Apr
15
The ten worst Supreme Court decisions of all-time (part one)
April 15, 2009 | 5 Comments
The title of the post says it all. This is a rundown of the ten worst decisions handed down by the highest court in the land. It was difficult pairing this list down to ten, but to me these represent the epitome of bad judicial decision-making.
I have three criteria by which I uses to judge bad Supreme Court decisions. First, the Court has to have erred in its decision. Simple enough. The more it veers away from an originalist understanding of the Constitution, the worse I deem it to be. Second, I look at the majority reasoning. It’s one thing to come up with a bad decision, it’s another to defend it in a highly non-sensical fashion. Finally, I look at impact of the ruling. A bad outcome can be mitigated by a later reversal. The greater the historical impact of the decision – for ill – the worse I deem it to be.
Without further ado, here are my infamous ten.
10) Plessy v. Ferguson (1896). One of only two decisions from the 19th Century, when the Supreme Court generally had a clue as to what it was doing. The tragedy of this case is that as abused as the 14th Amendment has been by the Courts to justify interfering with states’ rights, this was a a rare occasion when the 14th Amendment should actually have been employed to strike down a state law.
Justice Harlan’s prediction, given in his dissent, ultimately rang true.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.
9) Lawrence v. Texas (2003). The historical significance of this one is questionable, though its impact is subtly starting to be felt as courts decide to strike down prohibitions on gay marriage. I actually disagree in principle with the law struck down, but at least in theory constitutional law cases are not to be decided on the basis of whether or not the law is right, but whether it is constitutional.
This is also another Kennedy classic, one of two appearances on this list for one of the worst Justices in the history of the Court. (He narrowly missed being on here a third time with his opinion in Louisiana v. Kennedy, which I wrote about last June.) Had he at least taken Sandra Day O’Conner’s approach and based his decision on the Equal Protection Clause, he may have had a plausible case. Instead, Kennedy, egged on by the Court’s four liberals, based his rejection of Texas’s anti-sodomy law on a substantive due process analysis – and a poor one at that. Kennedy decided to engage in a bit of moralizing wholly divorced from any sort of reasoned legal analysis.
The one good thing about this case is that it paved the way from one of the great dissents of all time: Clarence Thomas’s brilliant, yet brief two paragraph dissent, always worth repeating:
I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.
8. Garcia v. San Antonio Metropolitan Transit Authority (1985). This is a bit of an arcane one, but it demonstrates the Court’s increasing disrespect of the tenth amendment.
The case centered around the Fair Labor Standards Act (FLSA) and the Labor Department’s determination that state railroads remained within the scope of the FLSA, and were thus subject to federal minimum wage laws. The San Antonio Metropolitan Transit Authority challenged the application of FLSA standards, and they in turn were challenged by an employee union rep, Joe Garcia, who demanded back pay.
The Court sided with Garcia, 5-4, overturning a previous case (National League of Cities v. Usery [1976]) that ruled against the feds. In this one, Blackmun wrote the majority opinion, arguing that the states only retain powers not transferred in the Constitution to Congress, and since Congress could use the commerce clause as justification for this action, the Court could not deny Congressional power in this instance. Blackmun attempted to assuage concerns that this was an overreach of federal authority by insisting that the limits on federal intervention in state affairs are present in the nature of Congress itself. After all, members of Congress are elected by citizens of the several states. That procedural safeguard acted as a sufficient protetion of state sovereignty. And besides, the states receive a lot of aid from the federal government, and this one teeny weenie obligation doesn’t burden the state too much. The built in restraints on federal power are enough, and the Court should not simply have to waste too much of its precious time determining whether the Federal government had actually violated state sovereignty.
Yeah, Blackmun was clearly a true man of genius.
7. Lochner v. New York (1905). This was during a time when the Court’s reliance on substantive due process was used aggressively in the interests of laissez-faire capitalism instead of hedonistic amorality. In other words, it was a slightly more innocent time.
The state of New York had set maximum daily and weekly and hours for bakers, and Lochner challenged the law as a violation of his liberty of contract rights. Lochner won in a 5-4 vote undergirded by this notion of a liberty of contract. It may have been a vindication of free markets, but it was a gross violation of state sovereignty.
6. Griswold v. Connecticut (1965).
[Previous] cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy . . . The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.
And with that, Justice Douglas signaled that the progressive wing of the Court wasn’t even going to pretend to base their decisions on the actual words of the Constitution.
In this case, the Court overturned what was a rarely – if ever – utilized Connecticut law prohibiting the distribution of contraceptives. It may have been a silly law, but, as is usually the case, silly laws are not inherently unconstitutional.
The decision is of course more notorious for what it would lead to down the road, but more on that later.
We’ll get to the rest of the cases in short order.
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5 Comments so far
Been reading your CATO Institute books recently I see.
The state has a right to prohibit contraceptics? Tell that to your wife or your daughter.
Speaking as said wife, I’d like to say that my gender has no bearing on my ability to judge legal matters dispassionately. My personal feelings about contraceptives not withstanding.
Yes, Mike, the Constitution permits the state to do things that I might not agree with.
BTW, it’s funny that you think that the promotion of contraceptives is just a woman’s issue.
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