THE CONCLUSION of Louis Boudin's article on Government by Judiciary talks about Supreme Court two-stepping, issuing baldly contradictory rulings based on cases with identical bases as an example of the consequences of the great change in Supreme Court "rules" which were supposed to protect the country from the Supreme Court becoming what judges who favored a judicial veto of legislated laws warned about even as they advocated that, that the courts and, especially, the highest court could become exactly what those who opposed that court power said it would lead to, judicial tyranny.
And that tyranny, once established, quickly puts aside any notions of consistency or principles restricting them.
As "justice" Curtis noted in his dissent in Dred Scott, in that first significant use of the Marbury power grab, the majority baldly lied about the history of Black People being citizens in a number of the states both during the period before the Constitution was adopted and even as the Constitution defined citizenship in the United States as being based in who was included in the state constitutions at the time of the adoption of the Constitution. So the barrier against lying in a majority decision had gone, certainly in that first real use of the power if not earlier. Who is going to stop a Supreme Court majority simply lying or, as Sonia Sotomayor noted in her dissent in Trump v. Slaughter:
The majority’s decision continuing that trend today is egregiously wrong. In this case, the Court takes one of the oldest debates in American history and decides that the six Justices in the majority, alone, ought to be the ones to settle it for all time. That decision does not just overrule precedent; it all but ignores that precedent exists.*
Which is exactly the same thing they did in the Dred Scott decision. Exactly that.
So the U.S. Supreme Court, under its own claimed rules, puts aside their rules for applying that supreme power, as Boudin laid out in the part I posted last week, they set aside the need for them to be consistent in how they applied that power in cases of exactly similar facts in cases they decided to decide, they put aside any requirement that they not lie in a decision of the Supreme Court and, with that, they can put aside even the most basic of restrictions on that power which they have given themselves, knowing that there will never, not in their lifetimes, be a sufficient super-majority in the Senate to remove them because their fellow Republicans will keep the worst of them there even as it has kept the most criminal president in our history in office. EVEN ONE WHO MOUNTED AN INSURRECTION AGAINST THE CONGRESS AND THE CONSTITUTION!
Knowing the arrogance of the Prep-Ivy League class, I am entirely confident that the Roberts Court majority imagined, as did the Republican elite did when it forged the "Southern Strategy," an alliance of money interests with white supremacists, especially in those Southern states where white supremacy has generally reigned, that the elite would harness and control its agents among the lower orders of their movement, giving them what they wanted, hate, while using them to get what they wanted, wealth and the power to gain and secure that wealth.
No doubt Roberts and Coney Barrett, at times joined, perhaps, by Kavanugh still are stupid enough to believe what they unleashed in Trump v. USA and other rulings in that line was still under their control. Goresuch, Alito and Thomas don't seem to mind as much that they clearly don't have that kind of control. Look at how Trump-Miller et al are flouting their recent birthright citizenship ruling.
When I said the Roberts Court was the worst in my generation's living memory and perhaps the worst in our history, I really, truly meant it. And I don't think I've demonstrated that I'm unaware of the sordid history of previous courts and that particular Court for most of its history.
I'm going to go long to finish this, both because it's illustrative of where the trend mentioned above started and how cruelly absurd the results of the Marbury power was even when it was white working class People who were the recipients of that species of "justice."
V concluded
The result of all these changes may be summed up in a sentence. There are now no such "plain and simple rules of interpretation as Judge Lurton claims; on the contrary, there are now practically no rules at all. Each case is supposed to stand "on its own merits," which, translated into ordinary English simply means that each law is declared "constitutional" or "unconstitutional" according to the opinion the judges entertain as to its wisdom.
This is another reason for the fact that almost all important constitutional cases are now decided by divided courts. Since there are no longer any set rules by which the judges can be guided, since they are left to determine the propriety and wisdom of laws according to the canons of politics and statesmanship, they naturally exhibit those differences of opinion which we expect to find in legislative bodies.
This leads our Supreme Court as well as our other courts, into the position — anomalous and absurd for a court, though perfectly proper for a legislature — of deciding in different ways cases similar in principle. Thus in the case of Holden v. Hardy the Supreme Court decided by a vote of six to three, that a law limiting the hours of labor in mines was constitutional; but in Lochner v. New York it decided, by a vote of five to four, that a law limiting the hours of labor in bakeries was unconstitutional. In principle the two cases of of course identical.
Under the old rules of interpretation, which limited judicial inquiry to the matter of legislative competence, these two cases must have been decided in the same way. Either both laws were constitutional or they were unconstitutional.
In the earlier case, Holden v. Hardy, the Supreme Court decided that the state legislature had the power to pass a law limiting the hours of work in any industry when it — the legislature — came to the conclusion that longer hours would endanger the health of those employed in that industry.
It follows as an irresistible conclusion that the bakery law was constitutional, the legislature enacting it having come to the conclusion that it was necessary for the protection of the health of those working in bakeries.
The decision in Lochner v. New York, declaring the law unconstitutional, startled the legal profession and evoked vigorous protest from many constitutional lawyers. They could not understand it. They accuses the Supreme Court of inconsistency. But the truth is that the court had discarded the old rules of constitutional interpretation and had adopted an entirely different theory.
An examination of the dissenting opinion in that cass, when it was before the New York Court of Appeals, and of the prevailing opinion n the United States Supreme Court, clearly shows this shifting ground.
Under the new rule of interpretation, it is no longer a question whether the legislature has the power to limit the ours of labor, when it determines that such a limitation was necessary for the health of those engaged in a particular industry; the question is whether that power has been wisely used.
The legislature has found that work in a bakery beyond a certain number of hours is dangerous to health. But, says the court, we don't consider it so. And it was their judgement of the matter of the healthfulness of work in a bakery, not their judgement on the constitutional power of the legislature, that led five out of the nine judges the declare the law unconstitutional.
We are not now concerned with the question of whether their conclusion was correct or erroneous. What concerns us is the fact that the court assumed the distinctively legislative function of deciding whether circumstances existed which required remedial legislation.
This position is opposed to that which the court took in Munn v. Illinois. Even in that comparatively late case the Supreme Court still held that such an inquiry was part of the function of the legislature, and none of the court's business.
It said: "For our purposes we must assume that if a state of facts could exist that would justify such legislation, it actually did exist when the statue was under consideration was passed." In other words: if the legislature has the power to limit the hours of labor when the health of the employees demands it, the court must presume that the health of the employees in the particular industry which the legislature has undertaken so to regulate does in fact demand such a limitation of hours. Neither Judge Lurton, nor anybody else will contend that if this rule had been followed in Lochner v. New York the bakery law should have been declared unconstitutional because the law still recognized in Munn v. Illinois was repudiated.
Another glaring instance of the open assumption of legislative discretion by the judiciary is furnished by the recent decision of the United States Supreme Court in the case of Muller v. Oregon. In that case the Oregon statute under consideration limited the hours of work for women in "mechanical establishments, factories and laundries," to ten ours a day. This law was declared constitutional "as to laundries." The Supreme Court conceded the power of the state legislature to limit the hours of work for women n the ground that "as healthy mothers are necessary for healthy offspring the health of women is a matter of special concern to the state. And yet the court limited its approval of the exercise of that power to the case of laundries, reserving to itself the right to declare the law unconstitutional as to "mechanical establishments" and "factories" if it should conclude on future investigation that the state legislature had made an unwise use of its conceded powers as regards such establishments.
Approval of the decision in Muller v. Oregon as a matter of legislative policy, because of its effect upon the condition of the working class of this country, should not blind us to its significance as regards the distribution of political power in our governmental system. In the later respect it openly, I say almost defiantly, maintains the position that to the judiciary belongs the supreme control of all legislation and that it means to use it.
To say, in the face of these decisions and the many more that could be cited but for lack of space, that our courts do not exercise any legislative power, seems like adding insult to injury. And it is certainly a strange commentary on Judge Lurton's declaration, that the judicial power insures to us "a government of laws and not a government of men," that within three months after the publication of these words the New York court of appeals rendered a decision** which led the editors of two important magazines to the doleful conclusion that nothing can help us — not even an amendment to the Constitution — except the election to the judiciary of proper men, not men learned in the law and in the Constitution, but men with a knowledge of life and plenty of common sense. These editors meekly accept the political situation created by the latest phase of the development of the judicial power and merely suggest a remedy for our social and economic ills on the basis of that political situation.
But the great question before the people of the United States is: Shall we permit this great revolution in our political institutions to take place undisputed? And the question before our leaders of thought is: Shall we permit this revolution to take place without even calling the attention of the people of the United States to its momentous character?
L.B. Boudin
* In a case of stunning irony and bald hypocrisy, in his concurrence with the majority in that case "justice" Goresuch said:
Congress has endowed formerly independent agencies not just with executive authority, but with enormous legislative and judicial powers as well. And now the President enjoys control over all those powers too. From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts.
I don't look forward to "justice" Goresuch doing much to abandon the Court's usurped powers of legislation. Congress never handed such powers to the judiciary, the Marbury power was founded on Marshall et all rejecting the Congresses power to give to the judiciary more power than was laid out in the plain reading of the Constitution.
It resulted in them taking on the role of a super-legislature and a vetoing virtual president. ONE WITHOUT THE POSSIBILITY OF CONGRESS CONFIDENTLY OVERRIDING THEM.
** Ives v. South Buffalo Railway Company
Here is the start of a description of the case an its aftermath I found online.
Ives v. South Buffalo Railway Co., 201 N.Y. 271 (1911), is the landmark New York case that briefly killed one of the country's earliest workers' compensation laws and, in doing so, helped reshape American labor law. On March 24, 1911, the New York Court of Appeals struck down the state's 1910 Workmen's Compensation Act as an unconstitutional taking of employer property without due process. The very next day, the Triangle Shirtwaist Factory fire killed 146 garment workers in New York City. The proximity of those two events intensified public pressure for reform, helping build momentum for a constitutional amendment, a redrafted workers' compensation law in 1913, and ultimately a U.S. Supreme Court decision in 1917 upholding the modern system. The case is a reminder that the protections injured workers rely on today did not arrive on schedule. They had to be fought for.
The sections below explain what Ives held, why it was so disruptive, what the public and the legislature did in response, and what the case still teaches about workplace injury law more than a century later.
To understand Ives, it helps to remember the bleak reality injured workers faced at the turn of the 20th century. Industrial accidents were common and often fatal, and the legal system offered very little support to the people they injured.
Under the common law that governed workplace injuries, an injured employee could recover damages only by proving the employer was negligent. Even then, employers had three powerful defenses that defeated most claims:
Contributory negligence. If the worker contributed even slightly to the accident, they recovered nothing.
The fellow-servant rule. If another worker, rather than the employer, caused the injury, the employer was shielded entirely.
Assumption of risk. Courts treated a worker's decision to take a dangerous job as acceptance of the dangers, absolving the employer from liability for injuries that resulted.
The practical effect of these doctrines was that most injured workers and their families were left without compensation. The cost of industrial accidents fell on the workers least able to bear it.
All of that seems well and good to us a hundred nine years later, but the Court in 1917 could have just as easily and capriciously overturned the law and who knows how long it would have taken for a different court to legislate in the opposite direction?
There were no voters to hold them to account as they could a legislature or a governor or president, the "justices" could do whatever they figured was in their interest at the time or, in fact, whatever they wanted to do. There is no higher court that they had to worry about overturning them, as can be seen in how they treat Constitutional amendments, not even the Constitution itself would do that.
I have to wonder if what Boudin and others were saying about ripping their own self-invented and grabbed legislative power from them figured in that decision, at all. I expect it did.
I can't imagine that all of those on the Court were unaware of such talk, I would be surprised if every one of them hadn't read Boudin's essay and others calling for that power to be taken from them. I am certain all of them were aware that the sole Socialist in the Congress, Victor Berger, had proposed a Constitutional Amendment that would do that. I don't think it's improbable that the modern idea of workers compensation when they are injured or killed as a consequence of their employer putting them at risk owes its survival on the killing floor of equality and democracy that is the Supreme Court and the lower courts under it to this article I've been going through.
