MY PURPOSE in going over Louis Boudin's chapter on the actual, not legendary, origin of the current Judicial Power which the Roberts Court is using to destroy most of the progress made towards equal justice and equal rights and the protection of the environment and other hard won progress since the worst days of the 18th and 19th centuries and much of the 20th isn't primarily to expose the evils of the Taney court in the Dred Scott decision, worthy as doing that is. It is to attack the Republican-fascist power grab that has nullified the Voting Rights Act, the actual motivation of that was the recent ruling handed down by that most obvious contrast to the moral power and brilliance of Judge Ketanji Brown Jackson on display in the degrading spectacle of the Senate Judiciary Committee. In nothing from Boudin's case gone into so far is the sheer hypocrisy of the Roberts and earlier Courts in exercising their usurped power to nullify such laws shown as in the pretense that they are following the rules as laid out here yesterday and into today's portion of the book. Beginning with the completion of the last paragraph I started to give yesterday in which Boudin discusses the corrupt conception of that power in Taney's breaking the rules and crushing logic in order to get back at the adoption of the Missouri Compromise which obviously deeply offended his slave-holding sense of "justice" due to him and other slave holders on the basis of "property" rights, that any part of the Country should be freed from slavery.
But that was not permissible under our official theory of the Judicial Power. Under that theory the right of the courts to pass upon the constitutionality of the laws is derived from the necessity to pass judgment on the rights of individuals. It is a necessary corollary of that theory, that legislative acts may not be passed upon adversely by the courts except in cases of strict necessity; that is to say that the failure to pass upon them would result in a denial of some right to the individual litigant whose rights are adversely affected by the statute. This official theory of the Judicial Power has been recently restated by Mr. John W. Davis as President of the American Bar Association, August, 1923, in the following language.
"There is a curious misconception underlying much that is said and written on this subject as to the duties that the court is called upon to discharge. One might suppose from some of these outgivings that the court sat at the outer gate of Congress waiting to visit a jealous censorship of the laws that issue from that portal; and over them it had a general power of life and death, of approval or of veto. But august as are the functions of the court, surely they do not go one step beyond the administration of justice to individual litigants. As the court itself has said but yesterday (Commonwealth of Massachusetts . Mellon, June 4th, 1923):
"'We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only where the justification for some direct injury suffered or threatened, presenting a justifiable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise should stand in the way of the enforcement of a legal right.'
"Shall we say that when an American stands before the court demanding rights given to him by the supreme law of the land, the court shall be deaf to his appeal? Shall wrongs visited upon him by the illegal excesses of Congress or legislatures be less open to redress than those which he may suffer from court, or sheriffs, or military tyrants or civilian enemies? If this be so, if in any such case the ears of the court are to be closed against him, it is not the power of the court that has been reduced but the dearly bought rights of the citizen that is taken away." (48 American Bar Association Reports, 204)
It will be noted that Mr. Davis as well as the the United States Supreme Court concede that that august body has no general power of declaring acts of Congress unconstitutional and that the source of that power lies in the necessity of the case, as so eloquently stated by Mr. Davis, the necessity of doing justice to individuals and of securing to them their rights against the tyrannical acts of Congress and other legislatures. But the stream cannot rise above its source; the power cannot extend beyond the necessity that creates it. In fact not only concede, but vehemently assert. As it must, in order to escape the charge of usurpation.
I am going to ask you to consider that if the Court's power is based on the necessity of doing justice to individuals when the Congress violates their rights and legitimate freedoms guaranteed through and allegedly by the Constitution, if that is the only legitimate basis for the Supreme Court extra-constitutionally overturning a duly enacted law OUT OF NECESSITY, why does that not apply when state legislatures when they blatantly adopt laws to deprive Black People, other People of Color, age demographics, classes of any kind of People of their rights, using that "principle" to permit states run by Republican-fascists from discouraging their ability to vote?
The Roberts Court is using that usurped power exactly against the same People that Taney's decision attacked and dispossessed of their rights. In parts of his decision, indeed, he hampered the rights of the majority in free states to legislate on behalf of freedom in their states as they use that power to enable the legislation of the deprivation of rights. With time, I fully believe, he would have nullified the abolition of slavery as his passages permitting slavers to practice slavery when they entered free states would have been expanded farther. The Roberts Court upheld by inaction Texas's fugitive-womb act in a similar maneuver.
Why doesn't that principle which that power is supposedly based in and is seen as a necessity allow the Supreme Court to practice that power over state governments controlled by white supremacists or any power which draws legislative and senatorial districts and, Congressional districts with the purpose of depriving voters the right for their vote to count equally with those of other residents of the state through gerrymandering for that purpose?
The answer to that is that the Supreme Court is a law unto itself and its members can invent standards and dispose of them as easily as they do duly enacted laws of the Congress and, in fact, of entire passages in the very Constitution they claim they are protecting and defending and administering as law.
In Senator Sheldon Whitehouses' questioning of Judge Jackson yesterday, he noted that the Supreme Court routinely disposes of the Seventh Amendment rights of access to the courts by corporations on the basis of those bogus "contracts" that he points out that the customer or client or employee has no real ability to negotiate with the rich, powerful corporation or person. I noted how Taney used the Fifth Amendement to turn an entire race of People into non-persons and set up all white people as their superiors - whether or not any of the white people objected to that. The Supreme Court created "persons" out of corporations through the collusion of its members, its clerks and corporate lawyers in the 19th century. The Courts from the Sullivan Decision on have routinely enabled those corporations to have the ability to destroy someone's character and their lives through broadcast and published lies, especially when those people are Democrats or politically progressive on the basis of a ridiculous reading of the First Amendment, privileging the telling of lies over the telling of the truth (and if you don't think I was tempted to write a very long post on Judge Jackson's answer to Senator Klobuchar on press freedom, you haven't read much of what I've written). I doubt I will ever live to see the day when a Supreme Court makes that most basic necessity of democracy, to know the truth so it can make us free, a superior matter of First Amendment rights than the permission to lie that they created. The necessity of allowing for unintended or unconscious mistakes or just speaking out of ignorance that she reasonably mentioned has been expanded absurdly and unnecessarily into what we have today when FOX and the rest of the Republican-fascist or Republican fascist media can lie us into a Trump situation, leaving us at the non-mercy of billionaires, not only domestic but even foreign dictators who are intent on destroying OUR democracy.
When the Warren Court sought to use that power for better purposes, the results were not always or uniformly good. Some of their rulings became the tools of later courts in corrupting our country, JUST AS THE WORDS OF THE REVEREND MARTIN LUTHER KING JR. CAN COME OUT OF THE MOUTHS OF REPUBLICAN-FASCISTS TO PROMOTE WHITE SUPREMACY AS HAPPENED IN THE SENATE JUDICIARY COMMITTEE YESTERDAY. And, as the present court shows, there is no shame when they have no trouble gutting those better intended rulings on behalf of the white supremacists, the male supremacists, the fascists and the billionaires.
If they do that and have gotten away with it to the extent they have, over the entire period after the Dred Scott decision was used by Taney to grant the Court its present day imperial powers, there isn't anything you can imagine that is out of the question for corrupt "justices" selected with the dark money they have allowed to flourish in our political system to do on behalf of the enemies of those without billions and the power that it brings.
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