Stephen Jones: A Rogue Court

This is a post by contributing writer, Stephen Jones, who is a progressive political activist and a resident of Las Cruces, New Mexico.

On July 3, 1854, eight armed artillery companies of Federal troops, deployed in a wedge formation, marched a single African-American man, in handcuffs, through the streets of Boston to a waiting Federal frigate. The man was Anthony Burns, a fugitive slave, and the courts had ordered his rendition and removal to Virginia. An enraged city jeered, most wearing black armbands of mourning, as the companies of Federal troops passed.

In the preceding days, his erstwhile owner had agreed to compromise and offered to sell Anthony Burns to his supporters, the citizens of Boston, but the Federal Government, speaking through its attorneys, and the Court would not allow it. Burns, as chattel property must, the Court said, be returned to Virginia.

In response to the decision of the Court, the poet John Greenleaf Whittier called the Law an “unloosed maniac.” The pacifist Henry David Thoreau went a step further. “My thoughts,” he wrote, “are murder to the state!”

The Burns decision was one of a series of decisions that would culminate in the double-barreled assault on civil liberties and the abolitionist cause by the Supreme Court and its blatant use of the law, or rather the judiciary, to support and further the economic interests of the slave holding planters of the South. In a 7-2 decision in the case of Dred Scott v. Sanford, Chief Justice Roger B. Taney did in fifty-five minutes what no Congress had ever managed to accomplish. In Dred Scott the Court proclaimed that no African American could be a citizen of the United States.

In manipulating the highest court of the land to serve the financial interests of the class of citizens from which he had come, that being the class of plantation slave holders, Taney believed he had ended, once and for all, the agitation of the abolitionists, destroyed the anti-slavery political movement, and elevated the slave-holding economic power to political pre-eminence. What he had done, in fact, was hurl kerosene on a raging fire. Four years later the nation was at war with itself, and the newly elected President, Abraham Lincoln, would openly ridicule and defy Chief Justice Taney and his majority as a “rogue court.”

Taney, who lost his property in the Civil War, died in poverty. Following his death a bill to appropriate funds for a bust of Taney’s head to be installed in the Court failed in the United States Senate. Senator Sumner of Massachusetts proposed that a vacant spot, not a bust of Taney, be left in the courtroom "to speak in warning to all who would betray liberty!"

Today’s visitors to Washington D.C. will find that Roger Taney’s bust has finally found its way into the brass bric-a-brac of the U.S. Supreme Court building, presumably to cover over an embarrassing hole in the wall, but his historic and legal reputation have not recovered. The Dred Scott decision was, thankfully, overthrown by the Congress with the passage of the 14th Amendment. After Taney, it was well into the 20th Century before the reputation of the Court managed to recover. Until 1935, the Court was forced to meet in the basement of the U.S. Capital building.

The slave holders of the antebellum order believed they could simply use the Supreme Court to further their economic and political ambitions. History proved them wrong. Today the corporate masters of the Republican Party have similar designs. They have decided to utilize five members of the Court to further the financial and political interests of the organization that appointed them in a way that hasn’t been seen since the times of Roger Taney.

Can any of us forget the blatantly political and outrageous decision of the Court in Bush v. Gore, which short-circuiting the constitutional and state statutory process for deciding the 2000 presidential election contest?

In Thursday’s decision in Citizens United v. FEC the Supreme Court majority negated a century of regulatory legislation protecting the rights of voters against the free flow of corporate dollars dating back to 1907. In a blatant power grab, they have opened the flood gates for any combination of donors calling themselves a “corporation” to pump funds into a campaign for or against any office holder.

Even stockholders in legitimate corporations are silenced by the decision. Now the corporate board rooms, rather than organizing for competition in the market, will be turned into de-facto campaign operations funneling dollars into paying for legislation that supports their company’s products and profits and blocks the competition and development projects of their potential rivals. History tells us what becomes of nations that are turned over to such corporate combinations, and it isn’t a pretty memory.

In his dissent, Justice John Paul Stevens called the majority, “backward.” Justice Stevens is way too kind! Like John Greenleaf Whittier, we ought to be saying the Supreme Court majority and the Law “is an unloosed maniac!”

While Justice Stevens was far too restrained, he enjoyed, at least, the solid support of good company. He was joined in his dissent by Justices Ginsburg, Breyer, and Sotomayor. On behalf of the four Justices, Stevens wrote, “In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules.”

Stating the obvious, Justice Stevens continued, “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

We also need to join the dissent. We need to demand that Congress act and fight to preserve our democracy. The Constitution must be amended to abolish the fiction of corporate “free speech” in the electoral process. Amendments aren’t easy, but they have been passed before, often when the Court overstepped its bounds, as it did on Thursday. The Amendment process was used to overthrow Dred Scott, to overrule the Court’s decision on the progressive income tax, and to guarantee the franchise to all in abolishing the poll tax. It is imperative, that we and Congress act, not only for the preservation of the democracy, but in saving the Supreme Court from itself.

When the judiciary becomes, in Lincoln’s terms, a rogue court, its very authority is in jeopardy. In fact, the Court has no authority to enforce its “decisions.” It must rely on the other branches of government to enforce its rules. If they don’t, and Executive and Legislative refusal to enforce court decisions has happened in our past, the court’s authority, and with it the whole body of jurisprudence, will simply begin to fade away.

In his earlier dissent in the blatant political decision made by the Court in Bush v. Gore, Justice Stevens warned his fellows of this eventuality if they continued on their political course. “The identity of the loser [in this case] is perfectly clear” Justice Stevens wrote. “It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

To read more posts by Stephen Jones, visit our archive.

Click to see previous commentary on this court decision by State Sen. Stephen Fischmann, Sen. Tom Udall, Rep. Martin Heinrich and this blog.