...was all about property uber alles. It was Rehnquist’s jurisprudential raison d’etre.'It’s that compared to previous chief justices, the entire arch of the Robert Court has been about enshrining discrimination into law and protecting the powerful at the expense of the powerless.'https://t.co/4P14ctXKx2
— Phil Stripling (@civex) July 11, 2025
His judicial philosophy was that the proper focus of the law was protection of property rights, which has deeper roots in British jurisprudence than protection of persons does. Criminal law had its origins in the idea that subjects of the crown were protected by the crown because to injure them was to injure the property of the crown itself. People had no inherent value in themselves, especially not those with no real property ownership, but they were protected as property of the sovereign. Queen Elizabeth could have you taken to the Tower, but a brigand could not deprive the sovereign of her property’s life or limb.
Land, or “real property,” was the source of power, and the sovereign distributed that to buy loyalty, as rulers had done since the days of Beowulf. But land proved more enduring, and valuable, than plunder. So the legal system was (still is, actually) rooted in land and its possession and the protection of same. Property law is far more fundamental than tort law, and ancient of days, especially in contrast to the young upstart, civil rights law.
Rehnquist didn’t have a lot of use for the concerns for persons exhibited by the Warren Court. That was too recent an idea, and not as firmly rooted, as foundational to Law, as the law of property. The legal system we inherited protected property interests first, and people only much, much later.
There is a school of thought that Warren, having overseen the Japanese internment camps, was trying to atone ever after. Certainly the Warren Court was the vanguard of a spasm of liberalism (perhaps because we were “liberators”?) after WWIi, a spasm we have been contracting from ever since.
Not to say the Roberts Court isn’t returning discrimination to the law, or upholding power over the powerless. Just that it’s a return to status quo, a reversion to the norm, that started with the Burger Court and kept right on going. Quite consciously and intentionally, with very, very deep roots in our legal and historical culture. And as little concern as possible for people who are not property owners first, and foremost.
I think way, way too little attention has been given to John Roberts' unexpressed but flagrantly obvious white supremacy and hostility to People with Black and Brown skin and, especially, their access to elite institutions such as are his milieu. He is an example of the old genteel white supremacy of the Virginia variety and he's hardly the only example of it on his Court.
ReplyDeleteHe is already the worst of a rotten bunch of bad Chief "justices." Even the worst of them didn't go as far as he and his Republican-fascist colleagues have gone in instituting oligarchic fascism.
Well, reinstalling oligarchic fascism. The Reconstruction Amendments are, I think, akin to the rulings of the Warren Court. And, perhaps not coincidentally, also the result of a war that affected the homeland. And both times, we snapped back. Hmmmm….
ReplyDelete