Ten Worst SCOTUS Decisions Ever

4:09 PM

A hallmark of a vital democracy is mature public conversation, often the antithesis to the coarseness of contemporary presidential campaigns. I offer the following list of worst Supreme Court decisions to introduce some context into the nearsightedness that often belies our judgment about our actual circumstance. We are nearsighted in that we often see recent events in a larger-than-life proportion compared to those further back.

 Since its inception with the in 1789, only 112 persons have served on the nation’s highest court. One-hundred ten (98.2 percent) of those unelected jurists have been white, only two African-American. All men (96.4 percent), except four women. All Christian (93.6 percent), except eight Jews. In more than 225 years, from the first Supreme Court, presided over by Chief Justice John Jay, to the current court of Chief Justice John Roberts, the jurisprudence has ranged from inspired to banal. I am neither a lawyer nor have I played one on television, but I think simply raising the question is important. I'd also really appreciate your participation. Below, I have prepared a list of a handful of Supreme Court decisions that rate in my mind as the "worst" decisions ever. I have added some "dishonorable mentions" as well. In the comments section below, I'd really like to hear your feedback. Do you agree? Are there other cases that you would add? Please, explain why you hold the position that you do. Please, treat other commentators with respect and courtesy, even if there is a difference of opinion.

To avoid "nearsightedness," I have not included any decisions from the past ten years. In other words, cases criticized by the left or the right, including Citizens United v. Federal Election Commission (2010), National Federation of Independent Business v. Sebelius (2012), Obergefell v. Hodges (2015), King v. Burwell (2015), among others, are excluded as we do not have sufficient time to evaluate their impact one way or another.

So, herewith, I present a list, in no particular order, of worst Supreme Court decisions:
  • Plessy v. Ferguson, 163 U.S. 537 (1896). This case established the “separate but equal” doctrine that pervaded life in the American South for more than fifty years. In 1892, Homer Plessy, only 1/8 black (he had an African American great-grandmother),  “passed” as white, but Plessy was legally considered black in the State of Louisiana.  The Citizen’s Committee (a local political group) asked Plessy to help them challenge the newly enacted Separate Car Act, a Louisiana statute that separated blacks from whites in railroad cars. The penalty for sitting in the wrong car was either 20 days in jail or a $25 fine. Plessy agreed, and purchased a first-class ticket on the train to Covington, Louisiana. He took a seat in the “Whites Only” car and waited for the conductor. When the conductor arrived, Plessy informed him that he was 1/8 Black and that he was hereby refusing to move to the “colored” car. The conductor called the police and had Plessy arrested immediately; he spent the night in the local jail and was released the next morning on bond. The court set the precedent that "separate" facilities for blacks and whites were legal so long as they were "equal." The doctrine of "separate but equal" was a fiction, as facilities for blacks were always inferior to those for whites.
  • Dred Scott v. Sandford, 60 U.S. 393 (1857). Dred Scott, a slave in Missouri, resided in Illinois (a free state) from 1833 to 1843, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott, after an unsuccessful suit in Missouri courts seeking his freedom, then brought a suit in federal court. The court ruled that slaves were not citizens of the United States and, therefore, could not expect any protection from the Federal Government or the courts. The court also ruled that Congress had no authority to ban slavery from a Federal territory, moving the nation a step closer to Civil War.
  • Korematsu v. United States, 323 U.S. 214 (1944). This landmark case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II. In a 6-3 decision, the Court sided with the government, ruling that the exclusion order was constitutional. In Korematsu, SCOTUS upheld a system that deprived American citizens of their life, liberty, and property solely on the basis of their ancestry.
  • Bowers v. Hardwick, 478 U.S. 186 (1986). Here, the Supreme Court ruled that the Constitution does not protect the right of gay adults to engage in private, consensual sodomy. This decision was overturned by Lawrence v. Texas (2003), which some have compared to Brown v. Board of Education for LGBT rights. Likely, it would not be too difficult to show that today's victories in LGBT rights are, to some part, a consequence of this decision.
  • The Slaughter-House Cases, 83 U.S. 36 (1873). In 1869, amid bribery, the Louisiana legislature created a 25-year monopoly for slaughtering livestock. The butchers who lost their livelihoods challenged the law as a violation of the 14th Amendment. In a 5-4 decision, then extremely rare, the Supreme Court upheld the monopoly. The decision held that "privileges or immunities" encompassed only those rights expressly recognized by the original Constitution, such as access to foreign commerce and navigable waters, habeus corpus, and freedom of movement from state to state, but it excluded the Bill of Rights and economic liberties. It rendered inconsequential, to this day, section one of the Fourteenth Amendment. Undoing this decision remains unfinished business. 
  • Roe v. Wade, 410 U.S. 113 (1973). I am a Catholic, and I have a whole set of very important reasons to oppose this decision. However, from what I have read, no legal scholar believes that the Court got this one right. Even those who tend to agree with abortion in general offer criticism of the decision itself. For instance, Justice Ruth Bader Ginsburg has offered pointed criticism of the decision repeatedly. This decision prompts the largest annual protest in Washington related to a supreme Court decision. Support or opposition to the decision has become a litmus test for our two major political parties. I believe that it has poisoned the political process and weakened democracy in the U.S. for more than 40 years.
  • Bush v. Gore, 531 U.S. 98 (2000). Even if one supported Bush, it is worth stepping back from the politics briefly to observe this decision as a unique moment in American history: the only time in which the U.S. Supreme Court has played a direct role in deciding a presidential election. It seems to me that the Supreme Court ought not render "non precedential opinions" and ought not exercise its authority to declare an election victor.
  • Santa Clara County v. Southern Pacific Railroad Company, 118 US 394 (1886). It was this case where the Supreme Court ruled that the Fourteenth Amendment gave corporations the same, or very nearly the same, access to the Bill of Rights as human beings have. The claim about the nature of corporations was not in the decision but in a headnote to the decision written by a clerk, which the opinion does not explicitly state.
  • United States v. Cruikshank, 92 U.S. 542 (1875). The Court annulled the convictions of three men growing out of a massacre in Colfax, Louisiana, in which a white mob killed almost 300 African Americans who were defending a local courthouse, many after the freedmen had surrendered. Specifically, a contingent of whites led by William Cruikshank murdered most of the prisoners, probably between twenty-eight and thirty-eight. James Gray Pope authored a powerful examination of the decision.
  • McCleskey v. Kemp, 481 U.S. 279 (1987). Convicted of murdering a police officer in Georgia and sentenced to death, attorneys argued for Warren McCleskey, a black man, that a complex statistical study (the Baldus study) proved that the imposition of the death penalty in Georgia depended to a significant extent on the race of the victim and the accused. Unsurprisingly, the study found that black defendants who kill white victims are the most likely to receive death sentences in the state. The Court held that since McCleskey could not prove that purposeful discrimination which had a discriminatory effect on him existed in this particular trial, there was no constitutional violation. Lewis Powell would be among those expressing doubts. Just months after he wrote the majority opinion, Justice Lewis Powell retired from the Supreme Court, who later confided to his biographer that given the chance he would have changed his vote in McCleskey and, indeed, "in any capital case." His regrets came too late, because  the State of Georgia executed Warren McCleskey on September 25, 1991. Today, the decision effectively acts as a substantial barrier to the elimination of racial inequalities in the criminal justice system, perpetuating an unfair racial imbalance that has come to define criminal justice in America.
Dishonorable mentions: Lochner v. New York (1905), Adkins v. Children’s Hospital (1923), Schenck v. United States (1919), United States v. E.C. Knight Company (1895), Hammer v. Dagenhart (1918), Adair v. United States (1908), Pollock v. Farmers’ Loan & Trust Co. (1895).

Again, I'd appreciate hearing your commentary about Supreme Court decisions. Be mindful of my request for respect and courtesy.

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