The Supreme Court last week struck down President Biden’s coronavirus vaccine (or test) mandate for companies with more than 100 employees. As Mark Joseph Stern writes at Slate, the reasoning was ridiculous and biased. “It is telling that OSHA, in its half century of existence, has never before enacted broad public health regulations of this type,” the majority wrote, conveniently ignoring that it is of the first such pandemic in this half-century. This absurdity was only underscored by the fact that the arguments in the case were heard remotely – due to the ongoing pandemic — and that one of the plaintiffs’ attorneys himself tested positive for COVID-19.
The decision is further evidence of a larger truth: America has a de facto judicial tyranny, and that is unlikely to change.
If current conservative justices retire strategically, as they typically have, Democrats would need to control the presidency for about 20 straight years — while holding the Senate when there are vacancies — to have a chance to return to court. majority. Realistically, absent adding more justices to the court or other extreme measures, we will not see a liberal majority again in our lifetime, and Democratic presidents will have their every move blocked by the conservative bloc.
Yet this is not the first instance of judicial despotism in American history. The Supreme Court has often acted exactly as it does today, and that history is worth reviewing now.
The problem with judicial review of our Supreme Court is obvious when you think about it: when nine justices have the final say on what the legislature and the president can do, they will tend to use that position to their political advantage. They have the power to pretend that the law says what they want. And when judges are unelected, appointed for life, and almost always come from similar backgrounds of extreme wealth and privilege, the likelihood of them abusing their authority is almost total. As Thomas Jefferson wrote in a letter, judicial review “would place us under the despotism of an oligarchy. Our judges are as honest as other men, and no more.”
Indeed, something like three-quarters of the history of the Supreme Court is a miserable streak of wealthy racists rigging constitutional arguments for white supremacy and corporate power with arguments whose plausibility ranges from dubious to outright absurd.
Prior to the Civil War, the court was a strong advocate of chattel slavery. Most infamously, Chief Justice Roger B. Taney argued in Dred Scott vs. Sanford (1857) that black Americans cannot “claim any of the rights and privileges [of] citizens of the United States,” because they weren’t meant to be citizens under the original Constitution — despite the fact that when the Constitution was ratified, free black men could vote in five states.
Taney further argued that Congress had no power to outlaw slavery in the territories and that its intent was clearly political. As a conservative supporter of slavery and the South, he wanted to eradicate the possibility of abolition forever by using his power to rule by decree.
It didn’t work, of course. The court’s isolation from the people has often meant that its political interventions are misguided, and Taney’s trampling on precedent and democracy helped spark the war. That didn’t stop Taney from trying to help traitors, of course. He attempted to overturn President Abraham Lincoln’s suspension from habeas corpus although the Constitution specifically allows it in times of rebellion. Lincoln ignored Taney, to his credit.
After the Civil War, all three Reconstruction Amendments canceled Dr Scott. The 13th Amendment abolished slavery; the 14th stipulated that all persons born in the country were citizens; and the 15th guaranteed black men the right to vote. For a time, the court was in the background, and multiracial democracy flourished in the South under federal protection.
But within a few years, the court had returned to its usual tricks. As historian Eric Foner writes in his book The second foundation, the reactionary racists on the bench gradually devised a doctrine of “state action” that somehow prohibited the federal government from doing anything to protect black people from white supremacist terrorism or blatant discrimination.
In United States vs. Cruikshank (1876), the Supreme Court overturned the convictions of racist mass murderers for violating the civil rights of their victims. In the Civil Rights Cases (1883), they held that Congress could not prohibit discrimination of private parties. Finally, in Plessy v. Ferguson (1896), they openly supported apartheid Jim Crow. Then, while black voters were being systematically disenfranchised throughout the South, the court did nothing to enforce Section 2 of the 14th Amendment, which says those states should have lost congressional representatives.
Around the same time, the court enacted a ridiculous, Monty Python-esque reading of the 14th Amendment as defending businesses against regulations aimed at protecting workers. It established a “freedom of contract” that appears nowhere in the text of the amendment or in any of the congressional debates surrounding its enactment. In Allgeyer v. Louisiana (1897), judges struck down a Louisiana insurance settlement. In Lochner vs. New York (1905), they repeal a law imposing a maximum work week of 60 hours for bakers. And in Adkins v. Children’s Hospital (1923), they canceled a federal minimum wage for women.
Altogether, the era of constitutional jurisprudence from the 1870s to 1930s on civil rights and corporations is probably the most egregious example of judicial tyranny in American history – at least so far. Here is a series of amendments stemming from the bloodiest war in the history of the western hemisphere. They were clearly aimed at consolidating the results of this war: slavery was to be abolished and black men were to be voting citizens, just like white men. Everyone back then knew and accepted these facts, whether they liked them or not — which is why Mississippi didn’t ratify the 13th Amendment until 2013.
The Supreme Court unilaterally removed most of the substance of these laws, except for formal slavery, during those years. He blessed the efforts of the KKK terrorists to install a monstrous racist despotism in the Old Confederacy. He turned the amendments into new ones protecting businesses from child labor laws and the eight-hour day, all the way through the legal equivalent of standing on your head and hooting like a chimpanzee. This is how dictators rule:[T]here there is no law, there is only power.”
This phase of Supreme Court tyranny lasted until the Great Depression put Franklin Roosevelt in the White House with gigantic Democratic majorities in Congress. Even then, the court continued to strike down the New Deal legislation under shelled pretenses, and it took Roosevelt preparing to add judges to the court – and even defy it entirely – for a judge to changes sides, allowing Roosevelt to fight against the economic crisis. proceed.
The only extended period the court stood on the side of justice was under Chief Justice Earl Warren, appointed shortly after Roosevelt’s tenure by Dwight D. Eisenhower. But the Warren Court didn’t even last 16 years. And for all his accomplishments, many of his signing decisions weren’t very effective – Brown v. Board of Education (1954), for example, totally failed to end segregation. This required legislation from Congress and massive coercion from the executive branch.
Other more recent decisions have been more effective, such as the establishment of the right to abortion in Roe vs. Wade (1973) and gay marriage with Oberfell v. Hodges (2015). Yet, on the whole, it would be far better if these changes were also achieved through the normal legislative process rather than through a court ruling. The many injustices of the current system far outweigh those few times when judicial review has served Americans well.
When a handful of wealthy legal clerks are given the opportunity to dominate society, they will. History suggests that America will always have a de facto judicial tyranny as long as we have the Supreme Court as we know it.