Worst Three SCOTUS decisions.
Casey Taylor ·
Jan 24, 2011 at 1:04pm
What do y'all think (yes, I have the South in my mouth) are the worst three decisions handed down by the Blackrobes, and why? I'll start:
1.) Plessy v. Ferguson gave us 'separate but equal', and everything that entailed;
2.) Roe v. Wade legalized abortion nationwide and imposed it on the States with no thought to defining human life and rights, and when those begin;
3.) Kelo v. City of New London, CT, took the concept of eminent domain and distorted it beyond all reason and recognition, in the process reversing the roles of government and governed.
What do you think?
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Re: Worst Three SCOTUS decisions.
So what then counts as a bad decision? I would offer two key characteristics. The first is the weakness of the reasoning. The second is the seriousness of the results. On that score, the federalism case is either NLRB v. Jones & Laughlin Steel Co. which upheld the National Labor Relations Act, or Wickard v. Filburn, which upheld portions of the agricultural adjustment act. The profound expansion of federal power is surely one of the great stories of the 20th Century.
My last opinion would go to individual rights, but would not be Kelo v. City of New London, bad as it might be. The difficulty here is that takings for public use can attract the attention, but the real peril in the property rights and land use area is regulation without compensation, which happens a million times for each public use abuse. So my nominee would be Village of Euclid v. Ambler Realty co., from 1926, which essentially gave a full pass to all land use regulation on facts that were highly favorable to the landowner. It was by a “conservative” Justice, George Sutherland, and introduced across the board low levels of scrutiny for highly questionable state and federal regulations.
Edited on Jan 24, 2011 at 11:58amRe: Worst Three SCOTUS decisions.
For a list of 12 such cases from the libertarian perspective, see Robert A. Levy & William Mellor, The Dirty Dozen, to which I wrote the Preface, and more importantly, P.J. O’Rourke wrote the blurb.
Dec '10
Re: Worst Three SCOTUS decisions.
It's really hard to decide between the excellent selection of horrible cases presented. However, while reading the Kelo decision for a class I actually contemplated changing my major from polisci because I felt like I was going to stroke out while reading it. Then I got my escrow statement and remembered that I don't actually own any property anyway. I only lease it from the county.
Edited on Jan 24, 2011 at 12:03pmRe: Worst Three SCOTUS decisions.
I have long wondered about Dred Scott v. Sandford. If that decision had gone the other way, the proper way, could the United States have found a way to end slavery peacefully? Would war have been necessary in any event or could we have agreed to something similar to Britain's Slavery Abolition Act of 1833?
Jan '11
Re: Worst Three SCOTUS decisions.
I hate to be categorical, but every time I see an opinion by Justice Brennan I reach for my wallet.
May '10
Re: Worst Three SCOTUS decisions.
Obviously I cannot speak with Prof. Epstein's specificity and erudition, but I would nominate any cases in which the Court weakened the Commerce Clause and opened the door to Federal government regulation of intrastate economic activity. There is in my opinion a direct line from those cases to the essential tyranny of Obamacare.
Oct '10
Re: Worst Three SCOTUS decisions.
Richard Epstein:
It was by a “conservative” Justice, George Sutherland, and introduced across the board low levels of scrutiny for highly questionable state and federal regulations.
I didn't realize regulatory strangulation had such a long history! I've become increasingly worried, not just about the burden of regulations, per se, but about the routine practice of Congress handing off the writing of de facto law to Executive Branch regulators who inevitably enlarge their domains. We now have a regulatory czar!
I would be very interested to know if you think this has implications with regard to separation of powers issues which could be remedied, and if the propriety of a building a huge body of unlegislated, but legally binding, regulations outside of Congress has ever been seriously challenged (i.e. not just the propriety of specific regulations). Things seem to be coming to something of a head with the EPA and the FCC, but I'm wondering if there's any hope of changing the underlying trajectory.
Dec '10
Re: Worst Three SCOTUS decisions.
Roe v Wade is hard to beat. Not only in its inconceivably evil impact but in the wholly illegitimate means by which it was decided. Well down the list but a stealth candidate - and gift from the Court which hasn't been fully unpacked yet - is Lawrence v Texas.
Sep '10
Re: Worst Three SCOTUS decisions.
If you want a decision that was basically put together from whole cloth, as opposed to being constituted in our foundational law or responding to recent legislation, please consider Engel v. Vitale. Potter Stewart’s lone dissent (was he the only one listening to the arguments?) nails it.
Nov '10
Re: Worst Three SCOTUS decisions.
Have had the pleasure of reading Robert A.Levy & William Mellor's book The Dirty Dozen and the good fortune to hear these notable scholars discourse publicly on the implications of Kelo. They make the following irrefutable point:
"The Kelo decision opened the floodgates of abuse, spurring local governments to press forward with more than 117 projects involving the use of eminent domain for private development in just one year."
Aug '10
Re: Worst Three SCOTUS decisions.
Exactly. This gets lost because the result wasn't very contentious -- I mean most people don't see anything wrong with a married couple using birth control and fewer still think it should be illegal. However it set the precedent that led to pretty directly to Roe and ironically Roe was the less preposterous jurisprudence given that it could stand on Griswold.
Similarly, I was delighted with Lawrence v Texas as a policy matter but think it was pretty awful as a matter of jurisprudence and a very dangerous precedent for all the reasons discussed in Scalia's dissent. (btw, the next time a liberal talks about the importance of stare decisis, keep in mind that Lawrence overruled a decision that was only 17 years old).
Aug '10
Re: Worst Three SCOTUS decisions.
Casey Taylor:
3.) Kelo v. City of New London, CT, took the concept of eminent domain and distorted it beyond all reason and recognition, in the process reversing the roles of government and governed.
I believe you mean Berman v Parker (1951). By the time Kelo reached the court, eminent domain jurisprudence was already as toothless as commerce clause jurisprudence. Kelo was not so much a bad precedent as a foregone opportunity to reverse bad precedent.
Edited on Jan 24, 2011 at 4:54pmJul '10
Re: Worst Three SCOTUS decisions.
A little heresy if I may:
1. In my amateur opinion, Kelo was rightly decided. The action at issue was execrable. But it is not the Supreme Court's job to define what "public purpose" means. That is precisely what democratic institutions must decide. This is the temptation of judicial activism: we see a wrong perpetrated, and we find a reason for the Court to overturn it. That's not the Court's job. It is the legislature's job.
2. Related, and really heretical: Brown v. Board of Education belongs in the top five. For the same reason as #1. It was a substantive triumph in that it righted a horrible wrong. But it was a procedural disaster that set the table for almost every horrible decision of the last 50 years. Much as with Roe, I believe that by "forcing" an inorganic decision and forestalling social evolution, Brown probably set the cause of racial integration back in the doing run.
Dec '10
Re: Worst Three SCOTUS decisions.
Stare decisis is a Latin phrase meaning "perpetuating stupidity."
In reality, though, it's a one-way ratchet.
Jun '10
Re: Worst Three SCOTUS decisions.
...and THIS is why I belong to Ricochet. You people are amazing.
Jul '10
Re: Worst Three SCOTUS decisions.
Hard to argue with any of the nominations here, but personally, I've always had a sore spot about Arizona v. Hicks. It just epitomizes the thwarting of sharp-eyed police work by dumb hair-splitting legalism.
Also US v. Haynes, which basically makes armed felons exempt from gun registration laws (yes, those laws are stupid in and of themselves, but that's another issue). Grrr.
May '10
Re: Worst Three SCOTUS decisions.
Planned Parenthood vs. Casey, anyone?
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."
Aug '10
Re: Worst Three SCOTUS decisions.
As I see it, Romer v. Evans argued that the will of the people of Colorado had to be set aside because their votes sprang from illegitimate, i.e. religious, convictions. In Perry v. Schwarzenegger, the judge sets aside the will of the people of California because the only reason the judge could see for their votes was an unsupported animus towards a group of citizens.
These don't rise to the top of the list of bad decisions, but like some of the worst decisions listed above, the problem is not really the outcome of the decisions, but instead the arguments used to support the decisions: here they undermine the concept of a free, self-governed people. Your votes count only if your betters decide that you voted for the right reasons.
Dec '10
Re: Worst Three SCOTUS decisions.
Fantastic discussion. Now to tie it all together, and possibly ruin it, by invoking Star Trek. In "The Wrath of Khan" the philosophical point was beaten to death that "the needs of the many outweigh the needs of the few or the one." All of the cases discussed boil down eventually to supporting this supposition. Most of us would agree that in extreme situations the balance of liberty will come down to basic math and body counts. That was the point made when Spok sacrificed himself. The big difference between the movie with its high ideal and the cases we all agree are terrible is in who makes the decision for the sacrifice. The moral of the story would have been completely different if Kirk and the crew were the ones who decided to sacrifice Spok. All of these cases essentially do just that.
Jan '11
Re: Worst Three SCOTUS decisions.
Did the SCOTUS rule on our Social Security contributions? It was my belief that the SCOTUS ruled that our contributions belonged to the government and we could not get a refund, nor was a retirement check guaranteed regardless the amount one had contributed. Am I ill informed on this issue?
Later today I plan to use Stare Decisis in a sentence to impress my friends.