and it is a nullity."All I can say to you is that on the day, and at the time that Robert Bork fired Archibald Cox, there were rules and regulations in place, viable, alive, with the force and effect of law. They,  we,  reviolated, and, to me, that means the Solicitor General acted illegally.  To me, that is not very difficult to understand. The Office of Special Prosecutor and Independent Counsel is under attack right now.  For you to confirm Robert Bork to the Supreme Court I think sends the wrong message.  I believe that such a confirmation would indicate that it is all right with you for a person to sit on the Supreme Court who has utter disdain for the Office of Special Prosecutor.  I do not think that is the message you want to send. Constitutionalism is a part of the cultural glue of this country. The Supreme Court should be the ballast to keep the ship of state from making wide, unanticipated swings. A new Justice should help us stay the course, not abort the course.  

I want to conclude by reading a quote from a professor at the Yale Law School, at the time this was written, Charles Black. It is a note which he wrote in the Yale Law Journal, 1970. I think it is important. If a President should desire, and if chance should give him the opportunity to change entirely the Supreme Court of the United States, he may do that, and nothing would stop him except the United States Senate. The question is, for the Senate, whether the nominee holds such views, that when transposed into judicial decisions,they are bad for the country.  You have every right to look into the judicial philosophy of Robert Bork, because Mr. Black said at the conclusion of that article: "In a world that knows that a man, a nominee's fitness for office, in this kind of a world, his social philosophy shapes his judicial behavior." You must inquire into whether that philosophy affects his fitness for office.You have a satisfactory basis for voting against this nominee, and I urge you to do that.

There you have it, Robert Bork's remedy for evil through legislation instead of Supreme Court litigation, perhaps the biggest lie of all the numerous lies he told in his evasive, dishonest, oh-so-typical in that, Supreme Court nomination testimony.  And in the Taney created power of the Supreme Court to overturn that very legislation as the Roberts Court did in the two recent gerrymandering cases proves that that remedy is a lie that Republican-fascists on the Supreme Court will mow down by a five to four or a six to three vote no matter what they lied about decided cases of long standing which people depend on as a protection of not only their most basic rights as citizens, the right to vote and to have their vote matter, but even to the ownership of their very bodies as they are doing in their dismantling of Roe vs. Wade.  

The proof of Louis Boudin's contention that it was the Dred Scott decision, overturning the 1820 Missouri Compromise and abolishing the personhood of those decended from Africans under the Constitution is all over the Roberts Court's actions, including their progressive march backwards toward the Dred Scott holdings, they prove every day that it was never overturned by the Civil War or even by the "Civil War Amendments" as can be seen by the Supreme Court blessed de facto slavery and non-personhood of Jim Crow, anointed with Supreme Court approval in the Plessy vs Ferguson, complete with enforcement by terror and lynching.  With those sacred amendments in place and clear in their legislative intent. That is where this court is headed back to no matter what words they might lie into a fig leaf to cover their shame. 

I can't let the "originalism" of Bork pass without comment, or the "textualism" that some of the current Republican-fascists on the court replace that word with.   I'll point out the fact that the very power which they use to annul duly enacted legislation and to do so much else that reinforces inequality and injustice appears no where in the original text or the text as amended.   The whole thing is a fabric of lies.  I have often railed over the Supreme Court created "right" to lie, in the "free speech" "free press" cases starting with that atypically well intentioned, frequently quite clueless Warren Court.   It shouldn't have surprised me considering the very means with which they did that is based on a meta-lie, the one created in Dred Scott.   I think it's time people face that fact about the Court, its holdings and traditions and consider seriously the need to radically change that.