There is now no such "plain and simple" rules of interpretation as Judge Lurton claims; on the contrary, there are now practically no rules at all.

The rule that the violation of the Constitution must be "clear, palpable, and free from all doubt" had to disappear with the other restraining rules when the express provisions of the Constitution were disregarded as a test of constitutionality of legislation and the vague "spirit of our institutions" was substituted therefore. . .

I will break in here to consider what was lost when the Supreme Court gave itself these powers to "legislate from the bench" something I remember Republicans of the 1960s till about 1981, the year of Reagan's ascendancy, lamenting and despising but which they now not only favor but have ratfucked the membership of the Court to practice.  And, considering the dishonest claims of "originalism" of "textualism" which are the MO of the likes of Alito and Gorsuch and Coney Barrett, how their very practice is a later introduction, not through amendment of the document they pretend to use to impose their will on the United States, not by the only prescribed methods of amending that document found inside it, but through the mere whim of the members of the Court.  

Anyone who pretends to not see the danger in that practice, whether by their side doing it or by their side, thereby, facilitating a future Supreme Court majority that they may not like, is as big a liar as the members of the present court were when, under oath, they claimed to believe Roe v. Wade was long established law so as to give the likes of Susan Collins covering for voting in favor of them.  

As Louis Boudin proves, those lies we have grown so habituated to were basic, serious and obvious as they were proclaimed in Supreme Court decisions that had the force of legitimately adopted legislation.

. . . The "spirit of the Constitution,"  the "spirit of our institutions" and the "principles of our government," which are now used as criteria of constitutionality, are in themselves empty phrases, in to which not only each generation but each individual puts a different content, according go his own philosophical, political and social principles.  What Justice Iredell said of "the principles of natural justice" is equally true of these newer principles:  "The ablest and purest men have differed on the subject."  In this realm nothing can be said to be "free from doubt."  Uniformity of opinion, except among close political associates and kindred philosophical spirits, is here extremely unlikely.  And so we have lived to see the power which was originally supposed to be used only in cases "clear, palpable and free from all doubt," used almost regularly by divided courts, often by bare majorities.  And the uninitiated wonder; how is that a provision, of which one judge emphatically asserts that he is able to find no trace whatever in the Constitution, is asserted by another, and with equal emphasis, to be clearly and plainly written therein?

The reading of a few important recent decisions, such as Lochner v. New York, Adair v. United States,  People v. Williams and Ives v South Buffalo Railway Company, will sufficiently illustrate the points just made.

These same cases will also show that we have very effectually disposed of the last safeguard against the establishment of a judicial veto upon any and all acts of our legislative assemblies by discarding the rules that the courts must limit their inquiry to the question of the existence of the power which the legislature has undertaken to exercise, and that where the power exists its exercise is open to the judicial sphere of influence.  The courts now openly review the use made by the legislature of its conceded powers, thus arrogating to themselves a distinctly legislative function.

The result of all these changes must be summed up in a sentence.  There is now no such "plain and simple" rules of interpretation as Judge Lurton claims;  on the contrary, there are now practically no rules at all.  Each case is supposed to stand "on its own merits,"  which, translated into ordinary English, simply means that each law is declared "constitutional" or "unconstitutional" according to the opinion the judges entertain as to its wisdom. . .

I will break in here to say that Louis Boudin even then and much, much more so now, is attributing motives that are far too high to most the members of the Court.  I doubt many of them much care as to the "wisdom" of their rulings or the results, what they care about is a. favoring their wealthy families, friends, colleagues and patrons, b. favoring the Republican Party and its empowerment even against the will of the majority of qualified American voters, c. having their own way - which accounts for a. and b. as well as other things.  I doubt their recent rulings favoring dirty air and global warming were considered in terms of its short or long term wisdom.  They were thinking of the money of those who favored that ruling, either in their own families investments, those of their patrons and donors to Republican-fascist candidates and the propaganda campaigns for the appointment of future Republican-fascists to the Supreme Court to perpetuate oligarchic government by the judiciary.

. . . This is another reason for the fact that almost all important constitutional cases are now decided by divided courts.  Since there are no longer any set rules by which the judges can be guided, since they are left to determine the propriety and wisdom of laws according to the canons of politics and statesmanship, they naturally exhibit those differences of opinion which we expect to find in legislative bodies.

This leads our Supreme Court as well as our other courts, into the position - anomalous and absurd for a court, though perfectly proper for a legislature - of deciding in different  ways cases similar in principle.  Thus in the case of Holden v. Hardy the Supreme Court decided, by a vote of six to three, that a law limiting the hours of labor in mines was constitutional;  but in Lochner v. New York it decided, by a vote of five to four, that a law limiting the hours of labor in bakeries was unconstitutional.  In principle the two cases are of course identical.

Under the old rules of interpretation, which limited judicial inquiry to the matter of legislative competence, these two cases must have been decided in the same way.  Either both laws were constitutional or they were both unconstitutional.  In the earlier case, Holden v. Hardy, the Supreme Court decided that the state legislature had the power to pass a law limiting the hours of work in any industry when it - the legislature - came to the conclusion that longer hours would endanger the health of those employed in that industry.  It followed as an irresistible conclusion that the bakery law was constitutional, the legislature enacting it having come to the conclusion that it was necessary for the protection of the health of those working in bakeries.  The decision in Lochner v. New York, declaring that law unconstitutional, startled the legal profession and evoked vigorous protest from many constitutional lawyers.  They could not understand it.  They accused the Supreme Court of inconsistency.  But the truth is that the court had discarded the old rules of constitutional interpretation and had adopted an entirely different theory.  An examination of the dissenting opinion in the case, when it was before the New York Court of Appeals, and of the prevailing opinion in the United States Supreme Court, clearly shows this shifting of ground.  Under the new rule of interpretation, it is no longer a question whether the legislature had the power to limit the hours of labor, when it determines that such a limitation is necessary for the health of those engaged in a particular industry;  the question is whether that power has been wisely used.  The power of the legislature is conceded, but its discretion is reviewed and is determined to have been improperly exercised.  The legislature has found that work in a bakery beyond a certain number of hours is dangerous to health.  But, says the court, we don't consider it so.  And it was their judgment on the matter of the healthfulness of work in a bakery, not their judgment on the constitutional power of the legislature, that led five out of the nine judges to declare the law unconstitutional.  

I believe the substance, the result of that old case, Lochner, is about to be the next wrecking ball the Roberts-Alito court heaves at more than a century and a quarter of progress in many areas of rights, not only against workers and others held in wage slavery, it is certainly something that the six Republican-fascist appointees to that court would have as an important goal, their goal is to destroy the entire framework of decent life for the many in favor of the filthy profits of the few.  That was the way of courts for most of our history, the Supreme Court as much as any. With some golden exceptions, the higher the judge in the hierarchy, the less likely they will have any more democratic motives, and often the ones who do really don't have much of a realistic grasp of the consequences of their rulings. I have a feeling that judges with a realistic grasp of the lives of most Americans don't get elevated as often as the ones with monied buddies and customers.

That to achieve their results they had to do what it is so impossible to do in the anti-democratic Senate, drastically change the rules, and that they did it by fiat of five "justices" who were not even elected to the extent that  a minority of Senators "representing" a tiny fraction of the countries residents can be said to be, is a demonstration as to allowing unelected, lifetime-appointed, for all realistic purposes impossible to remove despots to have the kind of power we have, as a country, stupidly allowed the Supreme Court to create for itself and for them to exercise and have retained it out of benefiting the rich and powerful and those of them in control of the media through the ignorant habits of thought gradually imposed on the rest of us.  

As touched on yesterday, incomprehensible legal language and mysterious jargon-filled judicial mock-theology aided that effort.   Especially the adoption of words and phrases in show biz, TV, movies, alleged news shows and popular novels which carry on that trade in constitutional and Supreme Court piety. I won't go into Jimmy Carter's efforts to make lawyers and bureaucrats to write in comprehensible English, among the earliest things overturned by Reagan as evidence of the importance of incomprehensible language to the conning of America other than to mention it here. "Due process?"  

I noted that was just part of their pseudo-religious apparatus in the legal profession. The Supreme Court is regularly in the same position as the old and more recent adventest millennialist cults, in changing the hard and fast claims to suit themselves.  Only, unlike when those cults' end-times don't arrive on schedule,  we, as right-thinking Americans are supposed to pretend the sanctified Supremes haven't done what they have repeatedly done as they do it, changing the meanings of words to change goal posts.  We're supposed to pretend nothing's wrong as they use their self-created, self-expanded, rule-shifting powers to drive us into disasters, catastrophes and death.  Look at their recent rulings on climate change and guns and Women's bodies if you think that's hyperbole.

When I first started going into this, someone came up with an interesting idea that legislation should only be overturned by Supreme Court fiat on the basis of a unanimous court holding it was unconstitutional on the same ground. That would, perhaps, go some distance in correcting the absurd situation Boudin described in the disparity in judgement over Lochner and Holden v. Hardy.  That might, usually, be an improvement on the present situation but given the Federalist-fascist, billionaire financed, Lewis Powell schemed, Mitch McConnell packing of the Supreme Court, I don't think even that is a very safe situation.  Packing a court with nine rigged, Federalist-fascist picked, advertisement peddled despots isn't that much harder than getting five or seven or even eight of them.  Look at how shameless the court-packing of the current Roberts-Alito court was in its clear and corrupt intent, Susan Collins as much a part of that as Ted Cruz or Rand Paul even as she lies about how surprised and disappointed she was in Kavanaugh's blatant lying that everyone knew was a lie even as she posed behind it to disguise her naked shame to explain voting for him.

I don't think anything but a complete refusal of Democrats in the Congress and Presidency to continue to go along with government by judiciary will do it. And they should choose one of the most unpopular of their decisions to make that declaration over.  Roe would be such a one, there are many others. That course of action is certainly not without its dangers, what Democratic Congresses and Presidents do, Republicans will.  Even when Republicans do it the media and pundits will declare Democrats doing far less is taken as a forbidden scandal even as they will accept Republicans doing it.  The media is well over ninety-percent in on it.  But the present status quo is certainly a known danger as opposed to those theoretical ones.  

I don't think doing anything short of overturning the Dred Scott precedent of the Court vetoing duly enacted Federal legislation and state legislation which is within the powers of state legislatures - WHEN THOSE DON'T NEGATE FEDERAL CONSTITUTIONALLY RECOGNIZED RIGHTS - from the bench will protect us from these long ingrained and expanded on habits.  

I don't trust the Court or any unelected, lifetime appointees who will never be removed by impeachment to have much of any power of that kind.  I certainly don't trust them when the perennially corrupt, anti-democratic Senate is the confirming body.  Since it is legislation of both houses which they feel free to veto, taking on the role of the president, I think both of the houses of the Congress should be required to confirm or reject them.  Perhaps Congress should be empowered with the ability to overturn Supreme Court vetoes as they can overturn presidential vetoes. Which will cause new problems, perhaps but that's already the case.  The Senate is incompetent and, as the anti-democratic branch should never have had that sole discretion, it should certainly not be entrusted with it when the slave-power invented filibuster is among its unchangeable rules.  And removing incompetent, corrupt, unethical or criminal Supreme Court members should be far easier than it is to remove a president, there are nine of them and they aren't required for national emergencies.  They should be removable for violations of ethics rules and laws, they should be subject to both as they clearly are not now, they are laws unto themselves which is intolerable for any kind of real democracy.

And we should end, now and forever, the lie that they are "justices" when they are so reliable in producing injustice.  They should from now on be "members of the Supreme Court" or "Supreme Court members."  I almost felt restrained to forego the vulgar pun on that which can be counted on being said considering how most of them are and have been real dicks.  But like many a vulgar pun, there's some justice in calling them that because such they are. Gorsuch and Coney Barrett as much as Kavanaugh, Thomas and Alito. Roberts is more a schmuck.  Kick them off the plinth.