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The Supreme Court Has Always Been Terrible

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The Civil Rights Cases

The Slaughterhouse Cases and US v. Cruikshank are preludes to the final gutting of the Reconstruction Amendments in The Civil Rights Cases, decided in 1883. Earlier bills aimed at insuring the full citizenship of Black people were struck down by the Supreme Court but Congress kept trying, passing another Civil Rights Act in 1875.

The new law required all businesses to serve people equally regardless of race or prior condition of servitude. The Civil Rights Cases are a consolidated group of cases brought by Black people to enforce their right stay in a hotel, to visit a theater, to sit in the dress circle of a theater, and for Black women to ride in the Ladies Car on a railroad. The Court struck down the law on the same grounds as cases linked above. I have two further observations.

1. Writing for the majority, Joseph Bradley writes:

We have … felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court, and we are bound to exercise it according to the best lights we have.

Bradley doesn’t say who threw the “responsibility of an independent judgment” onto him. He uses the passive voice to hide it. We know it can only come from the minds of the members of the Court. He also knew he could get away with this outrageous assertion of power. By 1883 Congress was controlled by the Democrats, then the part of White Supremacy, so they didn’t care. The presidency, then at a low ebb in power, was irrelevant.

The lives and liberty of Black people didn’t count, and nothing was left of the Reconstruction Amendments.

2. To add insult to injury Bradley offered this argument.

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery.

The Supreme Court had struck down that “beneficent legislation”. Bradley knew about the Colfax Massacre. He knew the army had been sent in to stop murderous groups like the KKK. He know about lynchings, rapes, robberies, and mob violence. He knew that states refused to protect Black citizens, and that Congress was trying to fill the gap. He knew full well the intent of the Reconstruction Amendments was to enable the federal government to protect Black Citizens. He just didn’t care.

Bradley would fit right in with the MAGA SCOTUS of today.

Our Current SCOTUS Doesn’t Care About The Consequences of Its Decisions

Three examples will suffice.

Gun Case. Here’s a section of the oral argument in Macdonald v. City of Chicago.

… BREYER: You’re saying they can have — no matter what, that the City just can’t have guns even if they’re saving hundreds of lives — they can’t ban them.

….

… SCALIA: There’s a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime, but the confession can’t be used. We don’t — we don’t resolve questions like that on the basis of statistics, do we?

Miranda is not analogous, and the intellectual fraud Scalia knew it. The statistics the odious Scalia is talking about are real dead and injured people. Like this child. Scalia doesn’t care about these murders or what guns and gun violence do to our society. He thinks his views of the intent of the Founders are more important. He thinks the Founders would sacrifice thousands of dead people for the right to waltz around with an AR-15.

The OSHA Rule. Here’s a snippet from oral argument on the OSHA Covid vaxx or test rule.

… ROBERTS: No, it’s not so much that OSHA has less power. It’s that the idea that this is specific to particular agencies really doesn’t hold much water when you’re picking them off one by –one by one.

I think maybe it should be analyzed more broadly as this is, in effect, an effort to cover the waterfront. I’m not saying it’s a bad thing.

But I don’t know that we should try to find, okay, what specific thing can we find to say, oh, this is covered by OSHA? What specific thing can we find to say that this is covered by the hospitals? What specific thing can we find to say, oh, no, we’re doing this because this is a federal contractor?

It seems to me that the more and more mandates that pop up in different agencies, it’s fair –I wonder if it’s not fair for us to look at the Court as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this, and why don’t the –why doesn’t this be the primary responsibility of the states?

Roberts is saying it’s suspicious that Biden (and Trump before him) marshaled all government agencies to deal with the pandemic. He’s going to decide how the government can respond, no matter what the statutes say, and as Elizabeth Prelogar, the Solicitor General responds, he could just read the statute. But you won’t see Roberts taking any blame for the people who died, or spent days or weeks in intensive care, or got long Covid, because of his decision. For him, that’s just statistics. He doesn’t care.

Abortion. In Dobbs v. Jackson Whole Women’s Health Alito says SCOTUS doesn’t have to follow precedent, meaning Roe v. Wade, in part because no one can prove they rely on it. Reliance requires proof that one is planning in advance based on the precedent. No one plans to get pregnant then get an abortion. Presto, no reliance. There’s more, and it just gets more cruel.

Alito ignores the actual effect of Roe v. Wade: that women and their families can control their own lives, that their lives are valuable. The abstract idea that states should have a say in women’s lives is more important than an unknown number of deaths, thousands of dangerous pregnancies, and loss of dignity as citizens. Alito doesn’t care.

Conclusion

The Constitution doesn’t give SCOTUS the final say on our rights. It doesn’t say SCOTUS has the unrestrained power to throw out laws and rules created by the elected branches. That’s all invented by SCOTUS itself, taking power and control away from democratically-elected officials.

The Fox News Six would repeat every decision of the Reconstruction Era Supreme Court. They follow in the footsteps of people who don’t care.

Understanding Suicidal Americans

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I’ve always had a sneaking admiration for people who vote on principle rather than self-interest. Lots of people vpte against their economic self-interest because they believe that some religious doctrine is more important. Some vote for the Republicans who have rigged the economy to protect the interests of the filthy rich because the Republicans promised to end abortion. I think that’s stupid. But at another level, it’s easy to forgive. After all, I vote for Democrats like Liz Warren who want to raise my taxes. This would be expensive for me, but I think it’s crucial for a decent society to work to reduce wealth inequality.

But even I can’t understand the rationale for refusing masks and vaccinations. That’s just suicidal, as we see over and over among the genuinely stupid. For example in the last few weeks, at least seven conservative talk radio hosts nad anti-vax anti-mask shouters have died of Covid-19. Their reasons vary, but all ignore the actual facts, including the safety record of the vaccines and the protection they give us. As an example, Phil Valentive said in a blog post that his chances of contracting Covid were “pretty low”, and his chances of death were less than 1%. In point of fact, at least 13% of us have caught Covid, and 1.6% of cases have resulted in death so far. But Valentine thought he could evaluate his own immune system and do his own calculations.

Innumerancy isn’t new in the US; most of us aren’t good at really big numbers. That’s why we don’t do research ourselves but rely on experts to help us make smart decisions. And therein lies the problem. These suicidal people reject traditional expertise.

Again, at one level, so do I. The elites who started the War On Terror are incompetent monsters. Elites decided to deregulate the financial sector. They were wrong and caused enormous damagae around the world. The capitalists who fought regulation designed to prevent climate change are elites. They are still busy wrecking the planet. The intellectually dishonest hacks on SCOTUS who have beat back our efforts to govern ourselves are elites. The list of failed elites is long and dismal. And none of them are ever held accountable. Not a single one of them is even shamed. And that’s before we get to Trump and his crowd of intentional wreckers. So yes, our elites are failures.

But that’s not what the suicide class cares about. They’re mad because smart people hurt their feelings. That’s the explanation offered by David Brooks in his article How The Bobos Broke America. Brooks read several recent books about stuff, and he explains that the “creative class”, of which he is a member, is a bunch of self-centered, self-righteous, not-nice people who are insufficiently sensitive to the feelings of the rest of America.

Brooks’ creative class consists of “… the same scientists, engineers, architects, financiers, lawyers, professors, doctors, executives, and other professionals who make up the bobos …” the group Brooks discussed in his book Bobos In Paradise. They came to dominate culture. This makes the other groups sad, or angry, or both, and so naturally they reject the class and its values. In that process, they reject the expertise that gave rise to cultural dominance. That includes the science and technology that we need to solve our actual problems. Here are some quotes to flesh that out:

1. The working class today vehemently rejects not just the creative class but the epistemic regime [defined earlier in the test as “the massive network of academics and analysts who determine what is true”] that it controls.

2. A third rebellion is led by people who are doing well financially but who feel culturally humiliated—the boubour rebellion. These are Mark and Patricia McCloskey, the rich St. Louis couple who waved their guns at passing Black protesters last year.

3. What causes psychic crisis are the whiffs of “smarter than” and “more enlightened than” and “more tolerant than” that the creative class gives off. People who feel that they have been rendered invisible will do anything to make themselves visible; people who feel humiliated will avenge their humiliation.

4. The reaction to the bobos has turned politics into a struggle for status and respect—over whose sensibility is dominant, over which groups are favored and which are denigrated. Political attitudes have displaced consumption patterns as the principal way that people signal class sensibility.

Like everything Brooks writes, this is slanted to produce a result Brooks likes. But there are a couple of germs of reality here. There is no doubt that the value systems of various classes of society are different. And there are in fact epistemic regimes. We saw a lot of this in reading about the sociology of Pierre Bourdieu.

Consider this post. Bourdieu talks about symbolic violence, meaning “…the capacity to impose the means for comprehending and adapting to the social world by representing economic and political power in disguised, taken-for-granted forms.“ In this phrasing, someone has power to enforce an epistemic regime related to economic and political power. I used neoliberalism as an example in the post.

Epistemic regimes govern most of our ways of understanding parts of our lives, including our social lives, and our spiritual lives, and the way we understand academic disciplines. There is, for example, an entire epistemic regime around our understanding of literature. There is an epistemic regime that governs scientific fields, as Kuhn shows. These epistemic regimes are regularly contested, as by deconstruction, or string theory. But there are entire systems devoted to managing and deciding those contests.

Brooks pretends that a “massive network of academics and analysts” controls the epistemic regime around political and economic power. As a statement of cause and effect, that is absurd. It would be equally absurd to argue that literary theory is governed by a massive network of billionaires and centi-millionaires.

To put it another way, there is no plausible political science theory that says that the interests of the filthy rich are entitled to dominance in a democracy or that any particular pig rich person is entitled to make decisions for the rest of us. Nor is there a plausible economic theory that says that oligopoly is a good way to run a market. True, there are economists and lawyers who tie themselves in intellectually silly knots trying to justify the current state of concentrated corporate power in the US. The oligarchy funds this network of grifters and PR hacks and supports their efforts to distort and mislead.

That takes us to the next step. The suicidal class operates under its own epistemic regime, one created by right-wing media and social media, right-wing pundits, Fox News and its competitiors, right-wing talk radio, and a massive infrastructure of support from right-wing Oligarchs. This epistemic regime is totally divorced from reality. It says to its adherents: you can’t trust main stream media, government workers, scientists, doctors, the health establishment, or any one other than us, because only we know the truth. Covid is just like the flu. Vaccines cause sterility. Hydrochloroquine and Ivermectin are great treatments for Covid.

The people who create and operate this epistemic regime are not Brooks’ creative class. They are a motley group of ghouls, amplified and encouraged by tools of the Oligarchy. And their epistemic regime is killing people.