I HAVE NOT MADE a thorough study identifying the hagiographic sanctimony that grew up around the Supreme Court as embodied in the reporting of it by someone like Nina Totenberg or that made-for-TV movie about the Brown v. Board decision or movies allegedly documenting Thurgood Marshall's career (anyone who mistakes any movie for an adequate substitute for actual history and honestly told biography is a sap) to test my suspicion that at least a good part of that is motivated by those with an interest in keeping the Supreme Court as the anti-democratic force for wealth and oligarchy and, yes, white supremacy that it has been in most of the years of its existence. And in the case of, especially, white supremacy, those scores of years far outnumber those when they didn't and the anti-democratic features of the Constitution have, as intended in the First Constitutional Convention, magnified the power of white supremacy through our history.
Of course anyone who has benefited from the majority of Supreme Court decisions over the roughly two-hundred thirty years it has been active has an enormous interest in keeping it from being reigned in to serve in stead of thwart equality and democracy. The wealthy, most of all, and being made more powerful by the inherent ability of great wealth to foment great corruption on its owners behalf, are those who have had the power to erect that false front of published, filmed, broadcast sanctimony and mythology about the Court. If the Koch brother's wet-dream of an oligarchic-controlled second Constitutional Convention came about, I am certain that the Supreme Court would not lose a bit of their power to abolish federal legislation through a fiat of a simple majority on that Court. In the large majority of cases I've ever known of, that power has been used to support the unequal distribution of wealth and the enhancement of the wealthy to get more wealth at the expense of workers and others and, certainly at the expense of sustaining of a livable environment and their in support of the wealthy's license to enjoy what they can get with their wealth. That's probably even more obvious in the actual record of the court than the fact that the Supreme Court has been, if anything, more supportive of white supremacy than the filibuster ruled Senate has been in its own sordid history. It is not unremarkable that the parts of the Federal government which are, by Constitutional provision and supporting adopted laws and internally constructed rules are the most corrupting of equality and, so, of real egalitarian democracy. I don't need to do a hell of a lot of historical and documentary research to come to that conclusion because it is the history of human kind, nothing but a real egalitarian democracy has ever not produced what was in line with governance of a neighborhood or area or state or empire by actual gangsters. Anything in the United States Constitution, from Supreme Court fiat or duly adopted laws that does not support equality and democracy is part of that long history of rule by gangsters, no matter how clean their hands and fingernails, no matter how credentialed by Ivy League or other elite training grounds of oligarchy, no matter how perfumed they are or are anointed by cultural or religious hierarchies or their own, internal professional establishments.
We The People have been gulled and suckered by the trappings of respectability and the phonied up history we have been taught but most of all by the theatrical, cinematic and other fictional presentation of American history. We are coerced and suckered into believing or going along with the conventional piety given to the Supreme Court, to the "traditions of the Senate"* and by the treatment of the presidency, when it is a Republican or even Republican-fascist who has been president. I am struck at how different the treatment of Joe Biden has been this week in regard to the attack on, not the United States BUT ON ANOTHER COUNTRY and the treatment of George W. Bush when his own administration, Condi Rice and others, ignored the warnings of the attack on 9 11 happened here. It's especially striking considering the known fact that the Republican-fascist Trump gave information about Israeli intelligence service to the Russians that may well have led to the king of its fabled intelligence services in just the way that caught the Netanyahu government so off-guard. That is typical of how the fabled "free-press" of the United States has acted for my entire lifetime. I made a reference to that in the exposure of first Senator John Kennedy and then President Kennedy in the ghost-writing of Profiles in Courage. You can compare that to the fact that virtually every book "written" by any of the Republican presidents is even more obviously ghost-written. Look how long it took for "The Art of the Deal" to be widely noted to have had no content written by the likely functionally illiterate Donald Trump.
It is one of the most disillusioning experiences of my life to have read the direct, unfiltered thinking of many thousands of supposedly educated Americans, from supposedly far left to far right to read how superficial their thinking on things is and how gullible they are outside of their narrow area of professional expertise. They almost all watch the movie instead of reading the book. They don't test ideas, they absorb them like a paper towel and the resulting belief might be persistent but it is about as strong as a wet Kleenex. And those are the ones who are supposed to be more aware of things. Our TV and now internet addled population are not capable of sustaining democracy, though the strongest pillar of democracy, the one which is absolutely essential to it, a sense of fairness, a notion that equality is right and that privilege is wrong is probably the most durable of all of the moral bases of democracy. It is certainly stronger than that other essential moral truth, that those with more must share with those without or their own surplus will rot their souls. I am certain that idea has been taught and educated out of the majority of those who have gone through a legal training, "the law," that is the secular law being quite a different thing than The Law of Moses or its equivalent in other moral traditions and, certainly, that of Jesus which is the most extravagantly egalitarian and leveling that I'm aware of. It being so novel that hardly any Christians have really tried to follow it.
I have relied on Louis Boudin so heavily because he did such good work over several decades assembling the evidence and the record, the citations and the rational analysis to support the radical reformation of the Supreme Court in one of its most corrupt periods. I know it is claimed that Clarence Thomas is the most corrupt Supreme Court "justice" in its history and he certainly is among the most corrupt, he was put there by two oligarchic families, that of the Bushes, among the most corrupt in the history of the Country, and of John Danforth whose ordination to the Episcopal priesthood doesn't seem to have resulted in him having anything like an informed conscience. But I don't think the corruption of Clarence Thomas is all that remarkable. As I have noted the most august of all Supreme Court "justices," John Marshall was a fast holder of Black People in slavery and his Supreme Court decisions always enhanced the institution of slavery and, so, always enhanced the wealth of him, his family and his friends at the expense of Black People held in slavery, Black People who were abducted into slavery and those who opposed the enslavement of human beings. I have no doubt that if he could Thomas would do the same if he thought it benefited him, he has been a stalwart of white supremacy during his entire sordid career in the law. He has certainly done something very similar to Women and would love to do the same to LGBTQ+ People. But in that he is merely typical of those who have sat on that Court, the only novelty is that he has done so while being Black just as Women who have sat on that court have ruled as they did while being female.
I was asked what I'd change, the first thing would be to make all Supreme Court members have a term of perhaps ten or twelve years. Lifetime appointments were stupidly assumed to guarantee that the "justices" of that Court would not be corrupted by self-interest if they had a guarantee of a lifetime job. That was as stupid as assuming that a king for life would be untempted by money making at another job. It is remarkable how stupid the founders and the early members of Congress were, considering they'd just overthrown being ruled by a monarch.
Another thing I would change is making removing a member of the court much easier, automatic if they were convicted of a felony or a serious breach of ethics.
Since they have usurped the power to nullify federal legislation I would make confirmation of any proposed "justice" be by both houses of Congress. Giving the power of confirmation to the most undemocratic of the elected parts of the Federal Government has been a guaranteed source of corruption. One sustained and enhanced by the Rehnquist and Roberts courts. I would, of course, favor an amendment either abolishing the Senate and expanding the House of Representatives or to make it democratic. I don't see any reason for there not to be Senatorial districts that surpass the boundaries of states in order to have a truly democratic Senate, if we are to retain it. I don't see any reason for the states with one or two House Districts to have two Senators while California, New York and Texas combined have fewer Senators than myriads of much smaller states, including the one I live in. I would, of course, also abolish that tool of corruption in the Executive, the Electoral College, used by crooks and gangsters and oligarchs (such as Jeb Bush) as well as the Republican-fascists of the Rehnquist Court to put the losers of elections in that ultimate seat of power. It is remarkable to me how little of the coverage of the attempts of Trump to steal the 2020 election ignore that it was by the manipulation of the baroque mechanism of the Electoral College that was such a proven vulnerability of American democracy.
I would also make it easier to impeach a president than it is now. If The People disagreed with the impeachment of an impeached president, they could express that disagreement in the next election. Though I think it should also be a requirement for being president that make having been duly convicted of a federal felony a certain disqualification. That our Constitution didn't make that a requirement proves that like all human framed institutions ours is certainly at least that far from perfection. I would change that immediately, encouraging members of the House and Senate to write an Amendment stating that to be adopted as soon as possible. That Trump could even theoretically be president while serving a prison term as the infamous, though less corrupt, James Michael Curley could have in Massachusetts is absurd.
I would also put it in the Constitution that it is a merely human made thing and will certainly need amendment. I would make it easier to amend the thing than the absurd super-majority of legislatures method now. State Legislatures in many of the states are almost guaranteed to be corrupted by our indigenous fascism, white supremacy and by the less expensive corruption of state governments by great wealth in the state or doing business there. That source of corruption is on full display in many states, North, South, East West and in the middle. There are states I don't think have proven they are safely considered states under local control. Wisconsin, Louisiana, Texas. . . Generally those have have been the states under the strongest influence of white supremacy. I am sorry to say many of them the most rural states. Not finding a way of either improving that situation of insulating the national governance in a more uniformly just manner is, in the short and long run, not an option.
By the way, to the objection of my use of the honest term "Republican-fascist," the Bush v Gore decision is answered by the necessity of using that if you want to be honest. Two Republican members of the Court in 2000 voted to let the votes be counted, it was five of them who anointed the loser, George W. Bush. I wouldn't feel right if I didn't make a distinction between those two and the five who corruptly voted to put Bush II in the presidency. Considering it was his regime which committed one of the most dangerous crimes any president in our history did, under the regency of Cheney, the invasion of Iraq. The huge numbers of dead, the regional catastrophe that has been is one of the most deadly of all American crimes, far larger in body counts and pain than the American wars in South East Asia when I was younger. Among the things that accomplished was the enhancement of the power of the theocratic gangsters in control of Iran who, in turn, sustain the gangsters who control Gaza. The history of Republican collusion with the Iranian theocratic-gangsters goes back to Reagan and his Iran Contra financing of terrorism in Central America, if not the well supported suspicion that his campaign made a deal with the theocrats to not release the Americans they held hostage, though you're certainly not hearing much of that in our "free press" this week as they blame Joe Biden for what happened there. That the same Republicans have been solidly promoting our indigenous form of fascism, white supremacy is not shocking, no more than it was under the Reagan-Bush I administrations that Clarence Thomas thrived and flourished. Fruit of the poison tree, the poison being permitted lies told and spread by the freest of "free presses."
And we're back to the ordure on the Court. Of course I would favor some means of removing their ability to overturn duly adopted federal legislation by the fiat of a simple majority of the "justices" on that court on the basis of its "unconstitutionality." RMJ suggested in a comment he made here a number of years ago making it necessary for such a conclusion to be unanimous before legislation could be nullified in that way. Which might be a good experiment to try if the necessity of the Court nullifying plainly unconstitutional legislation is legitimate. Though I would favor a thorough study of how other democracies which don't allow their Supreme Courts to do that to get better ideas of how to deal with that problem. I don't think legislatures or executives are any more reliable than the majority in elections are, though they're probably less unreliable to egalitarian democracy than our unelected, lifetime-appointed, nullifying Supreme Court is.
Anyone who has read much of what I wrote starting in the first weeks I've done this in 2006 would not remember that among other things I favor an amendment to the Bill of Rights stating that there is no such a thing as a right to lie and certainly no "right" for "the press" to lie or to spread lies. The corruption of the Supreme Court rests on the corruption through advertising of the Presidency and the Senate, in other words through unequal wealth, under the idiotic lie enabling interpretation of the First Amendment of the Constitution. Any reform of any of the government, no matter how temporarily successful will eventually fall to a regime under which lies can flourish as they have in the United States with the freest "press" and the most flagrantly lying in history. It is a truth taught by experience that for suckering People and leading them to make decisions and mere choices against their own good, lies are the most efficacious of all things. That our "founding fathers" and all of the generations of Supreme Court "justices" in our history have not made that a bedrock of the American government is proof of either their willful negligence or their improbable stupidity or their epic corrupt intent from the start. In the generations under the freest press, the most massively effective and available media in the history of human beings we are seeing the TV and media generated resurgence of fascism and Nazism which was merely temporarily suppressed in some places deputed to be democracies. We can see Russia go from Stalinism to the several iterations of decadent Marxism in its decline, bypassing a brief flirtation with something like democracy into a managed reestablishment of Stalinism as gangster fascism LARGELY THROUGH THE LIES TOLD BY MASS MEDIA. We have seen it in places like Italy, like Hungary, in various degrees all over the place.
"More speech" under the slogan of the ACLU type of "civil liberties" has given us that descent from the high point of American Democracy in the mid-1960s when LBJ got the Congress to adopt laws that should have been part of the Constitution, ensuring a right to vote and a protection of American democracy from white supremacist and political gerrymandering. The entire time the country has been descending into the resurgence of our indigenous form of fascism, white supremacy, white-supremacy in allegiance to the multi-millionares and billionaires, the Nixon-Goldwater "Southern strategy" which was never merely to attract racists in the formerly Confederate states, under the idiotic slogan of "more speech" and it is still headed that way, if not again under Trump then certainly under someone who is more palatable to more of the Republican quasi-fascists and Republican voting suckers.
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The worst thing that Ruth Bader Ginsburg did was to remain on the Supreme Court when she could have resigned in a timely manner which would have allowed Barack Obama to nominate her replacement and have their appointment be confirmed. I don't have to go through the reason that that was the worst thing she ever chose to do. Her excuse that she thought whoever he appointed would be to her right is certainly not invalidated by his nomination of Merrick Garland whose timidity in dealing with the Trump crimes as Joe Biden's Attorney General is enough to give any real Democrat pause about how he would have been as a "justice" on the Court. While I certainly liked Ginsburg and most of those rulings she participated in that I know about, as well as her dissents, she more than any other member of that Court in my lifetime has put me off of the kind of adulation that some members of that court have had, including from me.
I've frequently mentioned the absurd adulation of Oliver Wendell Holmes jr. who the more I read about and read his record in light of his faith in the most vicious aspects of natural selection, the more disturbingly dangerous he seems to me. I think a large part of his legendary status was due to fictitious presentations about him, a play and movie made from it in the 1930s no small part of that to those of us not initiated in legal lore, other things as fictitious or acceptable to those with a vested interest in his rulings the basis of theirs.
I've mentioned John Marshall whose character and judicial career can not honestly be separated from his racism, his wealth, his and the basis of both on his choice to become wealthy through slavery which has resonated down the years, he being one of those "dead judges" who still rule us in so many ways while even elected, living people don't. I think his dishonesty in inventing the Court power to nullify federal legislation as well as the dishonest characterization of the adoption of the Constitution, between his pretense in his official writing claiming it as a product of adoption by all of The People and his admission in his biography of Washington that it was a narrow thing - though he didn't note that it was hardly a result of a free and informed vote of The People - figures also into my decidedly negative view of him. I certainly don't trust a careful, detailed noticing lawyer who lies about such important things.
Another of those who I was educated to revere and who I agreed with on many issues but who I now see as largely having feet of clay, William O. Douglas, certainly figures into my anti-romantic view of the Supreme Court.
Even more so, of course, were the many truly awful members of that court over the centuries, so many of them being political hacks as legal hacks, many of them brought up in wealth, trained in elite universities - training grounds of oligarchy - and, as lawyers, first and foremost wanting to get along in the legal establishment while working for those with the greatest ability to pay them large fees and those billable hours. Just as lower court judges don't want to be overruled by those on higher courts, citing precedence (the mechanism for dead judges ruling us) lawyers don't want to be considered unreliable for those within and without the judicial hierarchy. There is always an incentive to lawyers to go along to get along, one of the things more than one ex-lawyer has expressed distaste for in why they didn't choose to travel on that particular gravy train.
The ease and comfort with which many of the "justices" I've respected in their collegial and personal friendships with those who regularly did such evil from the bench figures into it. That the idolized RBG's reported best buddy on the Court was Scalia, they took at least one lavish vacation together that I know of, also colors my view of the legal profession and the courts, right up to the top. To some extent I have the same opinion of them as I do gangster lawyers who make a lot of money doing the bidding of criminals and enabling their criminality. I don't respect such people or their profession, at all.
If being unromantic about that, looking at it with a cold eye instead of taking a romantically, amber-gelled view of it makes you uneasy, how much less easy should you be about the gutting of the Voting Rights Act, Roe v Wade, the refusal to stay executions (O'Connor's citing of court schedules in such cases makes me anticipate her going to hell for that and Bush v Gore), any past legislation or court rulings that produced justice and equality instead of injustice and privilege, even legislation and court rulings that sustain life and the environment we live on should we be? It's part of growing to real adulthood to abandon false romance and attractive lies. The difficulty and unpleasantness of that is probably why the United States has been gulled into the kind of unrealism that is the entire motive of Trumpian fascism. Even the fact that the very media that sustains that unreality has to note that his entire substance and power is the lies he and his supporters tell, gulling the susceptible with those lies has not made them face the truth of the Supreme Court freeing the very media that created the Trump most of his believers carry of him to lie with impunity. That is probably the most glaring flaw in the Constitution that there is, and yet we can't face the necessity of correcting that to protect anything good about the United States.
* I would bet my entire life's savings that almost all American's idiotic and ahistorical idea of the Senate filibuster was formed by that stupid Jimmy Stewart performance than any part of the reality of what that has meant in our country. Any good it has done is so far outweighed by the evil it has produced as to make that movie white-supremaicist propaganda. Our view of the mythological impeachment as a safety valve on presidential or Supreme Court "justice" corruption is only slightly more a fantasy.
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