I AM TORN between the intellectual honesty of attributing the arguments I'm going to make about destroying the powers of the Supreme Court as those have been usurped originally by the Marshall Court in 1803, the Marbury decision which is the source of most if not all of the most significant Supreme Court originated corruption of democracy in the United States, and merely presenting the arguments without citation of the man who made those arguments in their most exigent of historical contexts and with voluminous citations by the likes of Abraham Lincoln who had argued much of the case against that in responding to the first truly significant and rightly abhorred use of that power in the Dred Scott decision.
The reason is that in his younger days Louis Boudin had been something of a Marxist theoretician, though, from the evidence I can see of his career, he steadily became less impressed with Marxism the more he saw it in practice after the Russian Revolution and the immediate suppression and crimes of the budding Soviet system.
I think he likely found that as American and other Marxist parties and their scribblers and thinkers went on, he became ever less impressed with that as, in fact, I've found I have the more of that same record has become available to read in extensive completeness online. Of course, given the use of such a history by America's fascists, the white supremacists, the Republican (now overtly Republican-fascist) Party and oligarchy favoring individuals and groups, I expect that his Marxist identity will be used against his scholarship (which is of a quality you seldom find, these days) his reasoning (also, too) and his citations will be shoved aside by those who favor the tyranny of the Supreme Court which has been thwarting equality since the time of Marshall and democracy, as well, and the rights of minority groups, Women, workers, LGBTQ+, and even voters right to cast a vote and have the representation which was the point of the "majoritarian government" which the Constitution was explicitly claimed to set up to start with. *
The Roberts Court, the only real current competition the Taney Court has for the title of "Most Evil" through what it has imposed on the Country - the previous and somewhat less competition that the Rehnquist Court got runner-up for by, among other things, deciding the 2000 election in favor of the loser - have made newly topical the issues that Boudin raised in his original 1911 article and in his magisterial two-volume work of the same name (alas, though published more than ninety-five years ago, it is not under public domain). How relevant that is can be seen in the opening paragraphs of his earlier article.
THE most momentous question before the people of this country today is undoubtedly the question of the limits of the power of the judiciary to annul legislation for alleged unconstitutionality. When Mr. Roosevelt opened his campaign for the so-called " new nationalism," he was forced to make what was called by his opponents " an attack upon the judiciary." The general election that followed was largely fought, at least in the eastern part of the country, on the issue thus made; and the fight against the new nationalism has since been largely a fight for the preservation of the powers of the judiciary as they exist today.
The fact that Mr. Roosevelt denied the allegation, claiming to have made no " attack " upon the judiciary, does not change the situation. It is of course true that Mr. Roosevelt did not attack the judiciary as an institution: he merely criticised some of the decisions of one of our courts.
But that court is the highest court in the land. And criticism of courts must be admitted to stand on an entirely different footing from criticism of other public functionaries, notably from that directed against legislative assemblies.
Legislators-and, within certain circumscribed limits, executives-are vested with discretion to act as the public interest may, in their opinion, from time to time require. Criticism of their public acts does not necessarily involve anything more than the expression of a different opinion as to what is best calculated to promote the public good under certain circumstances.
It is different with judges. They are not supposed to be vested with any discretion to act as they see fit in the interest of the public welfare. They are supposed to find the law written down in former decisions or in statutes, in the making of which they have no share, and to apply the law which they find to the facts of the cases presented to them, irrespective of their opinion of its wisdom or unwisdom.
Ordinarily, therefore, criticism of the judgments of a court implies a reflection upon either the legal knowledge or the integrity of its members.
Call me skeptical, but I doubt the "museum" "AI" Teddy Roosevelt with whom Trump "conversed" and seems to have believed in Trump's ignorance and senility to be the man, himself, was programmed to go after the Supreme Court as the real one did. Such is how the Republican-fascist telling of history is, as much when it's a conservative white man who's been dead for more than a century as it is for Black and other minority figures who died within recent memory.
I will have a lot more to say about this last sentence, especially in regard to the mania the present court has for overturning decisions made by previous Supreme Court majorities, even unanimous decisions aren't immune from their overturning. Even in cases where a candidate declared themselves to hold a decision was "decided law" as they lied through their teeth to get confirmation, they have had no hesitation to overturn such decisions - so much for "legal knowledge" of Supreme Court "justices" when it comes to their knowledge of the law and even the Constitution which they claim to hold the last word on.
There is no question as to the integrity of a large number of the members of the Supreme Court, at least when it comes to noting their complete lack of integrity. That's a certainly made claim of the Roberts Court and certainly in previous courts. The rare landmark rulings in which the Courts have not favored the wealthy, the powerful, the white-male, the employer, the oppressor are notable BECAUSE THEY ARE SURPRISING. Their typical product isn't surprising in that regard
I would, again, as I always will, remind you that the original hero of those who worship the Court, that the major holder and profiting from slavers, John Marshall never found a single time in favor of either an enslaved Person or, indeed, I believe I'm correct, a free Black Person who could be enslaved even as he and many other members of that court directly profited from the slavery that they routinely enhanced and protected. That was true even in the case of a man who illegally imported slaves into the United States in the period AFTER THE CONGRESS HAD BANNED THAT IMPORTATION AS THE ORIGINAL CONSTITUTION EXPLICITLY GAVE THEM THE POWER TO DO AFTER TWENTY YEARS UNDER THAT DOCUMENT.
Far from the amber-filtered reverence and pious, soft-spoken, fawning presentation of the Supreme Court in flawless, academic English, an honest presentation of that court would show it has been the most corrupt branch of the government even as it has presented its corruption in the most anodyne of legal language bullshitese aiming to confuse and soothe the public as to the true nature of what they're getting up to to favor slave-holders, the de facto slave-power in the period of American apartheid after de jure emancipation, to favor wage-slavers of the working class, Women, voter of the other party (a specialty of Courts starting with the period when the Federalists faced that first and tragically partial revolution as the slave holding Jefferson (and Madison) took office - the very origin of the Marbury decision and on to this year when the Roberts New Taney majority legalized racial gerrymandering in the guise of partisan gerrymandering against Democrats.
The only guarantee of anything like integrity that comes with the holder of any public office is an effective possibility or likelihood of getting fired by the voters (not that that is any firm guarantee) but in the case of the Supreme Court that inhibition of corruption is removed by the Constitution and the fact that the bar to impeachment is so high it has never been reached at that level of "justices" or the president. The farther away from the possibility of effective firing by the voters, the more certain the corruption of the office and the Supreme Court has proven, over and over again throughout its history that that guarantee of corruption is most confirmed by the reality of what that court has become.
Our courts are, however, in a different position-or, at least, it is claimed that they are in a different position-with respect to their power to declare legislation void for alleged unconstitutionality. It is claimed by those who criticise certain of the decisions of our courts on that subject that in dealing with constitutional questions our courts exercise legislative powers under the form of judicial decrees, and that the canons of criticism which usually apply to acts of legislatures are therefore applicable to our courts with respect to such decisions. It is this that Mr. Roosevelt implied, when he said, in his Denver speech:**
The courts occupy a position of importance in our government such as they occupy in no other government, because, instead of dealing only with the rights of one man face to face with his fellow-men, as is the case in other governments, they here pass upon the fundamental governmental rights of the people as exercised through their legislative and executive officers.
I may go through Louis Boudin's century old article at least as far as I get. I admit that Trump and the Republican-fascists' war in Iran, Israel's genocides and expansion, American politics, law, the goddamned Court, the drought, the heat wave, the pervasive evil have got me down.
I've found one of the ways to get through depression is to mount a project and I can't think of one more timely than to revive the knowledge of the objections of some of our most respectable persons, Lincoln, foremost, to the most corrupt branch of the government and its usurpations of power on behalf of the like of Trumpian fascism.
The power that the Court gave itself in 1803 to nullify duly enacted laws - in that case provisions of the Court Act, which was written by a legislator, Oliver Ellsworth, who, unlike his successor as Chief Justice, John Marshall had been a member of the Constitutional Convention - he is believed to have authored the 3rd article dealing with the judiciary and the Supreme Court - and a host of other framers of the Constitution who adopted it as federal law including Madison - was not again exercised by the Supreme Court until the rightly infamous Taney Court used it to nullify key provisions of the Missouri Compromise which had stood as federal law for more than thirty years - and which had restricted the spread of slavery and which the Taney Court used to, in effect, nullify free state bans on slavery within their jurisdictions. I can't think of any significant use of it by a Supreme Court which was not evil. I've been compiling a list and intend that to become part of this series. As the fact that the rate at which those Marbury cases seems to be accelerating, not becoming in any way rarer as the Roberts Court tyrannizes us and through its empowering of Trumpian fascism in the executive and legislative branches.
*Louis Boudin, in his response to criticism by a socialist in regard to his 1911 article made this point:
It should be remember in this connection that the Quarterly is not only a magazine of high standing in the scientific world, but is extremely conservative, and would not print any attack on our judiciary from a militant Socialist, unless it could be backed up by uncontrovertible proof. This subject of the judiciary is an extremely ticklish one with the intellectuals of our ruling class. Most of our magazines therefore absolutely refuse to publish any “opinion” such as mine. They will publish anything you like, including proposed amendments, etc., but not the “opinion” that the Constitution does not give the judiciary any such power as is here discussed. And the more evidence one gives in support of such an “opinion,” the worse. And even our purely scientific publications fight shy of the subject, and when they do print such “opinions,” they will only publish them if they are so worded that absolutely nothing of any historical value can be presented against them by any reactionary. It is therefore clear that had there been any such “consensus of views” as Ghent speaks of, my “opinion” would never have found expression on the pages of the Political Science Quarterly.
The matter cannot even be considered fairly debatable among historians. It is true that our reactionaries try to instil a contrary belief to the ignorant. But that is not debate, that is intentional misrepresentation, except when it proceeds from the ignorant. There are many things that are being “debated” by some people in the pulpit and in the press, but that does not mean that they are “debatable” to us. Mr. Justice Lurton, of the United States Supreme Court, has recently attempted to uphold the opinion now advocated by Mr. Ghent (I sincerely hope that Comrade [Viktor] Berger disagrees with his secretary on this proposition). I disposed of him in the article published in the Political Science Quarterly mentioned above. But I was not debating with Mr. Justice Lurton: it was too much like taking candy from a baby.
I will note that I have written respectfully of Viktor Berger who did what almost no other person to the left of Theodore Roosevelt who wasn't a Democrat ever managed to do, win an election and hold public office, honorably. I haven't researched any dispute between him and Louis Boudin, though it's exactly the kind of thing I'd have found worth pursuing through the now easily available and extensive record of the American left as was published in the period before the iron curtain of copyright as has been absurdly extended to cover those older than even my grandparents even now fell on it. Maybe I'll do what I once did and invent an "institution" for me to get access past that intellectual Berlin Wall.
** I've found a number of transcripts of speeches given by TR before and right after this article was written, many of which slammed the Court almost as strongly as I'm perhaps infamous for. I have not found one of that particular speech, yet.
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