Ten Worst Supreme Court Decisions in History
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In doing do, Roberts carved out a particularly lonely piece of legal real estate in which none of his colleagues, or indeed any of the parties to the lawsuit, reside. By altering the plain meaning of the statute, Roberts has created a tax where a mandate used to exist, threading a needle that he himself invented.
Critics of this muddled middle of an opinion might be tempted to label it among the worst the Supreme Court has reached. But that would vastly underestimate the Court’s long history of racism, ineptitude, and willful ignorance of black letter law.
So here we present a hastily compiled and completely subjective list of the Ten Worst Supreme Court Decisions in History.
10) Bennis v. Michigan 1996
Tina Bennis and her husband owned a car, in which Tina’s husband engaged the services of a prostitute. The State of Michigan seized the car as a public nuisance. The Supreme Court determined that the government could take Tina Bennis’ property, without due process or appeal, even though she didn’t know that her property was being used in this way. This all seems particularly unfair to Mrs. Bennis.
The State of Minnesota extended the time that mortgagors had to keep their homes out of foreclosure, abrogating the contracts that they signed. The Court created the Emergency Exceptions Doctrine, arguing that the Great Depression was so bad that government could interfere with private contracts.
8) McConnell v. FEC 2003
The Court upheld bans on “soft money” to political parties under the Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold. This extended a line of reasoning that political speech was somehow less protected under the First Amendment that commercial or offensive speech. McCain-Feingold was not only completely ineffective, but its limits on independent and commercial political speech were overturned in Citizens United v. FEC.
7) Grutter v. Bolinger 2003
Writing for the Court, Sandra Day O’Connor found that the University of Michigan Law School had a compelling interest to promote class diversity that justified a series of racial preferences. While not expressly overturning the Court’s rejection of racial quotas in the landmark 1978 case, Regents of the University of California v. Bakke, Grutter did give affirmative action supporters a pretty clear road map to evade Bakke and continue to discriminate among prospective students based on the color of their skin.
6) Griswold v. Connecticut 1965
In rejecting a Connecticut law prohibiting the use of contraceptives, the Court created a Right to Privacy previously unnoticed in the Bill of Rights. This rather novel interpretation of the Constitution stemmed from the Court’s apparent desire to strike down the laws passed by the Connecticut Legislature without actually limiting government authority.
So instead of basing its decision on principles limiting government power, it instead created a vague new right that would supersede state authority, at least when the Court decided it did. The privacy right led directly to the far more controversial Roe v. Wade decision in 1973, which would have topped out list had we been counting down the most poorly written and confusing Supreme Court decisions, and Lawrence v. Texas in 2003.
The main fault in Griswold is not that it struck down a rather onerous and unenforceable law, but that it did so by inventing a new right out of whole cloth, one of that would be impossible to define and subject to endless future litigation.
5) Kelo v. New London 2005
Easily the least popular Supreme Court decision of its era, Kelo saw the Court extend the government ability to seize private property under eminent domain, even when the only public purpose was to enrich the Treasury. The Fifth Amendment’s Takings Clause prohibits the taking of private property for public use without just compensation. City of New London argued that by condemning a number of privately held lots and transferring them to the New London Development Corporation, the city would be better off an be able to collect much more in property taxes.
The public saw the Court’s decision in favor of New London as upholding the government’s right to take anyone’s private property if it feels that someone else can make better use of it. Kelo prompted dozens of states to pass laws prohibiting the use of eminent domain for economic development. The case remains a high water mark for the Court’s support for unlimited government power, finding that “public use” need only serve a “public purpose” and that “public purpose” could mean anything the government wanted.
4) Wickard v. Filburn 1942
Roscoe Filburn was a farmer who grew wheat to feed to his livestock. The Court determined that Filburn’s self-sufficiency caused him to buy less wheat from outside suppliers. They decided this marginal impact was enough to subject him to federal regulation under the Commerce Clause
It should be noted that Chief Justice Roberts opinion in NFIB v Sebelius seems to reverse Wickard, or at least greatly limit future use of the Commerce Clause by Congress. This may be the most far reaching aspect of the ObamaCare legal battle. The Court has overturned 70 years of nearly unlimited federal power under the Commerce Clause. Roberts certainly gave Congress broad authority to do much of the same things under the Taxing power, but from now on, politicians will have to impose their will through taxes rather than regulation.
3) Plessy v. Ferguson 1896
The Court upheld a Louisiana law requiring forced segregation by train car on the East Louisiana Railroad. This protected racial discrimination in state laws under the “separate but equal” doctrine, which would remain in place until Brown v. Board of Education in 1954. Keep in mind, Plessy didn’t just allow for self-segregation or discrimination by private individuals. It expressly upheld the right of states to force segregation upon others.
It is only because the Court upheld the notion of equality, as silly as that seems, in the segregated South that Plessy doesn’t fall further in our rankings. But I’m comfortable putting it ahead of the next two legal abominations.
2) Korematsu v. U.S. 1944
Chief Justice Hugo Black wrote for the Court that the government’s need to protect itself from spies outweighed the civil rights of Fred Korematsu and other innocent Americans of Japanese ancestry. The Court also ducked the chance to address the myriad other civil rights violations that marked the internment of Japanese Americans during World War II. Solicitor General Charles Fahy was later found to have withheld evidence from the Supreme Court that led to this shameful ruling.
1) Dred Scott v. Sandford 1857
In perhaps the Court’s most infamous case, Dred Scott, who was born a slave but brought to live in several states where slavery was illegal, was not only returned to slavery by the Court, but held to have no rights as he and all Americans of African descent were not citizens, contrary to the laws of several states and the federal Missouri Compromise. I think the Court’s ineptitude speaks for itself in this case.
Dishonorable Mentions- Any of Sandra Day O’Connor’s convoluted redistricting decisions, or any of her opinions containing multipart “balancing tests”, and any of the Court’s capitulations to the New Deal following FDR’s Court Packing Scheme.
For more, I’d suggest Robert Levy and William Mellor’s Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.
Disclaimer: The author is not a lawyer, nor has he ever played one on TV. He has never attended law school, or had any formal legal training whatsoever. He is however literate, and this ability to read the Constitution gives him an unfair advantage over several former and current Supreme Court justices.
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