Something which I doubt would much bother the Republican-fascists of the Roberts-Alito Court or the Bush v. Gore five who already showed us a little preview of what we can expect in the future going forward as we are headed

In finishing his discussion of Supreme Court decisions that illustrate the irrational danger of government by judiciary, right after going into the Supreme Court contradicting its own reasoning in the Lochner case and Holden v. Hardy, Louis Boudin said:

We are not now concerned with the question whether their conclusion was correct or erroneous.  What concerns us is the fact that the court assumed the distinctively legislative function of deciding whether circumstances existed which required remedial legislation.  This position is opposed to that which the court took in Munn v. Illinois.  Even in that comparatively late case the Supreme Court still held that such an inquiry was part of the functions of the legislature, and none of the court's business.  It said:  "For our purposes we must assume that if a state of facts could exist that would justify such legislation, it actually did exist when the statute under consideration was passed."  In other words;  if the legislature has the power to limit the hours of labor when the health of the employees demands it, the court must presume that the health of the employees in the particular industry which the legislature has undertaken so to regulate does in fact demand such a limitation of hours.  Neither Judge Lurton, nor anybody else, will contend that if this rule had been allowed in Locnher v. New York the bakery law would have been declared unconstitutional.  It was declared unconstitutional because the rull still recognized in Munn v. Illinois was repudiated.

I will point out that since the Court is not supposed to be a legislative body and it does not function as one - I doubt any of the Supreme Court members would ever want to go through the work of fact finding, listening to constituents and the public, etc. that good legislating requires and the consequences of ignoring that-  it is not equipped either by law nor by its own choice to make the kinds of distinctions that responsible legislators equip themselves to make.  Of course, there is nothing to protect We The People from legislators who act like the worst of the Supreme Court members have and do EXCEPT TO VOTE IN BETTER ONES.  That is assuming that the legislators of a malignant party have not gerrymandered and vote-rigged and otherwise made sure that there will be no actual expression of a majority of voters so as to prevent better ones taking office, something which Republicans and now Republican-fascist members of the Rehnquist and Roberts-Alito Courts have worked hand-in-glove with their party and oligarch funded efforts to make sure happens.

A Supreme Court such as ours, under its usurpation of legislative and executive functions,is free to apply rules on its mere whim and when it will not apply them, also on its mere whim.   The governing Supreme Court  recreates in itself a number of the accusations made in the Declaration of Independence against George III and the British government in ignoring the legislatures of the States.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. . . 

Reading the Declaration of Independence, in view of the self-created, usurped powers of the Supreme Court and considering how that reads in view of that is an exercise I would highly recommend.   IN BOTH CASES THE WRONG BEING PROTESTED AND ACTED ON WAS THE NULLIFICATION AND VETO AGAINST THE COLONIAL LEGISLATURES ON A WHIMSICAL OR MORE HONESTLY STATED, OLIGARCHY PROFITING BASIS. There is no representation of the Voters on the Supreme Court any more than there was in the American colonies in the British Government under George III, they don't have to represent anyone but those they choose to serve. They won't be voted out if they don't.

Boudin continued:

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 Muller v. 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.

I will bet you anything that not a single member of that Supreme Court had ever done any kind of laundry and probably had never seen where their clothes were cleaned, I'm sure they had some kind of affluent male notion about the job that had no real knowledge of how hard it was then to work in a laundry for the long hours in question.  Considering how many of the laundries in many places were staffed by Asian and other immigrants in that period, it would probably be safe to expect there was also a racial component to the imaginations of the affluent, white men who made the decision probably on nothing but the products of their imaginations and their more reliable knowledge of who stood to benefit from their ruling.  I can also assure you that in the United States any kind of reform legislation of that sort would have succeed only on the basis of the kind of constituent information and fact finding that would probably have had to sway a majority of white, male legislators who were more inclined to ignore or diminish the crisis in the lives of the women who worked dangerously long hours in laundries.  I will also point out that Oregon was hardly a bastion of racial equality then, probably even in that period.  In the coming decades it would see a great deal of support for the Ku Klux Klan.  It already had a history of vandalism, attacks on and burning down Asian owned laundries.  I expect that only very strong supporting evidence could get such legislation passed there as it would have taken in most states A STEEP UP HILL THAT ALL REAL REFORM STILL HAS TO CLIMB.  The Court certainly brushed aside a lot of evidence supporting the reform legislation when they did what they did. Just as today's Roberts-Alito Court does in everything from Women's ownership and control of their own bodies (in case you believe we've really gotten past that) to climate change as the world dries out, roasts and burns around them, safe in their alabaster chambers untouched by morning and untouched by noon. Though there is nothing meek about the members of the Supreme Court, nor are they indifferent to politics as in Emily Dickenson's poem.  The Supremes should be required to get out more and find out how the hoi polloi really live and the world really is.  Not that even that would move those hard hearts.  But the law is not a power unto itself, it cannot perpetually ignore reality though Supreme Court and others pretend they can, a consequence of their not having to win another term though the example of states with elected judiciaries is no great advertisement for an elected judiciary, either.  The safest practice is to regulate them and term limit them and prevent the kind of scheme Lewis Powell hatched and Mitch McConnell consummated.

Approval of the decision in Muller v. Oregon is 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 with  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 conclusions 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 the Constitution, but men with a knowledge of life and plenty of common sense.  These editors meekly accepted 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?

The answer to those last questions is that other than President Franklin Roosevelt's attempt to expand the court so he could save the Country from the Great Depression, in the hagiographic nonsense that was raised about the Court and this or that member of it - often a complete falsification of the member of the court as popular entertainment, these dangerous things were not fixed then and they have gotten far worse than during Louis Boudin's time.  The brief and atypical periods on the court when Earl Warren and Warren Burger were the chief justices are imagined to represent the history of that Court when it has probably been, in total, the most corrupt branch of it.  It is certainly that, today.

The United States Constitutional system has long showed the defects and weaknesses built into it, many of them intentionally such as the slavery-enabling features not all of which went with the Civil War amendments and other such things, some intentionally such as the anti-democratic constitution of the Senate and what we now know with no possible doubt the extremely dangerous Electoral College based in the anti-democratic inequality built in through apportionment of extra power to smaller population states.  On top of that a whole slew of Supreme Court and lower court contradictions, vulnerabilities, overt and covert corruptions and just plain stupid or, it turns out, badly thought out though well intended innovations allegedly based in the normal exercise of its designated powers.  Corporate person-hood, one of the worst of those, not even the insertion of a Supreme Court "justice" but a clerk of the court who was obviously corrupt during one of the more corrupt periods of our political life.  

I don't favor an elected judiciary, the example of states that elect their Supreme Court and other judges shows how open that is to corruption.  I favor more stringent tests for nominations, even taking the sole decision in that away from the executive and sharing it between the elected branches.  I favor making all of them, all of the members of Congress, the President and the members of the Supreme Court vulnerable to removal and prosecution for the kind of corruption, obvious, covert, petty and flagrant that are practiced by all of them today but for none of them more openly and brazenly than the Supreme Court which is now staffed by the recipients of slush-funded appointments and approvals through an overtly oligarchic clique pushing overtly fascist theories of government on American Democracy. The stability allegedly provided for our governance by the Constitution has, like I suspect all constitutions are vulnerable to, been thoroughly altered and gamed by lawyers, law professors, sleazy judicial clerks, sleazy and sometimes less than perfectly foresighted judges and "justices" and through the accumulation of professional and cultural acculturation and habituation to that gradual and, at times, sudden shift from the original document.  As Boudin shows, that change was often warned against, condemned and openly defied by some of the greatest lawyer-politicians and statesmen of their time, only to have the machine of the legal and judicial system move on in that direction through the steering or just momentum that it had built up.  The crises of my lifetime, the criminal regime of Nixon, the corrupt pardoning of him by Ford, the once all-time crime spree presidency of Ronald Reagan - the actual number of indictments and convictions of members of it once breathing in its record setting - the corrupt Bush I who had to pardon some of the senior members of his administration to avoid them throwing him under the bus, so vulnerable to conviction as he was - the outrageous decades long hunting of the Clintons by the Gingrich era Congress with the collusion of Republican Special Prosecutors who found no crime but created, with the help of the media,  the effectively universal belief that they were criminals, something so important in creating the culmination of this march to fascism.  Then there was the Supreme Court-Jeb Bush installation of the loser of the 2000 election in the Bush v. Gore outrage, the Bush II-Cheney regime, 9-11, the longest war in US history which Joe Biden is blamed for finally ending, the trumped up-lie sold and totally disastrous invasion of Iraq, the reverberations of which are still killing tens and hundreds of thousands, and then the Trump regime which was the most dangerous and criminal of them all in terms of domestic politics, though nothing in our history trumps the Supreme Court created Bush II regime for all time death tole and disaster.  

The Supreme Court, whether through their ill-fated and quite stupidly unrealistic idealism in the Warren era that allowed the media to lie with impunity against Democratic politicians - something vitally important in producing Nixon and the rest of the Republican holders of power just cited,especially the media creation, Trump - to the Bush v. Gore Rehnquist court which did something that no Supreme Court ever should have been considered empowered to do, has been at the center of all of that anti-egalitarian, anti-democratic shift to despotism.  That cannot go unchanged forever.  The warnings that started with Jefferson, continued through Lincoln and joined in by even some of the most informed and foresighted judges in our history cannot go unacted on forever because either we change it now, or the really empowered despots of the future will and they will not change it to favor egalitarian democracy.  Something which I doubt would much bother the Republican-fascists of the Roberts-Alito Court or the Bush v. Gore five who already showed us a little preview of what we can expect in the future going forward as we are headed.

I will have a post-script to this series which I will post separately.