The Supreme Court Has Always Been Terrible

Index to posts in this series

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.


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.

49 replies
  1. earlofhuntingdon says:

    A Black man as a mere citizen, raised above his station by “beneficent legislation,” whose rights the Court intended to gut:

    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

    The current Court, no doubt, will echo this language as it does similar things to civil rights.

    • Peterr says:

      Frederick Douglass had some rather prescient words on July 5th — not 4th — in 1852:

      This, for the purpose of this celebration, is the 4th of July. It is the birthday of your National Independence, and of your political freedom. This, to you, is what the Passover was to the emancipated people of God. It carries your minds back to the day, and to the act of your great deliverance; and to the signs, and to the wonders, associated with that act, and that day.

      This celebration also marks the beginning of another year of your national life; and reminds you that the Republic of America is now 76 years old. I am glad, fellow-citizens, that your nation is so young. Seventy-six years, though a good old age for a man, is but a mere speck in the life of a nation. Three score years and ten is the allotted time for individual men; but nations number their years by thousands. According to this fact, you are, even now, only in the beginning of your national career, still lingering in the period of childhood. I repeat, I am glad this is so. There is hope in the thought, and hope is much needed, under the dark clouds which lower above the horizon. The eye of the reformer is met with angry flashes, portending disastrous times; but his heart may well beat lighter at the thought that America is young, and that she is still in the impressible stage of her existence. May he not hope that high lessons of wisdom, of justice and of truth, will yet give direction to her destiny? Were the nation older, the patriot’s heart might be sadder, and the reformer’s brow heavier. Its future might be shrouded in gloom, and the hope of its prophets go out in sorrow.

      There is consolation in the thought that America is young. Great streams are not easily turned from channels, worn deep in the course of ages. They may sometimes rise in quiet and stately majesty, and inundate the land, refreshing and fertilizing the earth with their mysterious properties. They may also rise in wrath and fury, and bear away, on their angry waves, the accumulated wealth of years of toil and hardship. They, however, gradually flow back to the same old channel, and flow on as serenely as ever. But, while the river may not be turned aside, it may dry up, and leave nothing behind but the withered branch, and the unsightly rock, to howl in the abyss-sweeping wind, the sad tale of departed glory. As with rivers so with nations.

      America is no longer young, and there are those who are actively working to dry it up leaving only an empty streambed with dried-up trees along its former banks.

      Thankfully, the hearts of the reformers still beat, but they know that America is no longer young.

      Pope Francis had some interesting words along these lines in a conversations with Jesuits in Portugal, as he answered a question about change by calling out the ultra-conservative voices in the US hierarchy. From La Civiltà Cattolica (translation below by Google Translate):

      [Question] Pope Francis, I would like to ask you a question as a religious brother. I’m Francisco, I spent a gap year in the United States last year. There was one thing that made a great impression on me there, and that sometimes made me suffer. I have seen many, including bishops, criticize his way of leading the Church. And many also accuse the Jesuits, who are usually a sort of critical resource of the Pope, of no longer being so now. They would even like the Jesuits to criticize it explicitly. Do you miss the criticism that the Jesuits used to make towards the Pope, the Magisterium, the Vatican?

      [Answer] You have verified that the situation in the United States is not easy: there is a very strong, organized reactionary attitude that structures an emotional sense of belonging. I want to remind these people that backwardness is useless, and it is necessary to understand that there is a correct evolution in the understanding of questions of faith and morals as long as the three criteria are followed that were already indicated by Vincent of Lérins in the fifth century: that doctrine evolves ut annis consolidatetur, dilatetur tempore, sublimetur aetate. In other words, doctrine also progresses, consolidates over time, expands and consolidates and becomes firmer, but always progressing. The change develops from the root upwards, growing with these three criteria. . . .


      When you go backwards, you form something closed, disconnected from the roots of the Church and you lose the lymph of revelation. If you don’t change upwards, you go backwards, and then you assume criteria for change that are different from those that faith itself gives you in order to grow and change. And the effects on morale are devastating. The problems that moralists must examine today are very serious, and to face them they must run the risk of changing, but in the direction I was saying.

      You have been to the United States and you say that you have felt a climate of closure. Yes, I warn you can experience this climate in some situations. But in this way the true tradition is lost and one turns to ideologies for support and support of all kinds. In other words, ideology supplants faith, belonging to a sector of the Church replaces belonging to the Church.


      Those American groups you speak of, so closed, are isolating themselves. And instead of living on doctrine, on true doctrine that always develops and bears fruit, they live on ideologies. But when in life you abandon doctrine to replace it with an ideology, you have lost, you have lost as in war.

      “A climate of closure” describes quite well the rightwing voices in the US secular political arena as well as it fits the more narrow arena of the US Catholic hierarchy. The GOP (including its rightwing evangelicals) has traded living political doctrines for narrow dried-up ideologies.

      Sometimes it is the voices from outside the power structures that can offer the most powerful insights.

      • ernesto1581 says:

        Francis refers to the Americans during this answer to one of the Portugese brothers as “indietristi,” a pun with amusingly sharp elbows.

        “Indietro” = backwards, in back of [something]; “tristi” is the plural of agency, “those who [move backward.]” Standing alone, though, “tristi” means “the sad (dismal, sorry, dreary) ones.”

        We might say, with less delicacy, “those sad-ass reactionaries.”

      • BobBobCon says:

        Douglass would also be a notable exception to what Bradley claimed about “no one” objecting to way free Blacks suffered “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.”

        He wasn’t the only one, either, but Bradley simply invented his story out of thin air.

        We saw something equally odious in the Roberts opinion gutting the Voting Rights Act. Congress had held extensive hearings and provided overwhelming evidence that racism was still an issue in the areas covered by the VRA, but Roberts just went the route of judicial activism by waving it all away. No, he insisted, there wasn’t any racism in Mississippi anymore, so he was free to wipe out the law enacted by the other two branches.

        • Fred J. Frahm says:

          Justice Roberts has not, to my knowledge, ever had to answer for his conclusion that that racism was no longer an issue in the jurisdictions specially regulated by the Voting Rights Act? Surely he saw the immediate discriminatory reactions of “those jurisdictions” to the Court’s neutering of the Voting Rights Act. Was the recent successful racial gerrymandering case a sign?

  2. Benoit Roux says:

    I agree that the current conservative majority is fairly repugnant. But one fundamental problem is the old and vague US Constitution and the lack of clear framework to interpret it unambiguously. It is neither normal nor good that fundamental rights are obviously supported by the Constitution in the view of some people, but not at all in the view of some other people. It is weird that the free speech of the 1st amendment, meant for humans, was extended to corporations. It is revolting that the 2nd amendment was distorted beyond belief to counter any reasonable gun regulations attempted by large cities.

    • Theodora30 says:

      It wouldn’t matter how explicit the rules for interpreting the constitution are; these extremists blatantly make their own rules and lie when that isn’t working. As this article says these right wing extremists make up their own rule. Worse they do it while insisting they are “originalists” who interpret the constitution based on what the framers intended:

      “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.”

      A blatantly example is their deliberately ignoring of the term “well-regulated” militia in the 2nd amendment and refusing to allow sensible regulations to be implemented by states, let alone the federal government.

      It is not different than “Christian” preachers of the Prosperity Godpel saying that Jesus wants his followers to be rich when he spoke clearly about the dangers of wealth.

      • bmaz says:

        And, so, since you are so adamant as to SCOTUS, what exactly do you think the final voice on law in this country ought be? A Fox News poll? Some other poll? How, pray tell, do you think this all ought to work? Please enlighten us.

        • Ed Walker says:

          Congress. The President. A rule that every Scotus Constitutional decision be submitted to them or the people for a vote. A rule that any scotus constitutional decision can be overturned by a majority vote in Congress or a Presidential veto.

          What’s your solution to arrogance at Scotus? It took a terrible war to end Dred Scott. Thousands died and were terrorized because of the decisions I’ve discussed. What’s your solution?

          • bmaz says:

            A better SCOTUS. One that Democrats actually understand and give a shit about, as opposed to just Republicans and the FedSoc. But very much not one at the beck and call of Congress or “popular opinion.”

  3. Adam Treat says:

    What I find unconscionable is the inability of the Justices and congress – both sides – to self-reflect and admit what is plain before all of our eyes – that biased/motivated reasoning prevails. That the court, is, in fact, partisan. Each and every ruling can be fairly easily predicted by the public based on the partisan affiliation of the court involved. Entire political campaigns are devoted to this, but somehow we’re also supposed to not say it so explicitly. The Justice’s like to hide behind a fig leaf of impartiality that no reasonable observer of the court takes seriously.

    I don’t like this non-serious, non-introspective, emperor has no clothes, false frame of a court that is impartial or above partisan considerations when every piece of evidence we have is that this is not the case. They need to come down off of their high horses and everyone needs to acknowledge that they have come down.

    • Adam Treat says:

      This is another way of saying that the premise of OP is wrong: they most emphatically *DO* care. They care very much that their partisan rulings triumph. Scalia, emphatically, *DID* care about securing his gun ruling. That ruling reflected his partisan inclination and his tribe’s preoccupation and I’m sure he was quite pleased and happy with himself that he pulled it off.

      It is this figleaf of it being non-partisan that tricks us into thinking he didn’t care. He did. And the MAGA-right still *CARES DEEPLY* that it not be overturned.

      So, the conclusion is correct, had Scalia lived in the time of those reconstruction rulings he’d likely have ruled the same, but not because he *didn’t care*, but precisely because *he did* care so much for putting his partisan inclinations over the top.

    • HWeinberg3 says:

      “That the court, is, in fact, partisan. Each and every ruling can be fairly easily predicted by the public based on the partisan affiliation of the court involved.”

      There was a brief period from Brown v Board through the 70s where the court used their humanity to inform a lot of their decisions rather than the interests of the plutocracy that put them there. During the 70s was when the plutocracy realized what was happening and started growing apparatchiks in jars to stock the courts of the future with.

  4. Amicus12 says:

    Baude and Paulson’s recent article The Sweep of Section Three analyzing the import of the disqualification from office provision set forth in Section Three of the Fourteenth Amendment is lengthy but worth a read.

    To the point here, their article discusses Justice Chase’s circuit decision in Griffin’s case which held that Section Three was not self-executing but instead required Congress’ passing of statutory implementation rendering the provision a dead letter and thus further frustrating Reconstruction. Baude and Paulson show that the decision was expressly results oriented and a piece of self-defeating pretzel logic. But it had the desired effect. The full story of the decision from how Chase extorted control over the case to secret meetings with the other Justices is worth a read. Yes, nothing new under the sun.

    • bmaz says:

      Baude and Paulson are conservative assholes, and their reading of the 14th is dangerous. Without a criminal conviction for the specified offense(s), banning an individual from office would leave it up to partisan hackery. People who favor this without even the nicety of a criminal conviction should beware of what they seek.

      Yet another example of how the derangement over Trump is materially changing law in extremely dangerous ways. Get Trump legitimately, not through bullshit like this.

      • Amicus12 says:

        The issue is not who Baude and Paulson are but instead whether they are correct. To disagree with their reading of the 14th Amendment because it is “dangerous” is the same sort of ends justify the means reasoning employed by Justice Chase.

        Disqualification from office under their reading of Section 3 would either be as a result of judicial proceedings or subject to judicial review. And it would only occur if the courts (and ultimately Supreme Court) depart from the reasoning of Griffin’s case. I would be surprised if this Court will do so. It’s more likely we will hear a great deal about the import of stare decisis.

        What I see as the troubling aspect of Baude and Paulson’s position is the intercept of Section 3 and the First Amendment. But I think they acknowledge that is the most controversial aspect of their position and no one knows how the courts would strike that balance were they to find Section 3 self-executing.

        Regardless, there is a core consideration. Section 3 was motivated by a concern to prevent those who tried to secede in violation of their oaths from taking office post-bellum. Which strongly suggests that someone who tried to end democracy, in violation of his oath, should not be on the ballot for President and get a second chance to do so. More importantly, the plain language of Section 3 should bar Trump from being on the ballot, unless and until Congress removes the disqualification. Myself, I don’t find the plain language of the Constitution to be bullshit or illegitimate.

        • Ithaqua0 says:

          bmaz’s point was about who gets to decide. We all are welcome to our opinions, but being barred from running for office is a legal matter, not one to be decided upon by pundits, TV lawyers, or the RNC or DNC for that matter. If the RNC wants to kick Trump out of the party for one reason or another (ha ha), that’s one thing, but banning him from running at all because of the 14th Amendment is very different and extraordinarily dangerous to the body politic without “because he’s been convicted of a felony that clearly meets the standard set forth in the amendment” on his record.

        • bmaz says:

          Oh, no, it does matter who and what Baude and Paulson are, and what their motivation is for putting out this tripe. It matters critically. And, since you are so hung ho on “the plain language of the Constitution”, exactly how do “you” think it should be exercised? Does any Tom, Dick, Harry or random blog commenter get to invoke it? How about Congress? If Congress, does it take both houses or just the Senate?

          You do realize that but for two votes, the Senate would be using this against Biden as we speak, no? Is that the “Constitution” you want applied? Really? Well, shit, it is just the “plain language” I guess.

      • HWeinberg3 says:

        “banning an individual from office would leave it up to partisan hackery.”

        The civil war traitors explicitly swore an oath to betray the US, the current seditionists have tried to maintain plausible deniability so yeah somebody has to prove it.

        • Amicus12 says:

          I suspect we will know how the Supreme Court decides this, perhaps before too long. And I doubt the outcome will be any great surprise. Law decided by results, however defensible or not that may be.

      • Peterr says:

        The nonpartisan Congressional Research Service issued well-documented and nuanced report last September on the history and use of the 14th amendment to bar people from office. The introductory section includes this, with plenty of embedded links (not included here).

        Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary. Reconstruction Era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy, and Congress in some cases took action to refuse to seat Members. Congress last used Section 3 of the Fourteenth Amendment in 1919 to refuse to seat a socialist Congressman accused of having given aid and comfort to Germany during the First World War, irrespective of the Amnesty Act. The Congressman, Victor Berger, was eventually seated at a subsequent Congress after the Supreme Court threw out his espionage conviction for judicial bias. Recently, various groups and organizations have challenged the eligibility of certain candidates running for Congress, arguing that the candidates’ alleged involvement in the events surrounding the January 6, 2021, breach of the Capitol render them ineligible for office. No challenges have to date resulted in the disqualification of any congressional candidate. A New Mexico state court, however, has removed Otero County Commissioner Couy Griffin from office and prohibited him from seeking or holding any future office based on his participation in, and preparation for, the January 6 interruption of the election certification.

        In the section on implementation, the CRS notes that the amendment is not self-executing. Conviction for treason or insurrection, per the statute, would carry this bar to office. It is possible, they say, that a civil action could work to persuade a judge to declare a candidate ineligible (or remove a sitting officer from office), but the issue of standing might be problematic. They suggest the most likely person to have standing would be an opposing candidate.

        There’s more to the report, but in a mere 6 pages they cover a LOT of ground, with all kinds of links to support what they describe.

          • Peterr says:

            Well, counselor, what you think “ought” to be the case needs to at least address the historical record and the broader context and address the arguments of those who say otherwise. Congress, under the constitution, does not need a criminal conviction to expel one of their members. Fair or not, that’s what the constitution says.

            No one serious is saying there should be no due process if the 14th amendment is invoked. The discussion is what that due process should be.

            For instance, secretaries of state and other election officials are empowered to rule on whether candidates for office are eligible, including whether they are of age, properly reside in their districts, and meet other criteria according to the laws of their state. If a candidate disagrees, they can take the matter to court. The 14th amendment is yet another “qualification for office” and should be treated as such.

      • Peterr says:

        In that battle, I’d put my money on Opus Dei. They (and their RC predecessors) have been at this a LOT longer than the protestant Moral Majority types.

      • Theodora30 says:

        The Dominionists and far right Catholics are not in opposition. They have worked together since the 80s when rightwing Republican operatives convinced evangelicals to agree with the Catholics’ stand on abortion. It’s rightwing Protestants bringing cases like Hobby Lobby and the Cake Lady. They know the Catholics dominating our SC will give them what they want.

        I want to see what happen when the cases brought by Jewish people who rightly say Roe violates their religious freedom. Judaism teaches that life begins at the first breath; before that time the life and well-being of the mother must be the priority.

  5. bloopie2 says:

    I see that Thomas and Alito have now made public some financial disclosure forms. That makes your article even more timely, Ed. Did you know that was coming? Just sayin’ … :)

  6. David F. Snyder says:

    My hearing must be going. Anytime “The Wife”™️ says ‘Justice Thomas’ I distinctly hear ‘scumbag.’ YMMV.

  7. Bad Wolf says:

    The sub-headline is “And it won’t get better without confrontation.”

    So, how do you confront the Court? Is it purely a political matter or are there institutional forces that can be used? Do you defund the Court and let them have a year in “time out”? Do you pass a law reminding the Court “it doesn’t say SCOTUS has the unrestrained power to throw out laws and rules created by the elected branches”.

    • Ed Walker says:

      I don’t know the solution. For now it’s enough to make this issue prominent and hold politicians accountable. Angry letters to them, regular attacks on social media, supporting candidates who recognize the problem.

      Solutions, maybe term limits, maybe something like what i suggest above for congressional or presidential action. Maybe something else.

  8. Amicus12 says:

    OFF TOPIC/GENERAL COMMUNITY INTEREST: It appears that more is brewing out of view in the documents case. After De Oliveira filed his response to the USG’s request for a Garcia hearing, two filings were apparently made on successive days (Aug. 31 and today Sept. 1) but have been designated restricted/sealed until further notice. (De Oliveira’s response is available on Court Listener.)

    In light of what came out concerning the USG filings that Judge Cannon previously struck from the record these new submissions may well foreshadow further fireworks.

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