The Supreme Court hasn’t changed


It was Paul Buhle who set me thinking about Louis Boudin (above), lawyer, first generation American Communist, ancestor of two generation of US leftists, and author of Government by Judiciary (1923), which is a sustained polemics against the US Supreme Court and one worth revisiting this week above all.

By the time he wrote the book, Boudin had been a practising lawyer for a quarter of a century. He had been other things too: a trade unionist, a delegate to the International Socialist Congress, and had run on seven occasions for elected judicial office with the backing of the Socialist Party of America.

Over two volume and more than 1000 pages, Boudin pursues the argument that the Supreme Court is the greatest force within American public life guaranteeing the dominance of conservative groups – even when a large majority of people reject their opinions.

“Our judges,” he wrote, “declare unconstitutional what they consider unwise or unjust or inexpedient – being guided almost exclusively by their philosophical, political, social and economic beliefs, and little or not by constitutional texts” (v1: 23)

One reason Boudin is able to sustain this argument over 150 years of American history from 1776 is that, as a lawyer, he had access to many of the celebrated decisions of the Supreme Court, and was able to show that the hegemony of the Supreme Court over the other institutions of American life was not obvious from anything written in the Constitution and therefore had to be created late and retrospectively and by defeating rival understandings.

It was not until 1895 (i.e. more than a century after the Court was founded), that its justices began speaking of bills passed by Congress as “unconstitutional”, meaning that not just that they did not bind the court, but that they could not bind either the President or Congress (v1:99).

That innovation, he argued, abrogated to the Court a power it did not have in the Constitution. One comparison was with the older pre-independence and common laws courts from whose practice the US Supreme Court supposedly derived. Faced with legislation they judged irrational, those Courts might strike it down, but they could not legislate on behalf of the legislature. All they could do was return the question, as it were, to elected lawmakers, to make a proper and lawful statute.

The US model created a system of “Judicial Power,” Boudin wrote, in which the Court was not merely the highest power of the US Constitution. It was in practice the only power.

American was, in consequence, a personal dictatorship with the composition of power determined not by who won elections but by “the physical vigor” of the persons who held senior judicial office (v1: 379 – and this was written a century before the death of Ruth Bader Ginsburg).

Key to Boudin’s argument were the decisions of the Court in upholding slavery, resisting the Republic during the Civil War and later in sabotaging Reconstruction, i.e. the attempts to transform the US South and root out the dominance of racial power.

From Lincoln’s perspective, the Civil War had required him to disregard the Court, and to ignore such landmark cases as Dred Scott v Sandford (1857) with its finding that people of African descent, whether slaves or free, could not enjoy the privileges of the Constitution (v2: 69).

As for Reconstruction, that was supposedly embodied in the 14th amendment, by which Congress prevented states from passing (for example) voter restriction laws to disenfrachise black voters. In the Slaughterhouse cases (1878) the Court effectively rewrote that Amendment to the point where it did not exist at all (v2: 114).

Government by the Supreme Court, Boudini wrote, meant “Government by a few Conservative men” (v2: 531).

And his book written in 1923 ends with a warning of where the Court would go next: towards the unremitting “exaltation of property at the expense of liberty”.

Obviously much has changed in the century since Boudin’s book was written, the Court has both lifted certain rights up (the 2nd Amendment) and cast others down (eg the 14th again and always) but what hasn’t changed is this. In a country where conservatives are preparing to wield unprecedented cruelty against their opponents – the judges will never be a reliable shield against authoritarian power. Rather they will be its reliable servant.

I have not written any of the above in order to make people passive or despondent, quite the reverse. One of the things Boudin shows is that elected officials (Jackson, Lincoln…) were able to defeat the Supreme Court where they and their supporters mobilised. The most celebrated example came in 1937, after Boudin’s book was published, when Rossevelt grew exasperated with a series of conservative decisions by the court.

The U.S. Constitution does not define the Supreme Court’s size, and Roosevelt threatened to pass a Judicial Procedures Reform Bill which would have enabled him to appoint a new justice for each judge over the age of 70 who did not retire. Conservatives accused him of court-stacking, but such was the pressure on the Court, that it ceased to obstruct new Deal legislation.

The only thing which prevents Democrats and their allies today from cutting the Supreme Court down to size, in other words, is simply the moderation in their own heards, their cowardice and invocation of the law even where the law is hostile to them.

It is that spirit which we need after Rowe v Wade, an honest understanding of the role played by the Supreme Court, and a willingness to go beyond legalism – in Britain as well as the US.

(For more on the Boudins as a radical family see these pieces on Kathy and Chesa Boudin).

(Or, for more on the relationship between politics and the law, see my new book, ‘Against the Law,’ which is published by Repeater on 12 July.)

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