During my summer internship at CEI, a couple of us interns discussed the book Cato’s Robert Levy published last May, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. We looked at Levy’s list of the worst decisions and sent each other lists of our own. Now that I’m taking ConLaw, I feel as though the time has come to post my lists of the twelve worst and the twelve best Supreme Court decisions of all time. It is by no means an exhaustive list. My inclusion of different cases than Levy does not indicate that I disagree with his assessment that those decisions are terrible – just maybe not as bad as the ones I select.
- The Slaughter-House Cases (1873). The very worst decision ever made by the US Supreme Court. Eviscerated the 14th Amendment only five years after its adoption. It is best known for reading the Privileges or Immunities Clause, which was supposed to be (and could have been) a vehicle for both incorporation and unenumerated rights, out of the Constitution. But it also wrote out the Due Process Clause and the Equal Protection Clause, though those two clauses eventually crawled back into existence, to a degree.
- Katzenbach v. McClung (1964). It was tough to decide which of the various cases reading the Commerce Clause expansively enough to permit Congress to pass any law it desires, thus destroying the basis of the federal government as one of defined and limited powers to include. But McClung seems to be the most expansive in both its result and its holding.
- West Coast Hotel v. Parrish (1937). Abdicated the Supreme Court’s responsibility to prevent states from violating “economic” rights. Unlike the Commerce Clause cases, which were weakly limited by Lopez and Morrison, the freedom of contract cases have never recovered from Justice Roberts’ despicable “switch in time.”
- Dred Scott v. Sandford (1857). The Court almost always does a good thing when it invalidates a law as being unconstitutional. Not here, where Chief Justice Taney overturned the Missouri Compromise with its promise of some limitations on slavery, relying on a ridiculous, convoluted, and racist reading of the Constitution as mandating that all African-Americans forever be treated as property. Chief Justice Hughes was right to call it a “self-inflicted wound,” as it resulted in the stigmatization of the Court’s role in deciding the constitutionality of laws, in particular on substantive due process grounds.
- Korematsu v. United States (1944). Held that the government could lock thousands of U.S. citizens in concentration camps because of military necessity. Introduced “strict scrutiny,” while demonstrating its patent inadequacy. On the plus side, Jackson’s and Murphy’s dissents are some of the best ever written.
- United States v. Carolene Products (1938). Typical case of the post-’36 era ignoring the Court’s responsibility to decide the constitutionality of laws. But Footnote Four made it even worse. Justice Stone introduced the idea of levels of scrutiny, claiming that it was fine in some cases for the Court to abdicate its role as the arbiter of the Constitution but less so in others. Made “economic” rights count less than other rights – and ensured that no right would ever be upheld just because the Constitution guaranteed it. Rather, the Court should uphold unconstitutional laws as long as the legislature had a really good reason (only a not-totally-insane reason in other cases) for passing it.
- Plessy v. Ferguson (1896). The Court decide that separate “but equal” was fine, and so refused to overturn blatantly unconstitutional Jim Crow laws for generations.
- Shelley v. Kraemer (1948). The 14th Amendment – and the rest of the Constitution – impose limitations on what the government may do; that’s both in the text and the nature of what a constitution is. Shelley v. Kramer eviscerated the “No State shall…” language of the 14th Amendment, by invalidating private contracts as in violation of the Amendment.
- City of Boerne v. Flores (1997). Bad for two reasons. First, it overturned the “ratchet” interpretation of Section 5 of the 14th Amendment given by Katzenbach v. Morgan, thus holding that Congress cannot prevent states from violating any rights the Court hasn’t already said the states can’t violate. Second, the particular law it overturned was the Religious Freedom Restoration Act, designed to restore Sherbert v. Verner‘s interpretation of the Free Exercise Clause over the Court’s interprtation of it in Employment Division v. Smith, where the Court held that laws of general applicability can constitutionally prohibit the free exercise of religion.
- Home Building & Loan Association v. Blaisdell (1934). Abandoned the Contract Clause, upholding a state law impairing the obligation of creditors to pay their debts.
- Chevron v. NRDC (1984). Introduced “Chevron deference,” allowing administrative agencies to decide what the law is for themselves. Though higher courts review lower courts’ legal determinations de novo, administrative agencies get a much broader say in what the law is.
- Buck v. Bell (1927). Justice Holmes upheld forced sterilization of the mentally ill, saying “three generations of imbeciles are enough.”
- Marbury v. Madison (1803). Got the Court in the business of overturning unconstitutional laws, thus making the Court the best of the three branches (for it can pass no laws of its own, merely decline to enforce bad ones made by the others).
- Lochner v. New York (1905). Lochner was not the first, the last, or the strongest case enforcing the Due Process Clause of the 14th Amendment to prevent states from passing laws restricting freedom of contract. But it has served as the icon of the era, probably because of Holmes’ dissent. The Court held that a person who wants to work more than a certain number of hours can do so, in spite of state protectionist legislation to the contrary.
- United States v. E.C. Knight (1895). Pointed out that the Commerce Clause only allows Congress to “regulate commerce… among the several states,” not manufacturing of products which then go out of state.
- Griswold v. Connecticut (1965). Overturned anti-contraception laws. The justices varied in their reasoning. Douglas’s majority spoke of “penumbras” around enumerated rights. Harlan spoke of substantive due process (an interpretation later ratified in Lawrence v. Texas). But the best was Goldberg’s concurrence, invoking the totally-neglected Ninth Amendment and arguing that it serves as an interpretative guide for the Constitution, saying that rights should be read expansively.
- Brown v. Board (1954). Overturned Plessy and got the Court involved in overturning state laws violating civil rights.
- Reynolds v. Sims (1964). Following in the wake of Baker v. Carr, the Court held that states could not deprive their citizens of equal votes by screwy districting.
- Mapp v. Ohio (1961). Introduced the exclusionary rule to the states, putting some teeth into the Fourth Amendment.
- United States v. Butler (1936). Limited the Taxing and Spending Clause by holding that Congress couldn’t use it as “a means to an unconstitutional end,” namely the regulation of intrastate activities.
- West Virginia v. Barnette (1943). Justice Jackson’s well-written majority opinion overturned state laws forcing saluting the flag, thus allowing religious freedom for Jehovah’s Witnesses and expanding speech rights.
- Schechter Poultry v. United States (1935). Applied EC Knight to police the Commerce Clause, but also held that Congress could not delegate lawmaking authority to administrative agencies.
- Reno v. ACLU (1997). Applied strict scrutiny to laws infringing freedom of speech on the Internet and overturned the bad parts of the Communications Decency Act (leaving the good Section 230 safe harbor provision).
- Engel v. Vitale (1962). Overturned state official-led school prayer and got the Court into policing the Establishment Clause in a meaningful way.