THE OUTRAGEOUSNESS of the Taney Court majority in the Dred Scott decision declaring that no Black Person could be a citizen of the United States through the lie that that was the intent of "the framers" when they wrote the Constitution and reaffirming AND VASTLY EXTENDING the "rights" of slave-masters and entirely denying the rights of people living in free territories and states to make the laws that govern them and those visiting their states are rightfully the primary things noticed about it. The evils of things like their Court nullification of the Missouri Compromise in the real lives of real slaves and others, the purpose of the Taney Court's outrageous action, are the results of and substance of the danger of its usurpation, just as the nullification of the Voting Rights Act and its re-nationalization of the bodies of Women is in the neo-Taney Court under Roberts is the manifestation of their power grab. But the means through which they forced those ends, their origin, is in the Court's nullification of democracy and the common good.
In typing out this section I am a little afraid that a legalistic assertion by Boudin might be misunderstood. It was the assertion that, when the Taney majority decided to demote Nelson's original decision for the one Taney would author, sealing his infamous reputation for all time, the assertion that any court coming to the conclusions as to the Supreme Court's power to declare duly enacted laws unconstitutional, could rightfully decide on the legal person-hood of any group of people, excluding them permanently from citizenship seems outrageous. And if it was asserted that that right of the Supreme Court was real, it would be an unfortunate way of putting it, at bets.
It is an outrageous notion in normal meanings of talking about reality, about real life and real lives. Though not if you consider he was speaking merely in the terms that lawyers, judges and "justices" use to turn words on their heads, none of those more so than words such as "rights" when such rights are not those endowed equally by God but, in the law, are the artificial inventions of such things as Supreme Courts, which would better be considered a species of unequally granted privileges. "Justices" and, to an extent, other judges can create hypotheticals that have no real existence but which become, on their say so, powers that lead to real life results, from mild to disastrous effect. The powers given to judges and, even more so, such "justices" as our Constitution created are too dangerous to not question.
It's one of the reasons that such powers of creation by an unelected, unanswerable Court are so dangerous and that there should be some mechanism for rejecting rulings when they are dangerous and unjust, the theoretical means of doing that through amending the Constitution is inadequate and often impossible.
If it were possible to get rid of the expansive powers of governance that the Court gave itself, the problem might be far more manageable. We seldom consider just how artificial and arbitrary "the law" is and how much obvious wrong is accomplished through that artificiality and arbitrariness. No Court, no Constitution has a "right" to nullify the full person-hood of anyone, there was never any right by those truly vile and evil men who issued the Dred Scott decision to give what they said the power of the State or the slave-power they served in doing it. More about that later.
I am certain that Louis Boudin, in his real life, would never have considered anything they did in regard to declaring Black People or anyone else to be non-persons was rightfully done. This is an example of how legalistic thinking is an inadequate stand-in for reality.
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Louis Boudin notes that the two dissents from the Dred Scott decision were extraordinarily strong, in the case of McLean, unprecedented in its condemnation and rejection of the power grab the Taney majority had to do to come to their preferred, predetermined conclusion that would cement slavery into the law - no doubt they hoped permanently - end abolitionist agitation for its end, vastly expanding the powers of slave-holders to extend the evil institution and to override the laws of any states where they were in the minority and, so, could not win such privileges through the vote. The privileges that the Taney Court gave to slave owners is something that should be considered more.
The decision was that the lower court was right in its decision upon the merits of the case, but wrong in considering the case upon the merits - for the reason that Scott was not a citizen within the meaning of the U.S. Constitution, and could not, therefore, sue in the Federal courts. (19 How., 393) The disposition of the case was that the judgement for the defendant upon the merits should be reversed and the suit dismissed for want of jurisdiction. This, it will be noted, was contrary to the disposition which the Supreme Court had originally decided to make of the case, as shown by Judge Nelson's opinion, which was that the judgement be affirmed.
In order to appreciate the significance of this change, it should be remembered that it mattered not in the slightest either to Scott or to his master whether the judgment of the court below was affirmed or the suit dismissed. In either event Scott and his family remained slaves. But if the judgment of the court below had been affirmed, Chief Justice Taney's opinion would not have been written, and neither the question of the constitutionality of the Missouri Compromise nor the citizenship of free Negroes under the Constitution could have been touched upon. The change of the form of the judgment enabled the majority of the court to pass upon both of these questions. That the change of the form of judgment rightfully enabled the court to consider the question of citizenship of free Negroes must be conceded. But that even the change in the form of the judgment has rightfully enabled Chief Justice Taney and his associates to consider the constitutionality of the Missouri Compromise has been strenuously denied by justices McLean and Curtis in their dissenting opinions; and the question must be decided adversely to the Chief Justice and his associates of the majority, notwithstanding their laborious efforts to prove the contrary and despite their repeated protestations that they were passing upon the question only because they were compelled to do so by the requirements of the case. At the time, this was made as much a ground of attack upon the court, or even more so, at least among lawyers, as the actual decision of the constitutional questions involved. And from the present-day point of view, this is one of the two great questions involved in that justly celebrated case - the other being the historically revolutionary fact that a general law of Congress was, for the first time in the history of the country, actually declared unconstitutional in such a manner as to make an actual difference in the country.
Associate Justice Curtis was so positive in his opinion that the court had no right to examine the question on the merits after it had decided that the Federal courts had no jurisdiction in the matter, that he declared the opinion of the court, in so far as it touched on the constitutionality of the Missouri Compromise, an unwarranted assumption of authority, saying:
" I dissent, therefore, from that part of the opinion of the majority of the court, in which it is held that a person of African descent cannot be a citizen of the United States; and I regret I must go further and dissent both from what I deem their assumption of authority to examine the constitutionality of the Act of Congress commonly called the Missouri Compromise Act, and the grounds and conclusions announced in their opinion."
And Justice McLean went even further. He not only declared that he did not consider the part of the opinion which declared the Missouri Compromise unconstitutional good law, but he announced that he did not intend to be bound by it - an instance of rebellion on the part of a dissenting member of the United States Supreme Court not duplicated in the entire history of that court.
"In this case - says Justice McLean - a majority of the court have said that a slave may be by his master into a Territory of the United States, the same as a horse or any other kind of property. It is true, this was said by the court, as also many other things which are of no authority. Nothing that has been said by them,which has not a direct bearing on the jurisdiction of the court, against which they decided, can be considered as authority. I shall certainly not regard it as such."
I have, in thinking about this, been unable to get the two acts of the Court out of my mind, three acts, really. The first is the original assumption of powers not granted in the Constitution to assert things not said in the Constitution, effectively amending the Constitution by Supreme Court fiat. Those include
- creating their power to overturn legitimately passed and adopted federal laws
- the entirely dishonest assertions turning Black People into non-people under the law in perpetuity.
The second thing is that not that long after those outrageous acts, a later court used such powers and created "corporate persons" which, due to their potential to concentrate wealth and the possibility of immortality, etc. had vastly more power than the People who the founding document of the country said possessed rights given by God and not by Supreme Courts.
I don't doubt that that act of judicial, self-asserted god-hood is intimately related to the expanded powers that the Court, itself, god-hood that the Court has never seen fit to end since it has never formally overturned the Dred Scott decision, as they are now overturning Roe vs. Wade and a host of previous Supreme Court decisions in realms from Civil Rights and Voting Rights to environmental protection and others as the new-Taney Roberts Court tries to set us back to the 19th century, if not the antebellum period with legal slavery to the de facto slave days under Jim Crow. This time granting former slave states and those where Republican-fascism has the upper hand to disenfranchise not only People of Color but any white voters who could substitute for white abolitionists in 22nd century contexts. Working with Republican-fascist state governments, which are, in fact, the political descendants of the slave-power the Taney court worked with and for.
Until that self-given power is taken from the Supreme Court they will use it to prevent equality because if there is one thing clear about the history of the Supreme Court, it is seldom about equal justice under law and it never will be as long as they can hold themselves unanswerable and above any real moral or ethical code. The "justices" are selected from an already select group, atypical of the population at large, often through growing up in affluence, going to elite schools where their associates are, largely, affluent. They are members of a lucrative and privileged profession that has the ability to further seek privileges, many of them by serving, primarily, the rich and well connected and, if they go into an academic side-line, theorizing law on their behalf. The recent Biden appointment is the first nominee to the Supreme Court in its history who has worked as a public defender. That is an outrageous fact, in itself. The Supreme Court is not only the most undemocratic institution in government, it is also the most elite. Poor People will seldom if ever fare well under such a thing. The Warren Court was, only occasionally, atypical in that and it was when they were that drew the most fury from conservatives. And, as I've pointed out, the Warren Court's best decisions were not necessarily that wise in their effects.
As well as stripping the court of the most outrageous powers they have given themselves, ending life-membership on the Court is also essential. No one should be on it for more than a decade and those who choose to go on it should have a lifetime ban on any activity or association with any entity that had business before the court when they were members of it. As can be seen through the behavior of Thomas, Alito, Gorsuch, Barrett, etc. they don't even hide their schmoozing and accepting fees from such as they rule in favor of now. The Court is probably the most flagrantly corrupt part of the federal government as a given, the other branches, against their attempts to reform, further corrupted through the Court's "free speech-money-speech" line of rulings from Buckley v. Valeo down to the most dangerous and evil rulings about that in the Roberts Court.
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