Tuesday, February 14, 2023
Topic: politics
Content Type: Opinion
Keywords:
Supreme Court
Supremely Bad Decisions
Recently "Poli-Sci Twitter" ran a poll on the worst Supreme Court decisions of all time. The results are simultaneously illuminating and alarming. There's an obvious recency bias and left-leaning political bias in the results.
- Citizens United v. FEC
- Korematsu v. United States
- Shelby County v. Holder
- Marbury v. Madison
- Buck v. Bell
- Dred Scott v. Sandford
- Bush v. Gore
- West Virginia v. EPA
- Burwell v. Hobby Lobby
- Plessy v. Ferguson
- Williams v. Mississippi
- Chae Chan Ping v. United States
- Dobbs v. Jackson Women's Health
- San Antonio v. Rodriguez
Luke Thompson on Twitter briefly (over-)summarized the cases, but a clearer, objective summary would be very beneficial.
| Rank | Case (Year) | Legal Issue Decided | Practical Effect |
|---|---|---|---|
| 1. | Citizens United v. FEC, (2010) | 1st Amendment applies to corporations | Corporations (and unions) could contribute to political campaigns. |
| 2. | Korematsu v. United States, (1944) | Greenlit internment of Japanese during WWII | |
| 3. | Shelby County v. Holder (2013) | Federal government cannot grant itself right of refusal of state election law based on out-of-date conditions. | States no longer had to get approval from federal government for changes in voting laws based on 1965 demographics. |
| 4. | Marbury v. Madison, (1803) | Supreme Court has power of judicial review | Supreme Court can declare laws unconstitutional |
| 5. | Buck v. Bell (1927) | Compulsory sterilization is constitutional | Legalized eugenic sterilizations across the country. |
| 6. | Dred Scott v. Sandford (1856) | African-Americans are not entitled to citizens' rights granted by Constitution | |
| 7. | Bush v. Gore (2000) | Different standards of counting ballots across Florida violated Equal Protection Clause | Ended the 2000 Florida recount, leaving Bush the victor |
| 8. | West Virginia v. EPA (2022) | Without explicitly legislated power, agencies cannot impose "major" economic regulation | EPA could not force power plants to procure electricity from other plants they didn't already control. |
| 9. | Burwell v. Hobby Lobby (2014) | Religious owners of commercial institutions' 1st amendment rights dominate government's socio-economic legislation | Hobby Lobby didn't have to pay for contraception for its employees |
| 10. | Plessy v. Ferguson (1896) | Segregation is constitutional as long as accommodations are equal | Legalized segregation |
| 11. | Williams v. Mississippi (1898) | Poll taxes, literacy tests, and other superficially equal restrictions on voting were legal | Allowed for the disenfranchisement of African Americans |
| 12. | Chae Chan Ping v. United States (1889) | Gave federal government substantial power to set immigration policy, even overriding treaties | |
| 13. | Dobbs v. Jackson Women's Health (2022) | Roe v. Wade was incorrectly decided | No right to abortion granted by Constitution |
| 14. | San Antonio Schools v. Rodriguez (1973) | Financing schools based on property taxes does not violate the Equal Protection Clause. | Locally-financed schools remained the norm. |
The 14 case list contains 6 decisions from the 2000s, 3 from the 1900s, and 5 from the 1800s While the list spans cases back to 1803, the recency bias is evident. Two of the worse cases of all time happened to come down last year, and the worst case, worse even than the cases that stripped African-Americans of all of their rights, relegated Japanese Americans to internment camps, and allowed for apartheid in the South, was a case that allowed corporations to support political candidates.
The Democratic-tilt is also obvious in this list. Half of the cases (Citizens United, Shelby County v. Holder, Bush v. Gore, West Virginia v. EPA, Burwell, Dobbs, and San Antonio Schools) are cases that curtailed the Democratic-exclusive agenda.
This list was probably produced in response to an analogous list produced by the conservative Law & Liberty organization on the 50th anniversary of Roe v. Wade.
| Rank | Case (Year) | Legal Issue Decided | Practical Effect |
|---|---|---|---|
| 1. | Dred Scott v. Sandford (1856) | African-Americans are not entitled to citizens' rights granted by Constitution | |
| 2. | Roe v. Wade (1973) | Determined a constitutional right to abortion | Invalidated laws banning abortion ensuring its legality nationwide |
| 3. | Plessy v. Ferguson (1896) | Segregation is constitutional as long as accommodations are equal | Legalized segregation |
| 4. | Planned Parenthood v. Casey (1992) | Developed the "undue burden" standard saying abortion restrictions that had the effect of a substantial hindrance to an abortion were unconstitutional | Reduced the scope of Roe v. Wade and allowed abortion bans in the first trimester as long as they met the new standard. |
| 5. | Obergefell v. Hodges (2015) | Declared the right to marriage was guaranteed regardless of sex of spouse, and declared any anti-gay marriage law unconstitutional. | Made gay marriages legal in every state. |
| 6. | Griswold v. Connecticut (1965) | Applied the "Right to Privacy" concept to contraception | Declared any laws banning contraception unconstitutional. |
| 7. | Wickard v. Filburn (1942) | Expanded the definition of interstate commerce to nearly all economic activity | Ushered in a new era of substantial economic regulation |
| 8. | Buck v. Bell (1927) | Compulsory sterilization is constitutional | Legalized eugenic sterilizations across the country. |
| 9. | Korematsu v. United States, (1944) | Greenlit internment of Japanese during WWII | |
| 10. | Lawrence v. Texas (2003) | Used the Right to Privacy from Griswold v. Connecticut to proscribe any laws outlawing sodomy or other sexual activities conducted by same sex couples. | Anti-sodomy laws were declared unconstitutional |
| 11. | Slaughterhouse Cases (1873) | Effectively nullified the Privileges and Immunities clause in the 14th Amendment saying that it allowed states to pass laws restricting rights, as long as those rights were not granted by US Constitution | Granted states enhanced legislative power, narrowing the guaranteed rights of Americans to only those named in Constitution. |
| 12. | U. of California v. Bakke (1978) | Found that racial quotas in college admissions were unconstitutional, but affirmative action was acceptable so long as they pursued a "compelling interest" | Banned racial quotas but permitted using race as one factor among many. |
| 13. | Everson v. Board of Education (1947) | Expanded the scope of the 1st Amendment's restriction on Congress from passing laws regarding the establishment of religion to also apply to state legislatures. | Propagated the "separation of church and state" doctrine and began the unraveling of church and schooling that had been present up to then. |
| 14. | Lochner v. New York (1905) | Recognized a right to contract between individuals (workers and employers) superseded state government's right to regulate | Invalidated NY Law limiting bakers' working hours to 10. |
| 15. | Home Building & Loan v. Blaisdell (1934) | In this case, it permitted Minnesota to grant relief to home-owners with mortgages and delay payment to the banks, despite the contractual terms. Granted states the power to cite an emergency to restrict economic rights | Allowed MN to invalidate terms of a contract due to overarching economic conditions and set in motion a large expansion of these types of interventions. |
| 16. | Lemon v. Kurtzman (1971) | Expanded the Establishment of Religion clause of the 1st Amendment, concluding that a larger range of public funding of religiously-affiliated schools violated it. | Greatly restricted the ability of governments to fund education provided by religious organizations. |
| 17. | Kelo v. City of New London (2005) | Expanded the acceptable uses of eminent domain from being used exclusively to take private property for public use to include taking private property for private commercial use, since that would indirectly benefit the public. | Maybe none. The decision was widely denounced and 37 states passed laws declaring eminent domain could not be used for commercial private benefit, bringing the total to 45. |
| 18. | U.S. v. Carolene Products (1938) | Allowed for strict review of certain economic regulations | |
| 19. | Engel v. Vitale (1962) | Declared state officials writing and encourage resuscitation of prayer in school was unconstitutional. | No School Prayer |
| 20. | Employment Division v. Smith (1990) | State laws regarding employment requirements supersede religious rights | People's ability to claim the right to exercise their religious beliefs is limited. |
Of the 20 cases named here, 3 occurred in the 1800s, 14 in the 1900s (7 after 1950, 7 before), and 3 in the 2000s. Like the previous list, there's clearly some Republican-bias with these. Roe v. Wade, Oborgefell, Planned Parenthood, Lawrence v. Texas, Griswold, and several cases dealing with religion and school.
Other Thoughts
A decision's quality can be judged either by the strength of the legal arguments or the effects it wreaks in society. Dred Scott was disastrous by both standards. Obviously people will disagree over the results of Roe v. Wade (and Griswold), for that matter, but it should not be debated that both were extremely thinly supported decisions on a constitutional basis. In fact, there is widespread agreement across the political spectrum that this was a poorly-reasoned decision.
For many of the conservative cases, I wonder how many are abhorred because of their impact on society or because of their legal reasoning. The U. California v. Bakke case (affirmative action), had a debatable effect on society. I'm not convinced affirmative action really helped African Americans much, but I do believe that that was the intention, which counts for something.
Legally, though, it seems a terrible decision. It is based on a "compelling interest", which seems to just be "anything goes as long as you want something good." There were times that society considered segregation a "compelling interest." It's sloppy reasoning to rely on something so easily applied.
I'm surprised Lochner is on the conservatives' list since it restricted state governments from regulating labor. According to the write-up, the reason is that it created a "right to contract" that didn't exist, not unlike Roe v. Wade created a right to privacy.
In the spirit of Luke Thompson's original tweet, here's a Worst Cases of the Supreme Court Cheat Sheet. (In alphabetical order)
| Case | Incisive Summary | |
|---|---|---|
| Buck v. Bell (1927) | Eugenics allowed - go ahead and sterilize. | |
| Burwell v. Hobby Lobby (2014) | Religious companies don't have to pay for sins (Corporations are People Part II) | |
| Bush v. Gore (2000) | Bush wins 2000 election | |
| Chae Chan Ping v. United States (1889) | The Feds' immigration policy is supreme | |
| Citizens United v. FEC, (2010) | Corporations can give money to candidates (Corporations are people) | |
| Dred Scott v. Sandford (1856) | African Americans will always be slaves | |
| Dobbs v. Jackson Women's Health (2022) | Roe overturned; states can ban abortions again. | |
| Employment Division v. Smith (1990) | You can't break the rules and then claim "religious freedom!" | |
| Engel v. Vitale (1962) | No school prayer | |
| Everson v. Board of Education (1947) | No more catholic schools | |
| Griswold v. Connecticut (1965) | No contraception bans | |
| Home Building & Loan v. Blaisdell (1934) | Gov't has right to rewrite private contracts | |
| Kelo v. City of New London (2005) | Gov't can take your property and give it to someone else | |
| Korematsu v. United States, (1944) | Japanese internment is fine | |
| Lawrence v. Texas (2003) | Gay people can be gay | |
| Lemon v. Kurtzman (1971) | No more catholic schools 2 | |
| Lochner v. New York (1905) | Employees and employers can choose their own working hours without government interference. | |
| Marbury v. Madison, (1803) | Supreme Court gets a veto | |
| Obergefell v. Hodges (2015) | Gay marriage | |
| Planned Parenthood v. Casey (1992) | Abortions Redux | |
| Plessy v. Ferguson (1896) | Segregate! | |
| Roe v. Wade (1973) | Abortions legal | |
| U. of California v. Bakke (1978) | Quotas out, preferences in (Affirmative Action) | |
| San Antonio Schools v. Rodriguez (1973) | Property tax-funded schools | |
| Shelby County v. Holder (2013) | Past racism doesn't permit permanent restrictions; (to Democrats: states can have discriminatory election laws) | |
| Slaughterhouse Cases (1873) | Let's rewrite the 14th Amendment | |
| U.S. v. Carolene Products (1938) | In the future, we'll be more careful | |
| West Virginia v. EPA (2022) | Agencies can only bend the law so far. | |
| Wickard v. Filburn (1942) | Everything is interstate commerce! | |
| Williams v. Mississippi (1898) | Let's find tricky ways to prevent African Americans from voting. |