When SCOTUS screws the pooch, it goes the full nine. Not literally; there’s usually at least one dissenting justice to rub the majority’s noses in their idiocy. But some rulings are so bad that one wonders if America would be better off without the process of judicial review.
The case of Marbury v. Madison (1803) established judicial review: the power of the federal courts to declare legislative and executive acts unconstitutional. Some scholars say this was the worst Supreme Court ruling of all time — that it gave nine justices far more power than the founders intended, and that we should return to the 13-year period of 1789-1802, when each branch of government formed its own opinions on the constitutionality of laws.
In his book The Case Against the Supreme Court (2014), Erwin Chemerinsky doesn’t go quite that far. He argues that the Supreme Court has done more harm than good, even during its best periods, yet he doesn’t want to abolish judicial review. “One reason I part company with scholars who propose eliminating judicial review is that I believe the Supreme Court can be significantly improved. As I look back at the terrible mistakes made by the Court, I realize they were not inevitable. In virtually every case that I have criticized, there was a dissent. Those dissents could have been the majority opinions.”
Chemerinsky suggests a variety of things to improve the Court. For example, justices should have 18-year terms instead of life tenure. There should be a merit selection of justices, like the way the Alaska Supreme Court appoints judges to its Court of Appeals. Alaska has had some questionable governors like Sarah Palin, but the judges on the Alaska courts don’t necessarily reflect the politics of the governor, and the decisions rendered by these judges tend to be very high quality. It has to do with how the Alaskan Judicial Council nominates candidates before sending them to the governor for approval. Says Chemerinsky:
“There is nothing in the U.S. Constitution that prevents the president from creating a merit-selection panel for judicial vacancies on the Supreme Court and the federal courts and then promising to pick an individual from the names forwarded to him. President Jimmy Carter (who never got to select a justice for the Supreme Court) did exactly this for federal court of appeals vacancies, and the results were stunning.”
Whether the Court’s power should be diminished or its infrastructure reformed (like Chemerinsky, I say the latter), it’s clear that the issue keeps getting hotter. Here’s a look back at what I consider to be the Court’s worst rulings. It’s stunning how some of the best justices have written or joined such awful opinions.
|1. Dred Scott v. Sanford||Congress cannot grant citizenship to slaves or their descendants (7-2)||1857||Slavery|
|2. Buck v. Bell||Compulsory sterilization of the unfit, including the intellectually disabled, is permissible (8-1)||1927||Eugenics|
|3. Korematsu v. United States
||The internment of Japanese Americans during World War II is permissible (6-3)||1944||Internment|
|4. Barron v. Baltimore||The Bill of Rights applies only to the federal government, not the state governments (9-0)||1833||Bill of Rights|
|5. Schenk/Frohwerk/Debs/Abrams v. United States||Criticizing U.S. involvement in World War I is a criminal offense; criticizing the draft is a criminal offense (9-0, 9-0, 9-0, 7-2)||1919||Free Speech|
|6. Citizens United v. Federal Election Commission||It is a violation of free speech to restrict corporations and unions from unlimited political spending (5-4)||2010||Democracy|
|7. United States v. Miller / Smith v. Maryland||People who voluntarily give information to third parties (banks, phone companies, doctors, internet service providers) have no reasonable expectation of privacy in that information (7-2, 5-3)||1976, 1979||Property Rights|
|8. Plessy v. Ferguson||Racial segregation laws don’t violate the Constitution as long as the facilities for each race are equal in quality (7-1)||1896||Racial Segregation|
|9. Bowers v. Hardwick||Laws that make sodomy illegal are permissible (5-4)||1986||Homosexuality|
|10. AT&T Mobility LLC v. Concepcion/ American Express v. Italian Colors Restaurant
||States must enforce arbitration agreements even if the agreement requires that consumer complaints be arbitrated individually instead of on a class-action basis (5-4, 5-3)||2011, 2013||Corporate Liability|
|11. Roe v. Wade
||The Due Process Clause of the Fourteenth Amendment provides a right to privacy that protects a pregnant woman’s liberty to abort her fetus (7-2)||1973||Abortion|
1. Dred Scott v. Sanford (1857)
The issue: Slavery
The ruling (7-2): Congress cannot grant citizenship to slaves or their descendants
It’s a predictable and perhaps boring choice for the top slot, but it deserves its reputation. It relied on racist doctrine spelled out in the ugliest terms — that blacks were “beings of an inferior order, altogether unfit to associate with the white race, and so far inferior that they had no rights which the white man was bound to respect”. It played a key role in precipitating the Civil War. The Kansas-Nebraska Act (1854) had already repealed the Missouri Compromise’s prohibition of slavery in the territories west of Missouri and north of the specified line, and now the Supreme Court said that prohibiting slavery in any territory was unconstitutional. But what about its judicial merits? The legal reasoning, aside from the repugnant morality that drove it and the disaster that came from it?
The background is well known. Scott was a slave in Missouri, owned by John Emerson, and he was taken by Emerson to the free state of Illinois. After Emerson died, his estate was taken over by John Sandford, who lived in New York. Scott sued Sandford in federal court, claiming that his residence in Illinois made him a free person. When the Court ruled against him, it arrived at two legal conclusions: (1) Dred Scott could not sue in federal court because blacks, whether slave or free, were not citizens under the Constitution; (2) Congress lacked constitutional authority to enact the Missouri Compromise of 1820 prohibiting slavery in any territory, since it had the effect of taking of property from slave owners.
With regards to (1), the Constitution did not require this conclusion. According to scholar Robert Burt:
“Holding that the Constitution regarded slaves as property and committed Congress to protect masters’ property rights as such, Taney gave a definitive answer to a question that the framers did not resolve. Taney’s error was not that the framers gave a different answer so that the document contradicted him. It was instead that the document contradicted itself on this question. Taney is clearly correct that the fugitive slave clause recognized masters’ property rights to slaves. And yet the Constitution nowhere says this explicitly. Indeed, the word ‘slave’ never appears as such in the document. This omission was not a casual oversight. It was a calculated choice by the framers. There were many provisions in the Constitution that dealt with an obviously protected the institution of slavery. But the word was never used because, as James Madison stated in the convention debates, it would be ‘wrong to admit in the Constitution the idea that there could be property in men’. Taney was thus wrong, though at the same time he was also right, that the Constitution acknowledged property rights in slaves.”
In essence, the question of black citizenship and slaves being property was the very question that needed resolution. The Court could have resolved the long-standing ambiguity by defining “citizens” to include slaves. That would have reinforced the spirit of the Constitution and Declaration of Independence. But Taney and the majority went the odious route, declaring an entire group of people to be chattels, and saying that the Court couldn’t grant citizenship to slaves or their descendants (since that would be a taking of property from slave owners without due process or just compensation). According to Taney, the Court simply lacked the power to alter the legal status of black people by granting them state citizenship.
But on that assumption, the Court didn’t even need to address whether or not (2) the Missouri Compromise was unconstitutional. (Once a Court concludes that it lacks jurisdiction, the case should be simply dismissed.) Taney did so anyway, ruling that it was unconstitutional — since Congress’s eliminating of slavery in territories north of the specified line had the effect of taking of property from slave owners. Thus any federal law that tried to limit slavery was invalid if it had the effect of freeing a single slave; it amounted to robbery.
The two dissenters in the case — Benjamin Curtis and John McLean — argued that overturning the Missouri Compromise was an illegitimate move, and Curtis also said that the idea that blacks could not be citizens was both historically and legally baseless. They were right. The Court’s hands were not tied as Taney claimed. The justices could have ruled, with Constitutional integrity, that slaves were U.S. citizens. Because they didn’t — and because they went out of their way to put all their chips on the side of slavery — I follow those who regard this as the worst Supreme Court decision of all time.
2. Buck v. Bell (1927)
The issue: Eugenics
The ruling (8-1): Compulsory sterilization of the unfit, including the intellectually disabled, is permissible
Oliver Wendell Holmes was no Roger Taney. He was one of the greatest Supreme Court justices of all time. And yet the following words came from his pen:
“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”
There’s an evil side to me that actually agrees with this. Mass stupidity does make me wonder (on my bad days) if we would be better off by denying idiots and assholes the right to breed. But I’m being tongue in cheek. Eugenics is obviously monstrous. Compulsory vaccination, yes — and I agree with the Court’s decision in Jacobson v. Massachusetts (1905), which gave states the authority to enforce vaccination of its citizens — but to make an equivalence between forced vaccination and sterilization is off the scales.
To be fair, eugenics was widely accepted in the early 20th century (1907-1939), and indeed Harvard University itself was promoting it. You can hardly fault presidents like Harding and justices like Holmes too much for following what the best scholars and experts were saying on the subject. By the time the eugenics movement had reached its high point in 1927 (the year of Buck v. Bell), the medical establishment was fully on board, and the courts were upholding forced sterilizations of the “mentally defective” left and right. Buck v. Bell legitimated that trend, and by 1935 more than 20,000 forced sterilizations had occurred (most of them in California). In the case of Carrie Buck, she was deemed “feebleminded”, though she was not even mildly retarded. Her crime was that she had grown up in poverty, been taken in by a foster family, raped by one of its members, and then blamed for being raped as she had shamed the family. For this she was deemed “unfit” for reproducing.
It’s hard to believe that such a Nazi-esque practice has occurred in America, and even harder that the Supreme Court rejected arguments that forced sterilization violated the Eighth Amendment (cruel and unusual punishment), and the Fourteenth Amendment (due process). In that sense it’s like the Dred Scott case, and the question of black people qualifying as citizens. For that reason I place Buck v. Bell at #2.
3. Korematsu v. United States (1944)
The issue: Internment
The ruling (6-3): The internment of Japanese Americans during World War II is permissible
Justice Hugo Black, one of the greatest civil libertarians of all time, wrote the following to deny the most basic civil liberties to Japanese Americans:
“Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger… Fred Korematsu was not interned because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.”
In other words, the internment of Japanese Americans wasn’t a racist policy, but it was a racist policy. The government used ethnicity alone as a basis to predict who was a threat to national security. It was sweepingly inclusive: all Japanese Americans, without exception, were evacuated and interred because a few might be disloyal. (It turned out that there was no evidence of a threat from any Japanese Americans, but this ruling was horrible regardless of that.) It was also strangely under-inclusive: German Americans and Italian Americans were rarely detained during the war. “Japs” were the targets, pure and simple.
And while the internment of Japanese Americans was nothing akin to what the Jews suffered in Europe, it was no mere inconvenience. The Japanese Americans were forced to sell their homes and personal belongings before moving to the camps. They were quartered in camps or barracks without running water or cooking facilities — sometimes even horse stalls. Internment cost them their livelihoods.
Justices Owen Roberts and Robert Jackson dissented in the case of Korematsu, acknowledging the racism in the majority’s ruling without using the word, but Frank Murphy’s dissent was blunt and unforgiving: “I dissent from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.” When a great civil libertarian (Hugo Black) and the most flaming liberal justice of all time (William Douglas) need to be scolded like this, it says something about how far we fall during times of war, when xenophobic fears bring out the worst in us. The vile ruling of Korematsu richly earns its place at #3.
4. Barron v. Baltimore (1833)
The issue: The Bill of Rights
The ruling (9-0): The Bill of Rights applies only to the federal government, not the state governments
I haven’t seen Barron on any worst rulings lists, which surprises me. The legendary John Marshall wrote the opinion, commanding a unanimous vote, that the Bill of Rights didn’t apply to state governments, despite the fact that many provisions of the Bill of Rights don’t limit themselves to the federal government. Thanks to this ruling, there was a miscarriage of justice for decades. States often didn’t provide counsel for those accused of crimes. States punished those who invoked their privilege against self-recrimination. States sentenced people to death without an attorney being provided. Some states even had official state churches. States didn’t have to respect free speech.
The reframing of states rights came with the post Civil War amendments (13th, 14th, and 15th). Indeed, the Constitution was effectively changed between 1865-1870, limiting what state governments could do, especially by the Fourteenth Amendment — which says that due process applies to state governments no less than the federal. But because of the entrenched precedent of Barron v. Baltimore, these new amendments became largely a dead letter. Even by the mid-1870s, United States v. Cruikshank (1876) still held that the First and Second Amendments didn’t apply to state governments.
The greatest advocate for incorporating the Bill of Rights into the Due Process Clause was Justice John Marshall Harlan (who served on the Court from 1877-1911). Harlan’s position became known as the doctrine of incorporation, but it would be a long time before the Court imposed that doctrine on the states. Gitlow v. New York (1925) did it for the First Amendment. Powell v. Alabama (1932) did it for the Sixth Amendment (in cases of capital crimes), and Gideon v. Wainright (1963) did it for the Sixth Amendment (for all criminal cases). Mapp v. Ohio (1961) did it for the Fourth Amendment. Malloy v. Hogan (1964) did it for the Fifth Amendment. In other words, it took nearly a full century after establishing the Fourteenth Amendment (1868) for all of the Bill of Rights to apply to the states. If not for Barron v. Baltimore, that incorporation would have likely happened much sooner.
We take our rights for granted, often forgetting (if we ever knew) that the Bill of Rights was toothless for a long period. During the 19th and early 20th centuries, it was small consolation to say that the federal government had to respect your basic rights, while state and local governments — the ones that affect you on a daily basis — could oppress you. Barron v. Baltimore didn’t do Americans any favors, to say the least, and it probably deserves the #1 slot on this list. But I place it at #4 because Dred Scott, Buck, and Korematsu are so despicably vile.
5. Schenk/Frohwerk/Debs/Abrams v. United States (1919)
The issue: Free speech
The ruling (9-0, 9-0, 9-0, 7-2): Criticizing U.S. involvement in World War I is a criminal offense; criticizing the draft is a criminal offense
The period of World War I was the worst time in America for anyone’s civil liberties. Under Woodrow Wilson conscription was resurrected from the Civil War via the Selective Service Act of 1917, even though the Constitution doesn’t authorize a military draft, and the Thirteenth Amendment explicitly prohibits involuntary service. (The act has never been repealed, and to this day American men are required to register for the draft.) The Espionage Act of 1917 made protests against the draft illegal, as well as criticism of American allies. The Sedition Act of 1918 made any speech, spoken or in print, illegal if it was critical of the war effort or the aims of the government. Wilson used the post office and Justice Department to suppress free speech, and ordered the War Department to censor all telegraph and telephone traffic. He fined and imprisoned thousands for criticizing the war.
This is the background for a flurry of Supreme Court cases that stunningly (and unanimously) upheld the president’s will. Schenck involved two people distributing leaflets saying that the draft violated the Thirteenth Amendment as a form of involuntary servitude; they were arrested and thrown in jail. Frohwerk involved a newspaper publisher who ran anti-war articles; he was imprisoned for ten years. Debs involved a socialist party leader who vocally opposed the war effort; he too got ten years. Those three cases came early in 1919, and the Court upheld their sentences each time, 9-0, ruling that the president was not acting unconstitutionally in suppressing free speech. Criticizing the war effort or the draft was a federal crime, said the majority, because during times of crisis, civil rights that would otherwise hold do not apply.
The justice who wrote the ruling in each of the three cases was — believe it or not — the great Oliver Wendell Holmes, and one of the justices who joined Holmes’ unanimous ruling was none other than Louis Brandeis. In the 1920s Brandeis would become the famous defender of the First Amendment, first in Gitlow v. New York (1925), which made free speech a state right as much as a federal one (see #4 above), and then in Whitney v. California (1927), in which Brandeis (joined by Holmes) dissented from the majority, advocating what has become famously known as the counterspeech doctrine (the appropriate response to offensive speech is more and better speech, not censorship). How could Holmes and Brandeis, legendary champions of liberty and free speech, have ruled as they did in Schenk, Frohwerk, and Debs?
The answer seems to be that war brings out the worst in us, and seduces even the most passionate defenders of liberty. We saw this in the case of Korematsu v. United States (1944) (see #3 above), where another famous civil libertarian, Hugo Black, upheld the government’s decision to intern Japanese Americans who had done no wrong. Just as Black stumbled during the second world war, Holmes and Brandeis stumbled during the first.
Though not entirely. Holmes and Brandeis did an amazing about-face at the end of the year in the case of Abrams. (Schenk, Frohwerk, and Debs were decided in March 1919, and Abrams in November 1919.) The case of Abrams involved Russian immigrants who circulated leaflets criticizing America’s war effort. They got twenty years in prison, and the Court relied on Schenk, Frohwerk, and Debs to uphold the convictions. This time, however, the ruling was 7-2. Holmes and Brandeis dissented. Holmes said that he saw no contradiction between his dissent in Abrams and his majority rulings in the previous three cases, but he was transparently full of shit. The cases were all absolutely identical. Holmes was just saving face. Scholars are in wide agreement that between March and November, Holmes and Brandeis changed their minds, realizing they had been dead wrong to uphold the suppression of free speech.
6. Citizens United v. Federal Election Commission (2010)
The issue: Democracy
The ruling (5-4): It is a violation of free speech to restrict corporations and unions from unlimited political spending
This ruling has changed U.S. elections on a fundamental level. The 5-4 conservative majority ruled that to restrict corporations, labor unions, and other profitable organizations from political spending violates their free speech rights. Now, obviously the First Amendment never protected the spending of money in an election campaign as a form of protected speech. Nor was that amendment — or any of the Bill of Rights — designed to protect corporations. But that didn’t stop the Court from handing down this asinine ruling. Thanks to them, the cost of running for elected office will often increase, and the additional money thrown into the pot will sometimes determine the outcome of the elections.
The premise that spending money is pure speech is absurd. There is First Amendment protection for conduct that communicates, but the Supreme Court has long said that such conduct is much more subject to government regulation than ‘pure speech’. Money in elections facilitates speech, but many things that facilitate speech (like education) are not Constitutional rights. Money is property, not speech, and property rights don’t have the same protection as the right to say as you please.
More to the point, the Court’s premise that corporations should have the same speech rights as individuals is even more ridiculous, as Justice Stevens said in his dissent:
“In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”
Stevens then concluded by saying the majority’s ruling in Citizens United is nothing less than a “rejection of the common sense of the American people”. Erwin Chemerinsky says that this case should put to rest the constant conservative attack on judicial activism: “By any measure, Citizens United was stunning in its judicial activism.” As I always remind people, liberal justices don’t have a monopoly on judicial activism. The Roberts court has proven itself to contain activist conservatives in some cases, and Citizens United is Exhibit A in this regard.
If we can’t regulate money in politics, then we’ll become not a democracy, but a plutocracy. This is easily the worst Supreme Court ruling that has been handed down in my lifetime, and for that it earns its place at #6.
7. United States v. Miller (1976); Smith v. Maryland (1979)
The issue: Property rights
The ruling (7-2, 5-3): People who voluntarily give information to third parties have no reasonable expectation of privacy in that information
This pair of rulings established the terrible third-party doctrine. It was bad enough in the 70s and 80s, and only got worse with the rise of the internet and cell phones. The doctrine states that information provided voluntarily to a third-party isn’t covered by expectation of privacy, and the government can obtain such information without a warrant. (The case of Miller involved bank records; Smith involved telephone records.) This gave the government easy access to vast amounts of information about people — their phone contacts, their banking records, their education files, the websites they visit, who they email, and so on.
The doctrine rests on the one hundred percent crazy premise that people don’t expect their third-party records to be private. But third parties makes promises all the time to maintain the privacy of the information they take. If your bank or doctor promises you confidentiality, you expect them to keep their promise. And if they breach confidentiality, they can be sued under the tort of breach of confidentiality.
To date, Miller and Smith have not been overturned. Some people think they were overturned in Carpenter v. United States (2018), but that ruling was very narrow and applied to cell-phone data only — and by actually appealing to the premises of Miller and Smith that are so problematic. Neil Gorsuch dissented in Carpenter for the milk-and-water reasoning that left the heart of the problem unresolved:
“I cannot fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed I agree with that. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry [that only compounds the “reasonable expectations” problem]. Returning there, I worry, promises more trouble than help. Instead I would look to a more traditional Fourth Amendment approach.”
I too would rather see our cell-phone data shielded by the laws of property rights, and not leave the question eternally open to whatever this or that justice may think constitutes “reasonable expectations” to privacy. Smith and Miller should have been overturned in Carpenter, and the third-party doctrine ruled unconstitutional for everything — bank records, medical records, email servers — not just cell phones.
8. Plessy v. Ferguson (1896)
The issue: Racism
The ruling (7-1): Racial segregation laws don’t violate the Constitution as long as the facilities for each race are equal in quality
The lone dissent to Plessy came from a man who had once been a slaveholder: John Marshall Harlan. He swore during the Civil War that he would resign from the army if Lincoln signed the Emancipation Proclamation, but later became a fervent critic of slavery and prejudice. He was the first justice to earn a law degree, and when he joined the Court he swiftly earned his reputation as “The Great Dissenter” — especially for cases that restricted civil liberties. He advocated (in vain) that the Bill of Rights be incorporated into the Due Process Clause, and thus applied to state and local governments (see #4 above). He insisted (in vain) that the residents of U.S. Territories in the Philippines, Puerto Rico, and Guam be entitled to the full Constitutional rights of American citizens. And he dissented (in vain) against the terrible ruling of Plessy, which said that racially segregated public facilities were fine, as long as they were “equal”.
Obviously the doctrine of “separate but equal” is an oxymoron, and Harlan blasted the majority accordingly:
“Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white people from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. In view of the constitution, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”
Common sense today, but it would take almost six decades for Brown v. Board of Education (1954) to strike down segregation and call out the “separate but equal” doctrine for the bullshit that it was. Harlan the ex-slave owner was a man way ahead of his time.
9. Bowers v. Hardwick (1986)
The issue: Homosexuality
The ruling (5-4): Laws that make sodomy illegal are valid
Even for the ’80s (which was basically the ’50s all over again when it came to homosexuality), I still find this case hard to believe. In Georgia a police officer went into a man’s home (Michael Hardwick) to serve him a warrant to appear in court for drinking in public. The officer found Hardwick engaging in consensual oral sex with another man, and arrested him on the spot for sodomy. Hardwick sued Michael Bowers, the attorney general of Georgia, in a federal court, and won his case, but the state of Georgia took it to the Supreme Court and was the ultimate victor.
The Court ruled that state laws classifying homosexual sex as illegal sodomy were valid because there was no constitutionally protected right to engage in homosexual sex. Byron White (a justice I have much respect for) wrote for the majority, saying that the Constitution didn’t confer “a fundamental right to engage in homosexual sodomy”. In a concurring opinion, Chief Justice Warren Burger cited the 18th-century English jurist William Blackstone, who had condemned homosexuality as worse than rape and “a crime not fit to be named”. Burger said that “to hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
All of this judicial bigotry came as a serious legal blow to the gay community and it would be over a decade before proper redresses were made. Georgia’s anti-sodomy statute was repealed in 1998, and the Supreme Court finally did in Lawrence v. Texas (2003) what they should have done in this case — by declaring a Texas anti-sodomy statute unconstitutional, ruling that homosexual sodomy is part of the right of adults to engage in private sexual activity.
10. AT&T Mobility LLC v. Concepcion (2011); American Express v. Italian Colors Restaurant (2013)
The issue: Corporate liability
The ruling (5-4, 5-3): States must enforce arbitration agreements even if the agreement requires that consumer complaints be arbitrated individually instead of on a class-action basis
Lawmakers designed class actions to protect individuals from being cheated by big businesses. This pair of rulings shielded corporations from class actions and gave them a license to engage in fraud. Antonin Scalia (a justice I respect) wrote for the majority in each case. In AT&T Mobility, Vincent and Liza Concepcion sued the cell phone company for deceptive advertising — falsely claiming that their wireless plan included free cell phones — for which they were entitled a $30 rebate. The lawsuit became a class action, since no one in their right mind sues as an individual for a paltry amount of $30.
Scalia argued that (1) the California law allowing class actions is preempted by federal law and that arbitration was required under the Federal Arbitration Act of 1925; and that (2) the Federal Arbitration Act requires that claims be arbitrated on an individual basis and that class arbitration is not allowed. Scalia was dead wrong. For one (1), arbitration was not required in this case at all, since the Act specifically states that arbitration clauses are not to be enforced when state law would not do so; and (2) nowhere, in any case, does the Act say or imply that claims must be arbitrated on an individual basis, or that class arbitration is not allowed.
Breyer dissented: “Where does the majority get its contrary idea — that individual, rather than class, arbitration is a fundamental attribute of arbitration?” Obviously without class actions, minor frauds would never be remedied. No lawyer would represent a case to recover a lousy $30. This is precisely why class-action lawsuits exist — when large numbers of people each lose a small amount of money and none is likely to bring an individual claim.
Two years later came the American Express case. Scalia wrote again for the majority, saying that an arbitration clause must be enforced, even when the effect will be to grant the company immunity from any wrongdoing. He was wrong again. Even though in this case the contract between American Express and the restaurant required arbitration, and between individuals (not class arbitration), there is a long standing principle under the Federal Arbitration Act that arbitration clauses are not to be enforced if they prevent “effective vindication” of a claim. But the majority refused to allow the exception to apply where it obviously does apply. Kagan blasted the majority in her dissent, arguing that this was the ultimate betrayal, creating the power of big business to enter into agreements, and then keeping themselves from being held liable.
Class action lawsuits may seem trivial compared to slavery, eugenics, internment, the Bill of Rights, free speech, property rights, etc., but I find this pair of rulings foul in the extreme. The majority in each case (they were the same five: Scalia, Roberts, Alito, Thomas, and Kennedy) construed the Federal Arbitration Act to protect corporations in a way that not only opposed the Congressional intent behind the law, but by blatantly ignoring what the law said about not enforcing arbitration clauses. Scalia said that he was concerned about the “terrorizing effect” of class action. He obviously wasn’t concerned about the terrorizing effect of big businesses that are now shielded, thanks to his opinions, from accountability.
11. Roe v. Wade (1973)
The issue: Abortion
The ruling (7-2): The Due Process Clause of the Fourteenth Amendment provides a right to privacy that protects a pregnant woman’s liberty to abort her fetus
Some of my readers will do a double-take at this one. “Roe? Surely he means Dobbs.” I’m not wild about Dobbs, but Roe was always the problem that made Dobbs inevitable. In hindsight, I’m surprised it took forty-nine years.
In pegging Roe as one of the worst Supreme Court rulings of all time, I judge not out of hostility to abortion (I’m pro-choice as they come), but out of profound regret that Roe (a) focused on the wrong constitutional issue (privacy), and then (b) used that faulty element to make a judicially activist fiat, which ended up (c) putting the brakes on a trajectory in American consensus favoring abortion. In this I follow the late Ruth Ginsburg.
Pro-choice advocate Tom Flynn has also criticized Roe as an overreaching fiat that settled the abortion in an unstable and undesirable way:
“By enforcing a preemptive victory for those in favor of abortion rights, it brought the grass-roots debate about the subject to a premature end. The important questions, such as ‘When does a fetus become a human person?’ were never really thrashed out. So we arrive at today’s situation, where abortion rights exist only by court order because advocates never got the chance to build a broad-based constituency for them.”
Prior to Roe, the trajectory toward abortion acceptance was clear. Sixteen states had liberalized their abortion statutes. The American Medical Association had reversed its policies, shedding its strict anti-abortion skin and adopting strong pro-choice guidelines. If not for Roe, many states would have established liberal abortion policies. Roe‘s overreach ignited religious-right activism, and when right-wingers are out in droves to “defend the most innocent lives from murder”, it’s hard to claim the moral high ground, especially when the pro-choice case rests lamely on one’s “right to privacy” (which is how Roe was decided) and one’s “right to choose” (to choose murder? asks the anti-abortionist). Without Roe progressives could have finished their task in educating people as to why abortion is not just “my business” and “my choice”, but actually morally superior in a world of unwanted pregnancies, poverty, rape, and unnecessary suffering.
My hope is that Dobbs will make this task possible, and it’s not an unreasonable expectation, even in today’s polarized climate of the alt-right and woke left. Polling shows that there is little support in America for an abortion ban, especially if it doesn’t make exceptions for rape and incest. 80% of Americans want to keep abortion legal, either entirely (32%) or with some restrictions (48%), while only 18% want it banned entirely. My fear is that a good portion of that 18% will be in the legislature come this November, when the Republicans win the mid-terms, but my greater hope is that people’s voices will be heard, and that we will eventually have minimal abortion rights codified in federal law, on top of whatever the states allow.
In responding to the fury over Dobbs, Andrew Sullivan had this to say:
“Dobbs will send the abortion issue back from a single court to democratic debate and discussion – where it is in every other western country. Even the most progressive countries regulate abortion through the democratic process. In Germany, it’s illegal after 12 weeks of pregnancy — more restrictive than the case of Dobbs that bars abortion after 15 weeks. European countries where the legal cutoff is even more restrictive: Austria, Spain, Greece, Italy, France, Belgium and Switzerland. Abortion enshrined as a constitutional right? Not even in super-progressive Canada. The United States, in other words, has been an outlier in the past and, with Roe reversed, it will return to a democratic politics of abortion, in line with most of the Western world. Abortion, if we wanted, could actually be an issue that restores health to a polarized polity by forcing us to come to various forms of compromise over an issue we’ve debated entirely in the abstract until now. We can no longer punt it.
States can pursue different legal regimes, from the very permissive to the very restrictive, and the results can be weighed up. Remember federalism? This is a near-perfect reflection of its essential role in keeping this country in one piece. And, in my view, all of this actually calls the cheap, moralizing bluff of the religious right. Now they actually have to enforce and defend draconian bans — and see popular revulsion grow, unless they too can come up with a compromise. Leftists, if they could only snap out of their disdain for democracy, can make a powerful case for moderation on this issue against right-extremism. To do that, of course, they will have to back some restrictions on abortion in some states — which some seem very reluctant to do — and even allow some diversity of opinion within their own ranks.
So let’s stop the hyperventilation and get back to democracy. Persuade people, if you can. Get them out to vote. Stop demonizing those you disagree with and compromise with them in office, however difficult that may be. What Roe did was kickstart the extreme cultural polarization that has defined and blighted the last few decades of American politics. Maybe the end of Roe can mark the beginning of a return to living together, and negotiating a way to make that bearable.”
Maybe, is the key word in that last sentence. As I said, I fear a GOP-dominated Congress that won’t feel compelled to compromise or pay much attention to their constituency. But I can see it going the other way too. Regardless, I have come to see Roe v. Wade as a bad ruling: terrible jurisprudence that poisoned our abortion politics.