IN JUST ONE OF THE MOST outrageous things the Supreme Court has done in living memory, when a majority of Republicans on the Court stepped in to give the election of 2000 to George W. Bush, they knew that they were way outside of doing what should be in the power of the Supreme Court and with the most obvious of corrupt, partisan, and in the case of at least Sandra Day O'Connor, for personal-political reasons. She wanted to retire and wanted to make sure a Republican president would name her successor. In order to put a fig leaf on the shamelessness of their power-grab to put Bush II in office, they declared that they weren't setting any kind of precedent in doing so. Future Courts were not to use it as a basis for their arguments. To which future "justices" could be expected to ask, Who's going to stop me? Something which the Bush v. Gore majority certainly knew as they painted the foliage over their shamelessness.
To show that the matter of what is and what isn't precedent depending merely on the say-so of any of the unelected, unanswerable and in some cases quite corrupt "justices" consider this from Pro Publica:
Twenty years after the Supreme Court decision known as Bush v. Gore effectively decided a presidential election, it’s back on the country’s mind. President Donald Trump, who is lagging in polls amid a surge in COVID-19 cases and refuses to commit to leaving office quietly should his bid for reelection fail, has said he believes the Supreme Court will intervene in the upcoming election to hand him a second term. He cited that role to justify rushing the confirmation of Amy Coney Barrett, who was sworn in as a justice on Monday and could potentially break a 4-4 tie. Lawyers representing the president’s campaign and the Republican Party have taken to citing Bush v. Gore frequently in preelection court filings. And the case’s echoes are only underscored by the presence of three current justices — Chief Justice John Roberts, Barrett and Brett Kavanaugh — each of whom worked for the Republicans in the 2000 ballot recount battles in Florida that culminated in the historic Supreme Court decision.
Democrats got agitated this week when Kavanaugh, appointed by Trump in 2018, included a nearly page-long disquisition on Bush v. Gore in an opinion explaining his vote not to reinstate a six-day buffer after Election Day for mail-in ballots, which are expected to lean heavily Democratic, to arrive at election offices in Wisconsin. Then, only two days later, Democrats were cheered by the news that the court had let stand, at least for now, post-Election Day buffer periods in two other key swing states, Pennsylvania and North Carolina. The notion of a conservative court handing the presidency to Trump seemed that much more distant a prospect.
Keep that in mind as you read the next portion of Louis Boudin's study of just how corrupt the Dred Scott decision is, Taney's excuse of preventing a "bad precedence" for his outrageous power grab so as to reinforce his desired end and how the power that it gave birth to, which made Supreme Court "justices" such unanswerable powers in themselves so as to do things like Sandra Day O'Connor and Bret Kavanaugh do not only to duly passed laws of Congress but to previous claims of the Supreme Court in even majority decisions by members of their own corrupt faction. Under government by judiciary it's all merely arbitrary in its meaning, including the very Constitution which they claim to be upholding and protecting.
I will not comment further on this now because I'm being called away for the day, but there's a lot that could be said about it, starting with the first sentence, overlapping with the last post, proving that the Supreme Court is quite able to act on poor logic and untrue history, complete ignorance of mathematics and science, indifference to the inadequacy of their "factual basis" for coming to their announced conclusion which is generally a foregone conclusion that preceded them even hearing or deciding to take a case. That last point is especially important today when the Republican-fascists on the court do so much of their work through the infamous shadow docket where they let Republican-fascist judges, etc. do their work for them.
But however poor the logic, and however untrue the history, there was the resulting conclusion, joined in by the Chief Justice and a majority of the Court that the word "citizen" as used in the U. S. Constitution did not include free Negroes. And if that be so, the plea in abatement should have been sustained, and the case dismissed in the court below for want of jurisdiction. For if a free Negro cannot be a citizen, Dred Scott could not be a citizen of Missouri; and if he could not be a citizen of Missouri, there could not be the diversity of citizenship within the meaning of the Constitution, upon which Scott relied in resorting to the Federal courts. This legal conclusion led directly to the judgment actually rendered; namely, that the judgment of the court below, which was a judgment upon the merits was wrong, and that the suit should be dismissed for want of jurisdiction.
But if that be so - why did not the Supreme Court stop at this point? This is the gravamen of the complaint of the dissenting justices; and neither the Chief Justice, nor any of his associates, nor any of their defenders either then or since, has been able to furnish an excuse consistent with the theory upon which our courts proceed in the consideration of the constitutionality of the legislation. Judge Curtis puts the case thus:
"Having first decided that they were bound to consider the sufficiency of the plea to the jurisdiction of the Circuit Court, and having decided that this plea showed that the Circuit Court had not jurisdiction, and consequently that this is a case to which the judicial power of the United States did not extend, they have gone on to examine the merits of the case as they appeared on the trial before the court and jury, on the issues joined on the pleas in bar, and so have reached the question of the power of Congress to pass the Act of 1820 [The Missouri Compromise]. On so grave a subject as this, I feel obliged to say that, in my opinion, such an exertion of judicial power transcends the limits of authority of the court, as described by its repeated decisions, and, as I understand, acknowledged in this opinion by the majority of the court."
Answering this point, Chief Justice Taney says:
"But, before we proceed to examine this part of the case, (i.e. the case upon its merits) it may be proper to notice an objection taken to the judicial authority of this court to decide it; and it has been said, that as this court has decided against the jurisdiction of the Circuit Court on the plea in abatement, it has no right to examine any question presented by the exception, and that anything it may say upon that part of the case will be extrajudicial, and mere obiter dicta.
[1 : an incidental and collateral opinion that is uttered by a judge but is not binding 2 : an incidental remark or observation. Merriam Webster]
"This is a manifest mistake;' there can be no doubt as to the jurisdiction of this court to revise the judgment of the circuit court, and to reverse it for any error apparent on the record, whether it be the error of giving judgment in the case over which it had no jurisdiction, or any other material error; and this, too, whether there is a plea in abatement or not."
The Chief Justice then flounders around for a considerable space in trying to prove the correctness of the technical rule of procedure contended for by him, in the course of which he cites one or two cases which seem to support his contention. And he concludes this part of his opinion with the following statement:
"It is true that the result either way, by dismissal or by judgment for the defendant, makes very little, if any, difference in a pecuniary or personal point of view to either party. But the fact that the result would be very nearly the same to the parties in either form of judgment would not justify this court in sanctioning an error in the judgement which is patent upon the record, and which, if sanctioned might be drawn into precedent and lead to serious mischief and injustice in some future suit."
If this means anything, it is this: That while from a pecuniary or personal point of view it may make no difference to the parties involved which form the judgment in this case takes, it is of great general interest that the error of the lower court be corrected, lest it "be drawn into precedent." We shall discuss later on the question whether the reason given the Chief Justice applies to a case in which the procedure adopted would make it necessary to declare a law of Congress unconstitutional. For the present let us assume with the Chief Justice that an error appearing in the record, which might serve as a precedent in future cases, warrants the consideration upon the merits of a case of which the court had no jurisdiction. If this rule be sound, that would manifestly warrant the consideration of the case upon the merits only if the merits of the case had been erroneously decided below. But in the opinion of Chief Justice Taney and the majority of the Court the decision upon the merits in the lower court was correct.
But it has recently been suggested by a very able writer that the further consideration of the case, if not necessary, was at least proper because such consideration furnished additional ground for the conclusion already reached by the Chief Justice, namely, that the court had no jurisdiction. Whether or not such a reason is a sufficient excuse for declaring a law unconstitutional will be discussed later. For the present let us see what results follow. This requires a consideration of the second half of Chief Justice Taney's opinion. The point there made is that after considering the case on the merits, he is forced to the conclusion that Dred scott was still a slave, and therefore, the court below had no jurisdiction. This leads the writer just referred to to the conclusion that from the Chief Justices own point of view he was justified in considering the case upon the merits, and in the course of that consideration to declare the Missouri Compromise Act unconstitutional.
This is the first part of some quite involved discussions, it's tempting to try to summarize them or skip them but they are absolutely essential to laying out just how corrupt the birth of the judicial power that today's Court governs by fiat is. The powers so taken and expanded by the court have seldom escaped the quality of corruption that is inherited from the Taney Court.
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