I AM CERTAINLY not the only person to notice that the Taney court had, on its own usurped power, amended the Constitution, asserting a number of things, including that it rightly had the power to do that. While checking on some of Louis Boudin's later citations and quotations, I found this from a book-length response to the Dred Scott decision by one of the most eminent of the statesman-lawyers of the 19th century, Thomas H. Benton in which he said that was exactly what they did. I include more of the passage than Louis Boudin did because what Benton said would result from the Supreme Court doing what it had,
- inserting it directly into political matters that, formerly, had been considered outside of the legitimate function of the Court - in that I would assert it is among the things that enabled or encouraged the Rehnquist Court to install George W. Bush, one of the worst presidents in our history in one of the most outrageous abuses of illegitimate authority in American history,
- making the Court and its actions a direct topic of partisan and electoral politics, including not only the constituents of the court but in those who selected and confirmed them - leading to, among other things, the Louis Powell, now Mitch McConnell Court Capture scheme financed by wealthy oligarchs,
- leading those outraged by the outrageous actions of all future judges, which would be rightly assumed to have been made for extra-judicial reasons to contemplate things like adding positions of judges and "justices" and circuits to dilute the sitting members of the courts and the Supreme Court to overturn their political rulings.
Read what he wrote in 1857 and see how much of it sounds familiar. The exact place that supports my contention, I've put in red.
In assuming to decide these questions, - (Constitutionality of the Missouri Compromise and the self-extension of the Constitution to Territories,) - it is believed the Court committed two great errors: first in the assumption to try such questions; secondly, in deciding them as they did. And it is certain that the decisions are contrary to the uniform action of all the departments of government - one of them for thirty-six years; the other for seventy years; and in their effects upon each are equivalent to an alteration of the Constitution, by inserting new clauses in it, which could not have been put in it at the time that instrument was made, nor at any time since, nor now.
The Missouri Compromise act was a "political enactment," made by the political power, for reasons founded in national policy, enlarged and liberal, of which it was the proper judge and which was not reversed afterwards by judicial interpretation of words and phrases.
Doubtless the Court was actuated by the most laudable of motives in undertaking, while settling an individual controversy, to pass from the private rights of an individual to the public rights of the whole body of the people; and, in endeavoring to settle, by a judicial decision, a political question which engrosses and distracts the country; but the undertaking was beyond its competency, both legally and potentially. It had no right to decide - no means to enforce the decision - no machinery to carry it into effect - no penalties of fines or jails to enforce it and the event has corresponded with these inabilities. Far from settling the question, the opinion itself has become a new question, more virulent than the former! has become the very watchword of the parties! has gone into party creeds and platforms - bringing the Court itself into the political field - and condemning all future appointments of federal judges, (and the elections of those who make the appointments, and of those who can multiply judges by creating new districts and circuits,) to the test of these decisions. This being the case, and the evil now actually upon us, there is no resource but to face it - to face this new question - examining its foundations - show its errors; and to rely upon reason and intelligence to work out a save deliverance of the country.
He noted that the Supreme Court doesn't have the competence to perform a legislative function, there are too few members, their "fact finding" (which is often a joke and quite often contra-factual in its assertion) inadequate as compared to Congress and, the "justices" being laws unto themselves and appointed for life (Benton's citation of the impeachment provision to remove the worst of them is a pious myth that has never been used for a Supreme Court member) they are free to follow the most lazy, inadequate, malfeasant and thoroughly dishonest course with no realistic inhibition to stop them. Over and over again "justices" have pretended to cite things like "Congressional intent" while their conclusions are clearly at odds with the legislative record and, sometimes, even the stated opposition to their position by members of Congress who wrote and got bills made into law.
Yet "justices" from the thoroughly dishonest and even corrupt, Alito, Gorsuch, Barrett, to the piously deluded, Breyer, pretend the Supreme Court is above partisan and even political actions when their own record, their own decisions demonstrate beyond any shadow of any doubt that that is a lie.
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In going through this one of the things I continually find myself doing is being unable to imagine how an alternative to the present, non-Constitutional power grabbed power exercise by the Supreme Court would work. That is certainly due to having lived under and come to expect the way the Court acts under the unrepealed Dred Scott decision my entire life. Yet other countries don't or hadn't allowed their Supreme Courts to usurp such powers for themselves and some of them have healthier democracies than ours has become, largely due to actions of the present and past Supreme Courts. I directly attribute the reign of lies that brought us to Trump and the disasters he sowed, the disaster of George W. Bush, oligarachy run amok, etc. to the actions of the U.S. Supreme Court not only as it is laid out, written in the Constitution but as expanded extra-constitutionally by those unanswerable "justices."
As I said earlier in this series going through Louis Boudin, any large and consequential change in this is bound to be opposed by lawyers and law professors because it would render much of their expertise moot or, at least, in need of serious post-doc study. But there is no reason for the country as a whole to tolerate the status quo AS ITS EVILS MULTIPLY AT AN EVER MORE RAPID RATE AS GOVERNMENT BY JUDICIARY CONTINUES. The Court itself has done much to make the evils embedded into the Constitution by the anti-democratic force among the "founders" and the First Congress who hastily wrote and adopted the Bill of Rights worse. A run amok Court that literally makes of the Constitution what it wants to is capable of doing with it exactly what Thomas H. Benton noted the Taney Court did in the Dred Scott decision.
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