THE CLAIM THAT Bush v. Gore isn't actually in the same class of rulings as Dred Scott may be true, I'm not a legal technician, the taxonomy of legal categories isn't really that important to my goal and I think those categories are probably somewhat fictitious, just as its claim that it was never to be cited as precedence is.
I classed it with Dred Scott and the rulings of the Roberts Court overturning The Voting Rights Act and Roe v. Wade on the basis of its outrageous exercise of dishonestly asserted judicial power on behalf of the interests of the group to which the "justices" making the ruling belonged to. If you want to create a new class for those outrageous rulings by the imperial Court that can include different species of actions by those legal hacks on the Court, why not consider it done?
The attacks by the white supremacists + one psychopath on the Roberts Court destroyed an Act that, for the first time in our history, enforced the right of Black People and other subjected People to cast a vote and to have that vote have some chance of counting - redoing in a beginning way what the entire history of slavery under the Constitution, culminating in Dred Scott and, after even the Emancipation Proclamation and the Civil War Amendments, Jim Crow continued for most of the history of this country.
As I asserted, if the Civil War hadn't happened and the radicals in the immediate post-war Congress had not passed the 13th, 14th and 15th Amendments, I have absolutely no doubt that the Taney Court and its successor (with members, no doubt, heavily weighted with slave-power supporters and slave-holders) would have done what I said they would have just as the Roberts Court is building its neo-American apartheid country on previous rulings, some made with clearly malignant intent, some using material that the Warren Court gave them when they tried to, for an enormous change, wield that Taney created power for better purposes. That attempt is largely being overturned by subsequent courts, which shows you how unreliable that is for making lasting change. I have no doubt that the Roberts Court in its reimposition of American apartheid is only getting started and subsequent courts will, if history aids them, go even farther as the jr. Senator from Indiana certainly seems to envision.
As to what I'd replace it with? I would certainly look at some of the modern Constitutions written in the 20th and maybe 21st centuries, countries who didn't emulate our foetid old 18th century rag (the Honorable John Quincy Adams notably referred to it as "a menstruous rag" during the abolitionist period, so I have no qualms about calling it one). Madison seemed to grow quite disillusioned with much of it in his last years from what I've read of his writing from that period. No doubt as the florid 19th century corruption under it flourished, it wasn't exactly what he had in mind. Though as a life-long slave holder, he was certainly happy to have that ultimate corruption flourish under it, as Jefferson was after he got over his egalitarian impulses when he was somewhat of a better man.
Update Hate Two: I'm not prepared to say that any of the categories of various actions of courts and, especially the Supreme Court have any meaning in a time and Court where the meanings of words can mean whatever they "justices" of the majority, Republican-fascist side choose them to mean. The creation of the court-power that is exercised to amend and abolish passages in the Constitution, what they really do, was guaranteed to produce that. Instead of the lie of Constitutional stability that the "originalists" and "textualists" claim is a product of their ideologies (what I think is a clearer word that the Honorable Sheldon Whitehouse called a "judicial philosophy") what they have produced is total fluidity in which no one can reliably depend on the meaning of that document or duly passed laws or their durability.
I agree with Whitehouse about the dangers of imposing a "philosophy" on the job of being on the Court. I think of the desire of Oliver Wendell Holmes jr. to impose a "scientific: reading on it from his cynical, inhuman reading of late 19th and early 20th century biology is what produced Buck vs. Bell. I think of the idiotic newer desire to impose recent claims of scientistic reductionism in the form of "neuro-law" and shudder to think of the consequences of that imposition of ideology on the thing.
I think what's needed is for both scientists to have a more thorough training in philosophy to understand its implications for their work and lawyers to have more training in the dangers of adopting ideologies because their work inevitably is too complex to start out with one of those or to pretend to depend on one.
NOT that I think the likes of Scalia or Coney Barrett are honest about their motives in announcing their ideologies, what they want and wanted was more in line with the reimposition of inequality and special privileges for the rich, the powerful and the white as "rights." I would bet that a rigorous review of their work would prove that their "philosophy" was more a thing of convenience when it could "explain" their decision but would be nowhere in evidence when they couldn't square their decision with their announced "philosophy."
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