Comments on: Best and Worst Supreme Court Decisions

By: Property as Privacy: The Old Supreme Court Did It Better

Property as Privacy: The Old Supreme Court Did It Better — Sat, 11 Sep 2010 05:42:13 +0000

[...] unlike many FedSocers, I love the Warren Court and its expansion and constitutionalization of personal liberties both procedural [...]

By: Wes Montgomery

Wes Montgomery — Sat, 19 Dec 2009 12:49:26 +0000

I just wanted to add… I feel that Levy focuses too much on the outcome of the individual cases rather than long term implications on constitutional law, in situations where it fits his arguments (which are in turn slaved to his views on contemporary politics) and vice-versa when it does not. If he was a justice, he surely would have supported child labor in the name of contractual freedom and a weakened commerce clause… he's obviously a pundit, not a legal scholar.

By: Wes Montgomery

Wes Montgomery — Sat, 19 Dec 2009 12:46:05 +0000

You seem to be of a liberal stance, at least in respect to civil rights and freedom of expression. Why do you refer to Roberts' “Switch in time” as despicable? Besides the fact that it was not his own opinion… he saved the court from being transformed into a ridiculous mess of an institution, and upheld minimum wage laws. The damage done to the contract clause was excusable, allowing federal laws to protect employees and ensure they are free to unionize when they choose. It seems like in too many situations, you took Levy's word for it… I bought his book to help with a research paper on constitutional law, and was shocked. I consider myself a moderate, and he bases his picks for the “worst” rulings on extremely shallow right-leaning criteria rather than considering historical context and what has benefited our nation and its people most in the long run. I think you aren't letting your own opinions be heard over his nonsense. Great article though, it mostly useful as a starting point for my research.

By: Wes Montgomery

Wes Montgomery — Sat, 19 Dec 2009 07:49:26 +0000

By: Wes Montgomery

Wes Montgomery — Sat, 19 Dec 2009 07:46:05 +0000

By: dinukedesilva

dinukedesilva — Thu, 08 Oct 2009 05:47:33 +0000

I think that Loving V. Virginia (overturned ban on interracial marriage) should be in the top 12 best supreme court decisions, but I still thought it was a grat list.

By: AlexHarris

AlexHarris — Fri, 21 Aug 2009 04:17:22 +0000

Meh.

The remedy in Bush v. Gore made NO SENSE. In fact, the reasoning supported essentially an OPPOSITE remedy - a statewide recount on some sort of equal basis. But I'm down with the Court taking Reynolds v. Sims very seriously and making sure votes are counted equally. What was really egregious was that the Court basically admitted it was just making a political, one-off, decision and never used it as precedent to make the states shape up their voting practices.

By: AlexHarris

AlexHarris — Fri, 21 Aug 2009 03:17:22 +0000

By: What is “Regulatory Capture”?

What is “Regulatory Capture”? — Fri, 21 Aug 2009 03:10:23 +0000

[...] “activism,” one of my pet peeve words. (Maybe I’ll do it anyway; after all, I posted on the best and worst Supreme Court decisions even though they weren’t especially [...]

By: The Technology Liberation Front Turns 5 Today!

The Technology Liberation Front Turns 5 Today! — Fri, 14 Aug 2009 04:53:42 +0000

[...] Harris’s look at the “Best and Worst Supreme Court Decisions” (1,714 [...]

By: Jesse

Jesse — Sat, 27 Jun 2009 16:58:01 +0000

Where's Bush v Gore?

By: Alex

Alex — Wed, 15 Apr 2009 18:57:14 +0000

AMENDMENT:

Reitman was worse than Shelley.

http://en.wikipedia.org/wiki/Reitman_v._Mulkey

By: The DC Circuit’s Opinion Affirming the FCC’s Boneheaded Ban on Competition | The Technology Liberation Front

Sun, 15 Mar 2009 16:14:17 +0000

[...] FCC to issue its ruling is Chevron deference. I explained a little more about Chevron v. NRDC in a recent post, listing it as one of the worst Supreme Court decisions ever. In Chevron, the Court said that in [...]

By: Alex

Alex — Mon, 02 Mar 2009 17:26:00 +0000

Wow…. Lochner is a terrible decision. The courts making policy decision on a specific level?

By: AlexHarris

AlexHarris — Tue, 24 Feb 2009 07:35:52 +0000

The Court did eventually extend the decision to banning not just enforcement of a restrictive covenant by an injunction but also via damages in Barrows v. Jackson. Perhaps I spoke too broadly in saying that Shelley banned private contracts. It may be more akin to laws in some states regarding gambling contracts - they are not banned, but just not enforceable. I would argue that the equal protection clause does not require, and even forbids, this. The state is not itself discriminating when it enforces a contract agreed to by all parties to it - it is merely enforcing the will of those parties themselves (though specific performance may go too far in general, not just in discriminatory covenants). And, moreover, to treat contracts differently based on what they say is to deny certain contracting parties the "equal protection of the laws." I don't think the state should be able to make content-based restrictions on the enforceability of contracts any more than it can make content-based restrictions on speech.

Shelley v. Kraemer has stood for decades as the ground upon which many commentators have attacked the "state action doctrine," which is of course not a doctrine but a plain requirement of the subject of Section 1 of the 14th Amendment. It proposes to find state action depriving a person of the equal protection of the laws any time a private actor discriminates and the state acts, even if the state's action does not deprive anyone of equal protection of the laws.

It is essential to separate permitting from acting, and state action from private action. Shelley undermines this line.

By: Shelley Kraemer

Shelley Kraemer — Tue, 17 Feb 2009 18:54:00 +0000

I guess you didn't read Shelley. It does not, in fact, invalidate private contracts as in violation of the 14th Amendment. Rather, the court held that it would violate the 14th amendment for the state to enforce a racially-discriminatory covenant by taking title in land away from its rightful purchasers and kicking those rightful purchasers off their land. If people want to enter into racially discriminatory covenants, they can still do so after Shelley — they just can't use the power of the state to enforce their bigotry. You can disagree with the opinion (either because you think racially discriminatory coventants are hunky dory or, as I suspect, for loftier reasons like thinking the court could have reached a similar conclusion on even narrower grounds) but to label Shelley as the 8th-worst Supreme Court decision ever – just behind Plessy v. Ferguson and several spots “above” Buck v. Bell – is ludicrous.

By: Adam Thierer

Adam Thierer — Mon, 16 Feb 2009 04:35:23 +0000

Dude, are you really trying to start a fight about the Articles of Confederation?! Not that I'm against the idea of state secession, but the Articles were a disastrous failure in terms of trade and commerce. You really need to read my first book — The Delicate Balance — about federalism and interstate commerce! I lay out my case against the Articles in there. The internal trade system that made America great would not have been possible without abandoning the Articles and moving to the Constitution. And can you imagine something like the Internet coming about without a national framework governing trade among the states? Never could have happened.

What we need is the U.S. Constitution with the release valve of secession when states want to exercise that right. Of course, they would also lose most of their trade rights with the union at that time. And most of them would never exercise that right for that reason. But the threat of doing so would provide a nice check on the growth of the federal Leviathan.

By: AlexHarris

AlexHarris — Mon, 16 Feb 2009 04:23:15 +0000

I guess I don't mean to rehash debates about the adoption of the Constitution and secession during the Founding era, but I do think that the Constitution imposes some severe limitations on what the states can do, in addition to what the national government can do. It is true that the national government is bound my more limitations, mostly because the national government has enumerated powers whereas the states have plenary-ish police power. But I think the 14th Amendment, the 9th Amendment, and even Article I Section 10 impose extremely stringent limitations on state power – far more stringent than have ever been recognized. The compact theory doesn't really explain why the states would impose such strong limitations on themselves nor why those limitations should be enforced. It's clearly not all just horizontal federalism!

By: Berin Szoka

Berin Szoka — Mon, 16 Feb 2009 04:09:49 +0000

Uh, yeah. And what's wrong with that, again? Don't tell me you buy that nonsense about the perpetual and indissoluble Union!

One might argue that Lincoln's subjugation of the South was morally justified by its result (ending slavery) whether or not that was actually Lincoln's intention. But one need not fall into the common intellectual error of equating the constitutional debate over secession with the issue of slavery.

As Gutzman argues, the states were the parties to the Constitution and it is ultimately to their understanding of the document that we must look to understand its meaning. Virginia, at least, clearly understood the constitution to be a compact among the states, which any state was free to leave at any time. These were the principles upon which Jefferson and Madison stood in 1798 against the Alien & Sedition acts (long before slavery took a leading role in these arguments). These were also the principles upon which New England states threatened to secede in 1814.

Anyway, I'd settle for the good ol' Articles of Confederation any day. Alas...

By: Adam Thierer

Adam Thierer — Mon, 16 Feb 2009 03:27:01 +0000

Great list Alex. As far as worst Supreme Court decisions affecting free speech go, I'd like to put in a special word for Red Lion (1969) and Pacifica (1978). Absolute contortions of the First Amendment.

By: AlexHarris

AlexHarris — Mon, 16 Feb 2009 01:54:48 +0000

Admittedly, not really. If I were making a best and worst list for cases implicating tech policy, Reno v. ACLU and Chevron v. NRDC would definitely be on there. But I'd also add quite a few more that have narrower constitutional significance, like Eldred v. Ashcroft.

By: Berin Szoka

Berin Szoka — Mon, 16 Feb 2009 01:03:16 +0000

Amen, Alex. Do you see any special relevance of these cases to technology policy?

For what it's worth, I would highly recommend The Politically Incorrect Guide to the Constitution by Kevin Gutzman (as reviewed by David Gordon here)