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Friday, September 4, 2015

Some History of our Corrupt Supreme Court of the United States (SCOTUS)

I suppose some Lawyers in training, have to memorize the names of all the SCOTUS Chief Justices who have ever served. If a Professor were to require people to do that I'm sure even the most brilliant lawyer would fail the test unless he had a facility for arcania. On the other hand it is important, to understanding the court, to know that these Justices have never been Saints. Some have been memorable for awful decisions, some for execreable decisions and a few for brilliant ones. In some cases, partisans of arbitrary reasoning have celebrated those decisions for a period of time, only for society to realize years later they were dreck.

Establishing a Timeline Helps sort the dreck from the jewels

I was trying to figure out how SCOTUS could be all over the place, and so in a systematic matter I started fashioning a timeline. Sometimes the court changes when the majority of judges changes, but the SCOTUS always reflects the life and times of it's chief Justice no matter how it's constitution changes who is on it.

The SCOTUS website provides a list of Chief Justices:

Jay, John (1789-1795)
Rutledge, John (1795)
Ellsworth, Oliver (1796-1800)
Marshall, John (1801-1835) *
Taney, Roger Brooke (1836-1864) *
Chase, Salmon Portland (1864-1873) *
Waite, Morrison Remick (1874-1888)
Fuller, Melville Weston (1888-1910)
White, Edward Douglass (1910-1921)
Taft, William Howard (1921-1930) *
Hughes, Charles Evans (1930-1941)
Stone, Harlan Fiske (1941-1946)
Vinson, Frederick Moore (1946-1953)
Warren, Earl (1953-1969) *
Burger, Warren Earl (1969-1986) *
Rehnquist, William Hubbs (1986-2005) *
Roberts, John Glover Jr. (2005-present) *

Some were better than others. Some were decent fellows. Other's were scoundrels, either personally, simply as folks who saw nothing wrong with supporting the inequities of the Status quo, or sadly, as folks who saw the Constitution as something that blocked human beings from justice. Ultimately our schools engage in too much hagiography. None of them were saints.

The first three Supreme Court Justices don't seem to have been particularly interested in the job. Jay preferred diplomacy and becoming Governor of New York to being Chief Justice. Rutledge was made Chief Justice by Recess Appointment, and his formal accession was rejected. And Ellsworth served til 1800, leaving office in poor health. That has been the pattern since. Chief Justices tend to serve a long time.

Marshal Versus Taney

But the key here is that by understanding the Justices one understands their decisions. John Marshall was a Nationalist, a Federalist and believed that the Federal Government had supreme Authority. His successor Justice Roger Taney was a "States Rights" believer, a Jacksonian Tory, and believed in dual authority between the States and the Federal Government. He claimed to be against concentrated economic authority -- by which he meant the existence of a National Bank and the authority of the Federal Government to regulate local banking.

Taney Versus Chase

Taney would have shot down the very idea of Congress regulating State Banking. On the other hand Taney was against "corporate personhood, especially the very notion of Companies of National scope.

"Whenever a corporation makes a contract, it is the contract of the legal entity, of the artificial being created by the charter, and not the contract of the individual members. The only rights it can claim are the rights which are given to it in that character, and not the rights which belong to its members as citizens of a state." [Justia article]

Taney thought of the states as "Sovereign entities" [same decision], Marshal and Chase didn't. Taney believed that States had full rights to regulate commerce. Subsequent Chief Justices have used the supremacy clause to negate that. A difference in who was on the Supreme Court had tremendous influence over the laws of our country. Both Taney and Chase had been Treasury secretaries:

"Taney helped draft Jackson's statement vetoing the bank's renewal, and he assumed the post of Secretary of the Treasury in 1833 to withdraw all federal funds from the bank, something two previous treasury secretaries had refused to do."

Chase on the other hand presided over the Veasey Case. Salmon B. Chase became Chief Justice (1865-1873) He too had been Treasury Secretary before he was chief justice and of course he was an expert on Tax law:

In a 5–2 opinion, Chief Justice Chase held that this use of Congress's taxing power was authorized.

Congress had just undertaken to provide for a uniform currency for the country. To protect the newly established national bank from undue competition for the state banks, Congress was using its power indirectly when it could have used a direct method. Congress had to protect the newly established bank notes and restrain the notes of the state banks as money. Authority to do this arose from its power to regulate the circulation of coin.

"It cannot be doubted that under the Constitution the power to provide a circulation of coin is given to Congress. And it is settled by the uniform practice of the government and by repeated decisions, that Congress may constitutionally authorize the emission of bills of credit. ... Having thus, in the exercise of undisputed constitutional powers, undertaken to provide a currency for the whole country, it cannot be questioned that Congress may, constitutionally, secure the benefit of it to the people by appropriate legislation. To this end, Congress has denied the quality of legal tender to foreign coins, and has provided by law against the imposition of counterfeit and base coin on the community. To the same end, Congress may restrain, by suitable enactments, the circulation as money of any notes not issued under its own authority. Without this power, indeed, its attempts to secure a sound and uniform currency for the country must be futile." {Justicia}

Chase versus the Forget-ables.

Chase was very ambitious. He was more of a Jay than a Marshal, and wanted to be President. Sadly, Chases ambitions didn't last long. He sickened and died before he could do much notable except the above ruling. Chase was replaced by Morrison Remick Waite (1874-1888). You usually hear of his associate Judges and almost never of him in articles about SCOTUS decisions. And that is for good reason. But his successor Melville Weston Fuller (1888-1910) wasn't any better. You often hear of notable associate Judges. Taney had his Justice Story. These guys were supplemented with some noteworthy scoundrels. It was said about Waite:

"The President has, with remarkable skill, avoided choosing any first-rate man. Mr. Waite stands in the front rank of second-rate lawyers .... But he undoubtedly is a man of the highest character, and has the best possible standing at the bar of his own State .... On the whole, considering what the President might have done, and tried to do; we ought to be very thankful, and give Mr. Waite a cordial welcome." []

They were of course being kind in saying Grant could have done worse. He was kind of the John Roberts of the 19th century. But actually, Waite may have been "of the highest character" to others in the Country Club elites. But to history he was a friend and confident of the Vanderbilt's and was probably nominated to the Supreme Court as a reward for representing the Cleveland and Toledo Railroad! On Page 135 of History of the Supreme Court volume II By Gustavus Myers, he notes:

"To ascertain the real importance of ... Waite's position as a railroad attorney [Prior to his nomination as Chief Justice] ... Samuel M. Young, law partner of [Justice] Waite was a director of the Cleveland and Toledo Railroad. The railroad belonged to the Vanderbilt System."

If Taney erred in giving too much power to the States to regulate their affairs. Waite made no secret of his links to vested influence. On the contrary, Waite was more concerned with the legislature (and the courts) being "regardful of vested rights!" Waite believed that "the legislature was granted power to regulate only "when devotes his property to a use in which the public has an interest." Starting with Santa Clara versus Southern Pacific, Justice Waite, and the majority, sought to limit even that power:

"The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does."

Though the alternative dramatic story I've heard is that he never actually said that, but this statement was actually a post-it note added by a future Associate Justice as a note to the case. In either case it became a precedent for nearly a century and half of corporate Hijinks. And after a brief hiatus during the Stone, Vincent, and Warren era. The notion of corporate personhood has become a tool for upending civil rights and making State and Federal Power subject to arbitrary corporate money.

"in [Justice Frankfurter's discussion of Chief Justice Taney: "One must be on his guard against recreating history by hindsight and attributing to the language of an early legal doctrine the implications which the evolution of experience have put into it"

Future Historians would give these folks credit for both good and bad unintended consequences of small seeming initial decisions. But I think in the Santa Clara Case, we can see that the corruption was intentional.

The author of the article I'm citing tries to exhonerate Waite of responsibilities for decisions of his court:

"When the Court decreased or negated the effectiveness of laws designed to protect the freedman, the Justices were merely legitimizing in constitutional law the Compromise of 1877."

But they also did this at the very same time they were using the 14th amendment to give impunity to the growing monopoly power of the new New Jersey (or Delaware) style national corporations.

I may expand this post (or more likely write a follow on) later as I read further on Waite and the even more fulsome Fuller. But, being able to read between the lines of hagiographies makes me sensitive to the corruption of such people as Taney and Waite and to the ambition of folks like Jay, Marshal or Chase. Yes, it's usually a "on the one hand" versus "on the other hand." But sometimes there is "no other hand." Waite's "regard" for vested interests is the very definition of "private, separate advantage" that John Locke associates with Tyranny.

List of judges:
Book on Taney:
Banking in the American South from the Age of Jackson to Reconstruction
The alternative Version of Santa Clara
More on Waite
Waite and Credit Mobiliere:
The Supreme Court under Morrison R. Waite, 1874-1888 - Waite and Credit Mobiliere
Waite and the Vanderbilts
History of the Supreme Court volume II By Gustavus Myers
Last Quote is from "Fiddler on the Roof".

Justice Story and Common Law

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