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Supreme Court Decisions The Worst Supreme 10Court Decisions By M. Kelly Tillery n April 9, 2010, just 11 days before his 90th birthday, U.S. Supreme Court Justice John Paul Stevens gave notice of his O retirement which will allow President Obama to appoint a second Supreme Court Justice less than two years into his first term. The nominee, Solicitor General Elena Kagan, will certainly endure lengthy, probing and sometimes inane examination in Senate confirmation hearings. Since nominees are often asked about past Supreme Court decisions and, if confirmed, will be asked to wrestle with monumental legal issues, perhaps an examination of how previous Supreme Court justices sometimes got it so wrong and did so much damage might be valuable for all. Only111humanbeingshaveservedonthenation’shighest U.S.113(1973)[legalizationofabortion]orKelo v. City of courtsinceitscreationonSept.24,1789bythefirstJudiciary New London545U.S.469(2005)[eminentdomaintakingfor Act.One-hundrednine(98percent)ofthoseunelectedjurists privatedeveloper].Afterselectionbaseduponthesecriteria have been white, only twoAfrican-American.All men (97 of my own design, I discovered, somewhat to my surprise, percent),exceptthreewomen. AllChristian(93.6percent), an interesting and disturbing common theme. Each one, as exceptsevenJews. shallbeseen,involvedtheshameful,disdainfultreatmentby From its first case, the uneventful and purely procedural thepowerfulofminoritiesandtheirrights.Andineach,the West v. Barnes,2U.S.401(1791),toitsmostrecentproviding courtsidedwiththepowerful,consigningtheminorityoften FirstAmendmentprotectionfor“crushvideos”(ifyouhave togenerationsofabuseand/ordenialoffundamentalrights. toask,youdonotwanttoknow),United States v. Stevens, Ineach,unbiasedobserversagreethatthedecisionsadversely 08-769(4/2/2010),thecourthasissued impacted millions for several and almost25,000opinions.Ofthose,some sometimesmanygenerations. are very brief, others quite lengthy, Onlyonewasa5-4decision.Four some are erudite, others are crude, were unanimous. Seven deal with somearemundaneandothersareawe- lawsofthestatesoftheDeepSouth. inspiring. And some are really, really Each one, as shall All, but one, were decided by all bad. Not just in style or language, be seen, involved whitemenover50yearsofage.Some but in principle, holding and, most majority opinions were by legendary importantly,intheeffectonmillionsof the shameful, justices, such as Oliver Wendell lives. HolmesJr.,somebyracistideologues While there is disagreement based disdainful treatment such as Roger B. Taney, and some mostly on extremes in ideology and/ by rightfully unheralded journeymen orreligiousbelief,thereappearstobe by the powerful of such as George Sutherland. Size legalandhistoricalscholarlyconsensus minorities and did not seem to matter. Dred Scott on a number of opinions that are the producedthelongestopinionsat234 “worst.” Sincetherearemorethan10, their rights. pagesandPacetheshortestattwo. honing the list down to the “Top 10” While the majorities in each case isnoteasyorsimple,butIhavetried, seemedtonedeaftothefundamental acknowledgingthatothersmaydisagree wrongheadedness of their decisions, withoneormorebeingincludedorfeel atthetimeofeachtherewasalways Ihaveomittedoneormoreoftheir“favorites.” a small, but often vocal, minority of individuals, lawyers, I have tried to include those cases that (a) dealt with academics and organizations who recognized that the court fundamentalissuesimportanttosocietyasawhole,(b)had haddonethewrongthingandwouldinevitablyenduponthe a profound effect on a large number of people for a long wrongsideofhistory. Sometimesvindicationtookaslittleas time and (c) were ultimately overruled and/or rendered a afewyears,sometimesalmostacentury. nullity by subsequent decision, legislation, constitutional A review of this list may also inform and enlighten amendmentand/orcommonconsensus.Thus,thelistcannot as to where the court is going and/or should go on such includedecisionsthatwerejustdumb,likeFCC. v. Pacifica timely and difficult issues as same-sex marriage, Perry v. Foundation,438U.S.726(1978)[upholdingbanonbroadcast Schwarzenegger,N.D.CA.,cv-09-2292,orArizona’s“Papers, of George Carlin’s famous “seven words you can’t say on please.” immigration law, which are likely to land on the radio”],orhighlycontroversialoneslikeBush v. Gore,531 court’sdocketinthenot-so-distantfuture. U.S.98(2000)[2000presidentialelection],Roe v. Wade,410 Andthe“winners,”inchronologicalorder,are: the philadelphia lawyer Summer 2010 15 Dred Scott v. Sandford,60U.S.393 inthe“StolenElectionof1876”–yes,therewasonebefore (1857) [actually, “Sanford”, but a 2000),struckdownasunconstitutionaltheCivilRightsAct clerk’s error altered this infamous of1875,whichwasenactedtoensureequalaccessforall,no slaveowner’sname] matterwhattheirraceorcolor,to“inns,publicconveyanceson Majority Opinion: Chief Justice landorwater,theatresandotherplacesofpublicamusement.” RogerB.Taney Indissent,JusticeJohnMarshallHarlanopinedthattheActs Vote: 7to2(JusticesJohnMcLean werewellwithinthepowerofCongress,includingunderthe andBenjaminR.CurtisDissenting) CommerceClause. OverruledBy: 14thAmendment,Section1(1868) Almost a century later, the court would uphold a similar Thisis,ofcourse,the“MotherofAllBadSupremeCourt CivilRightsActinHeart of Atlanta Motel,utilizingmuchof Decisions.”Eventhemostrabid“strictconstructionist”and thereasoningof“TheGreatDissenter.” themostbleedingheartliberalwillreadilyagreethatthisone meritsinclusion. Pace v. Alabama, 106 U.S. 583 Thecourt,peroctogenarianChiefJusticeTaney(pronounced (1883) Tawney),theoriginal“originalist,”heldthatMr.DredScott MajorityOpinion: JusticeStephen wasaslaveandnotacitizenoftheUnitedStatesasthatword Field isusedintheConstitution,andthushadnostandingtosue Vote: Unanimous his owner in a federal court for his freedom and/or for the Overruled By: Loving v. Virginia, freedom of his wife, Harriet, and their children, Eliza (14) 388U.S.1(1967) andLizzie(7).In20,000wordsoftorturedlogicandfaulty Theheartlesscourt,inabarrentwo-pagedecision,upheld legalhistory,Taneycondemnedanentirefamilytoservitude theconvictionsofTonyPace,anegromanandMaryT.Cox, becausethecourtfoundithadnojurisdiction. awhitewoman,whohadbeenfoundguiltyofviolationofan I have read a great deal about slavery inAmerica, from Alabamalawthatprohibitedmarriage,adulteryorfornication HarrietBeecherStowe’siconicUncle Tom’s Cabin(1852)to between“anynegro”and“anywhiteperson.”Eachhadbeen KennethM.Stampp’sclassicThe Peculiar Institution(1956), sentencedtotwoyearsinthestatepenitentiary.JusticeField, but I have never felt the chill of governmental indifference inacleverfeatoflegallegerdemain,heldthatthestatutedid to the then 4 million-plus human beings in bondage until I not violate the 14th Amendment Equal Protection Clause readthisopinionofourhighestcourtasitsoblithelyturned becauseit,infact,treatedwhitesandnegroesequally–both the freedom of a man and his family into a matter of civil races were prohibited from marrying, cheating with, and procedure. fornicatingwiththeother. Eightyyearslater,theWarrenCourtwoulddisagreeinthe United States v. Cruikshank, 92 aptly named Loving v. Virginia, establishing not only that U.S.542(1875) lawsagainstinterracialmarriageareunconstitutional,butthat Majority Opinion: Chief Justice Virginiareallyisforlovers. MorrisonR.Waite Vote: 8to1(JusticeNathanClifford Plessy v. Ferguson, 163 U.S. 537 Dissenting) (1896) The Civil Rights Cases,109U.S.3 MajorityOpinion:JusticeHenryB. (1883) Brown MajorityOpinion: JusticeJosephP.Bradley Vote: 7to1(JusticeJohnM.Harlan Vote: 8to1(JusticeJohnM.HarlanDissenting) Dissenting) Overruled By: Civil RightsAct of 1964 – Upheld Overruled By: Brown v. Board of inHeart of Atlanta Motel, Inc. v. U.S.,379U.S.241 Education,347U.S.483(1954) (1964) Though known for little else, former Detroit corporate Althoughseparatedbysevenyears,thesetworelatedcases lawyer Justice Henry Billings Brown bequeathed to shareaspotsincetheyconcern,respectively,thecriminaland generations of Americans the insidious “legal” concept of civilabandonmentbythecourtofnegrocitizensintheSouth “separate but equal.” The court held that enforcement of a toJimCrowandtheKKKforalmostacentury.InCruikshank, Louisianastatutethatrequiredrailwaycompaniestoprovide acasearisingfromtheColfaxMassacreof1873whenalmost andpolice“equal,butseparateaccommodationsforthewhite 100negromenweremurderedbyanorganizedgroupofwhite and colored races” did not violate either the 13th or 14th meninLouisiana,thecourtheldthattheU.S.couldnotcharge Amendment.HomerPlessyhadchallengedracialseparation theaccusedwithviolationsoftheCivilRights’Enforcement inpublictransportation63yearsbeforeRosaParks.Justice Actof1870(“TheKuKluxKlanAct”).Inonefellswoop, Harlan,inabrilliantandbitterdissent,statedpresciently,“In thecourteffectivelyemasculatedalleffortsoftheU.S.touse myopinionthejudgmentthisdayrenderedwill,intime,prove federalcriminallawtorestraintheabusesoftheKKKand tobequiteasperniciousasthedecisionmadebythistribunal similar groups throughout the South. One hundred years of intheDred Scottcase.”Itwouldtake58years,theeloquence lynchings,murder,abuseandmayhemwouldfollow. ofNAACPCounselThurgoodMarshallandthepoliticalskills Likewise,inTheCivil Rights Cases,thecourtviaJustice ofChiefJusticeEarlWarrenforthecourttooverrulethisvile Bradley(formerrailroadlawyer,alreadyinfamousforbeing conceptunanimously. the deciding vote that made Rutherford B. Hayes president 16 the philadelphia lawyer Summer 2010 1. Dred Scott v. Sandford 6. Lone Wolf v. 2. United States v. Hitchcock, Cruikshank
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