I REALLY DID MEAN IT when I said the Republican-fascist, Federalist-fascist Society majority on the Roberts Court are really not that bright. As I was doing the reading and thinking and writing in the series I just sort of concluded, I started wondering if perhaps sooner than later the unitary-executive pipe-dream which the six fascists on the court put into the real instead of that make-believe paper constitution, the real constitution that doesn't say what the words on paper say but whatever a majority on the present court says it says, might force the issue of the illegitimacy of their power to do that IN THE WORST POSSIBLE WAY.
Louis Boudin pointed out that once the Marshall Court had invented the Marbury power, the power the Supreme Court invented to give it the power to nullify duly adopted federal laws, they don't seem to have dared to use it in any significant way instead of in the already moot issue of Marbury's commission as a justice in the District of Columbia.
Boudin intelligently noted that if they had tried that during the Jefferson administration he would certainly have not allowed them to do it unchallenged and that if that had happened, he'd have bet on Jefferson coming out on top. I would too. And if not him then Madison.
They'd certainly not have tried it in any significant way during the term of Andrew Jackson who showed he was quite prepared to defy courts. Jackson was a truly terrible president in many ways, even if he did further the Jeffersonian revolution discussed in the series.
It is a fact that Lincoln, having vigorously opposed that power before he became president after its first significant use by the Taney Court in Dred Scott, openly defied orders of the Court and that, if Taney had not, thankfully, died before he issued the Emancipation Proclamation, that when the court case Taney was planning to nullify it had happened, there would have been a decisive show-down when the Court tried to do that and I would expect Lincoln would have refused to acknowledge the legitimacy of it.
I think he would have even if the "justices" on the Taney court had come up with some other legal babble to do it short of repeating their use of the Marbury power to do it - once the rules are out the window, they can do the lawyerly-liarly thing and call anything what they want to and call that lie "judicial."
I think it's a distinct danger, now that the Roberts Court has made their Ivy League law class exercise of imagining up the United States as a Republican-fascist state under a Republican-fascist president, one who will deliver to the billionaires, millionaires, lesser members of the investor class such as they and their families are, their hearts desire, that it might be Trump, instead of a Lincoln, a Jefferson or even a Theodore Roosevelt who denies the power of the Court to do even the legitimate things that the Court should have the power to do.
And if not Trump then whoever the likes of Elon Musk or Peter Thiel or (as facilitated by the Roberts Court in Citizens United) a Putin or Saudi billionaire installs will certainly do it if the Court tries to reign them in in a way they don't like.
I think as the rot that the Roberts Court has installed into the real constitution ripens, the constitution that rules us as a result of it being whatever they say it is, as that rot progresses, it is all but inevitable that we either rip that power from the Court and reform the form of government we have to take into account the hard lessons we have had in the more than two centuries under the one on paper and the one that the "justices" make up new whenever a majority flips or we will suffer the ever worsening consequences.
We will eventually have to learn the hard lessons of our real history or we will be destroyed by our failure.
As it is, the "justices" have made it part of the real constitution, the real "bill of rights" that we are to never learn the hard lessons of history, I blame the more extravagant irresponsibilities in the idolized line of "first amendment" free-speech-press rulings for that. That it was the "progressives" and "liberals" on the court who invented the "right to lie" may serve just as well as an example of what happens when the "justices" have no restraint in their ability to nullify legislation while holding their professional habits of considering lies to be as good as the truth, depending on what those get you. The idea that there can be a "right" to do something that is immoral is so stupid that it's something you might expect an Ivy League lawyer to come up with.
Everyone bemoans the lies of Trump, of Vance, of Republicans, of FOX Lies, etc. Everyone at the very least implies the truth that those are the lies that got us both Trump I and Trump II. But no one even admits there's something that can be done about that because, you know "the first amendment." Well, we either get over that or we continue to repeat what got us here and we get more of it in perpetuity. And there's nothing stupider in government than putting up with that.
Consider the consequences if it's a Trump or a Vance who nullifies the Marbury power instead of a democrat or a Democratic Congress. I think that's an alternative we will eventually face in the worst possible way.
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