The Supreme Court Paladins

After showcasing the hall of shame it’s time for the good justices, and this is a completely serious post. These are my favorites:

1. Louis Brandeis (1916-1939) (R-D)
2. Neil Gorsuch (2017-present) (R)
3. Robert Jackson (1941-1954) (D)
4. John Marshall Harlan (1877-1911) (R)
5. Elena Kagan (2010-present) (D)
6. Hugo Black (1937-1971) (D)
7. Stephen Field (1863-1897) (D)
8. Antonin Scalia (1986-2016) (R)
9. Oliver Wendell Holmes (1902-1932) (R)

Five Republicans and five Democrats (Brandeis was both), so it’s some consolation that I’m party-blind — just as these justices do an admirable job of leaving party at the door when they sit the bench. Readers may wonder about certain omissions, like John Marshall (1801-1835) and Earl Warren (1953-1969), but those two were highly activist. I’m not saying they were bad justices, and it’s undeniable that their activism landed positive results. Marshall established the process of judicial review, and Warren’s court democratized the Bill of Rights. In each case, it was less out of an activist desire to remake the law, and more to remedy the effects of governmental paralysis. Still, I believe they’re overrated. They were strong leaders, but not the best judicial thinkers, and they had primarily political rather than legal backgrounds.

1. Louis Brandeis (1916-1939). Appointed by Woodrow Wilson. The best justice was appointed by the very worst president, though that’s not surprising. Justices prove time and time again they are not beholden to the executive. Neil Gorsuch (at my #2 slot) is another case in point. Readers may be surprised in any case to see Louis Brandeis topping my list, since his reputation is one of a living constitutionalist, but that reputation is misleading. It’s true that he believed the Constitution had to be interpreted in light of present realities but he wasn’t activist. The biographer Jeffery Rosen calls him a “living originalist” — somewhere between the hard-core originalists and the living constitutionalists — which is about right, though I think more the former in effect if the latter in appearance. Brandeis always insisted on judicial restraint; any “activism” on his part was just a matter of taking constitutional principles to their logical conclusions, or clarifying them in a period of technological change. His starting point was always the framers — the values they meant to protect, especially speech and privacy. Some aspects of his jurisprudence have been embraced by liberals like Ruth Ginsburg and Elena Kagan (who have called themselves originalists), and other aspects by conservatives like Antonin Scalia and Clarence Thomas (the hard-core originalists). Both camps agree that he was a model of jurisprudence and didn’t dissent (as some judges and justices do) when the court’s ruling produced results that he found personally displeasing. Quite the contrary.

There are six particular reasons that Brandeis earns the top slot on my list:

(1) He developed a fact-based evidence approach to arguing cases, instead of just relying on legal theory. He began this as a lawyer, years before his appointment to the Supreme Court, and the method came to be known as the “Brandeis Brief”. It’s now a staple of constitutional law. With the Brandeis Brief, the courts were brought into the solid orbit of facts. From 1907 to 1914 Brandeis defended people who were overworked in the name of “the freedom to contract” (established by the terrible Lochner v. New York ruling in 1905), advocating statues that prescribed maximum hours of labor and minimum decency of wages. In 1908 he famously appeared before the Supreme Court in Muller v. Oregon, representing the state in defending women workers. He had two pages of legal arguments, and over a hundred pages of statistics, sociological data, historical facts, and expert opinion arguing that women were unable to work for more than ten hours at a time. Astonishingly — considering this was the Lochner era of 1905-1937 — he won his case: the Court ruled that states could limit the working hours of women; it was constitutional under the Fourteenth Amendment, in the interest of protecting their health. Facts and evidence-based arguments impressed the court, and those are the kind of arguments that would impress Brandeis when he became a SCOTUS justice in 1916.

(2) He did more for the cause of free speech than any other justice in American history (on which see below).

(3) He advocated strenuously (if in vain) for the cause of privacy, which he believed was inherent in American law, and should apply to electronic surveillance as much as to physical trespass (on which see below).

(4) He believed in preserving federalism, which meant preserving the autonomy of the states. State legislatures had to be able to make laws suited to varied and changing needs; their laws should be struck down only when they interfered with basic freedoms (on which see below).

(5) He was acutely aware of the dangers of big business. He defended personal and economic liberty and opposed centralization in business or government (on which see below).

(6) He was objective about FDR’s New Deal legislation. Although a foe of strong centralized federal government like FDR’s, Brandeis supported the constitutional validity of most of the New Deal legislation — though not indiscriminately. He joined, for example, the Court’s ruling which held the National Industrial Recovery Act of 1933 to be unconstitutional, as well as the ruling of Humphrey’s Executor v. United States (1935), which said that the president may not remove any appointee to an independent regulatory agency except for reasons that Congress has provided by law. And he wrote the ruling for Louisville Joint Stock Land Bank v. Radford (1935), which invalidated the Frazier–Lemke Act because it deprived the bank of private property without just compensation, in violation of the Fifth Amendment. Brandeis thus showed himself to be objective on a huge issue that was very hard to be objective about.

Brandeis, in other words, might be called a Jeffersonian libertarian who espoused the ideals of small government and local democracy while applying those ideals to uphold state regulations that tamed the excesses of big business and monopolies. (I wish Brandeis could be unleashed today on corporations like Facebook and Youtube.) Like Jefferson, he believed that the greatest threat to our constitutional liberties were uneducated citizens, and that democracy could not survive ignorance.

— At his best: Judicial Deference to State Experimentation. In New State Ice v. Liebmann (1932), Brandeis dissented to the 7-2 ruling that struck down a state law (Oklahoma’s) that required manufacturers to get licenses from a state commission before opening a new business. Brandeis didn’t like the government intrusiveness, but he believed that state and local responses to economic challenges had to be encouraged, unless they violated the Constitution. The majority said that the license requirements for ice manufacturers violated the Due Process Clause. Brandeis (correctly, I believe) thought the majority were reaching. Likewise, in Liggett v. Lee (1933), Brandeis dissented to the 6-3 ruling that struck down a state law (Florida’s) that aimed to protect small independently owned businesses in competition with out-of-state chain stores by taxing the chain stories with a license fee. In that case, he was livid that the Court had prevented states like Florida from trying to protect local businesses from out-of-state rivals. In his view, the ruling failed to defer to legislative fact-finding, not to mention that it offended the principles of federalism (states rights) and judicial restraint. Also, Brandeis was a Jeffersonian, not a Hamiltonian, and knew the dangers of big corporations. He showed, using fact-based evidence, that when states ignore safeguards against corporate power, the result are institutions that have the power to challenge and/or dominate the states themselves. Florida’s tax was a constitutional good, going beyond merely protecting a handful of small businesses from out of state competition. The tax protected the viability of American ideals like equal opportunity, economic self-sufficiency, and personal liberty. The Court had eradicated that tax because it (supposedly) violated the Equal Protection Clause. Giving big businesses an added advantage in the name of “equal protection” is Orwellian, and Brandeis said as much in his dissent.
Free Speech. Brandeis believed that speech could be restricted only if (a) it threatened to result in harm that was both imminent and serious, and (b) there was no time for deliberation to defuse the danger. He was way ahead of his time. It would take more than 40 years, in Brandenburg v. Ohio (1969), for the Court to establish the “incitement to violence” provision: that in order to lose First Amendment protection, speech must be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (which is why hate speech is protected; people shouldn’t be arrested for speaking hatefully, but try telling that to the modern woke). In the ’20s the victories for free speech were more foundational. Brandeis became the famous defender of the First Amendment in Gitlow v. New York (1925) — a landmark ruling that made free speech a state right, for the very first time, as much as a federal one. But the Court upheld Gitlow’s conviction anyway, 7-2, on grounds that his speech directly advocated the unlawful overthrow of the government. Oliver Wendell Holmes dissented, and Brandeis joined him, on grounds that indefinite advocacy of overthrowing government should be protected speech; they rightly insisted that threats had to be imminent to fall outside First Amendment protection. Two years later, in Whitney v. California (1927), Brandeis wrote a concurrence to the 9-0 ruling, which remains to this day the greatest defense of free speech ever written by SCOTUS justice, explaining why the solution to bad speech is more speech, or counter-speech, or better speech, but not censorship: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”
Privacy. In Olmstead v. United States (1928), the Supreme Court dealt with its first case of electronic searches. The feds were tapping phones to enforce Prohibition, Olmstead was a bootlegger generating more than $2 million a year from illegal booze and he protested that the wire taps that busted him violated the Fourth Amendment. (Actually the wire taps were illegal under Washington state law.) In a 5-4 ruling, Chief Justice Taft said that Olmstead’s rights hadn’t been violated: the Fourth Amendment only prohibited searches or seizures accompanied by physical trespass, and the feds hadn’t trespassed on Olmstead’s property when they placed the wiretaps on the phone lines near his house. Brandeis found that inadequate in the 20th century. Phone conversations often contained more sensitive information than sealed letters. He wrote: “At the time of the adoption of the Fourth and Fifth Amendments, force and violence were the only means by which the government could compel self-incrimination. Thus, the protections offered by these Amendments were necessarily limited to address only imaginable forms of such force and violence. However, with the technological advances, the government has received the ability to invade privacy in more subtle ways.” Brandeis’s wisdom wouldn’t prevail until exactly 90 years later, in Carpenter v. United States (2018), when the Court ruled that cell phone data had Fourth Amendment protection. Even here however, the ruling was narrow, applying only to cell phone data, and not to other forms of third-party data (like bank records, etc.) which to this day police can search without warrants. The Court has yet to fully embrace Brandeis’ view that all forms of electronic surveillance without warrants are unconstitutional. This is a classic case where hyper-literal originalism fails. I certainly don’t think Brandeis was a judicial activist for trying to apply the Fourth Amendment in an era where spying can occur without physical trespass.

— At his worst: Free Speech, Part 2. Brandeis hadn’t always been a free speech purist. In Schenck v. United States, Frohwerk v. United States, and Debs v. United States — all delivered in March 1919 — Brandeis joined a unanimous court in upholding Woodrow Wilson’s tyranny during World War I, ruling that criticizing U.S. involvement the war is a criminal offense, and that criticizing the draft is a criminal offense. The people in these cases were sentenced to years in prison for simply exercising their free speech rights. However, two of the nine justices — Brandeis and Oliver Wendell Holmes (see #9 below) — redeemed themselves months later, in the case of Abrams v. United States, which also sent people to prison for speaking against U.S. involvement in the war. This case was delivered in November, but this time the ruling was 7-2: Brandeis and Holmes had had a change of heart, repenting of their errors. They became the strongest champions of free speech from then on.
Eugenics. In Buck v. Bell (1927), the Supreme Court made one of its worst rulings of all time, ruling that it was constitutional to sterilize people against their will if they were unfit or mentally disabled. Brandeis didn’t write anything for the opinion but he did join it. (To be fair, eugenics was widely accepted between 1907-1939, and Harvard University itself was promoting it, so we can hardly fault presidents like Harding and justices like Holmes and Brandeis too much for following what the best scholars and experts were saying on the subject.)

Best Brandeis quote: “The most important political office is that of the private citizen.”

2. Neil Gorsuch (2017-present). Appointed by Donald Trump. The best justice on today’s court — and in my opinion, the second best justice of all time — is an originalist whose objectivity rarely cracks; a consistently conservative justice, even when his legal opinions happen to align him with liberal politics. Some examples: in United States v. Haymond (2019), he wrote for the 5-4 majority (himself and the four liberals), overturning the lower court’s denial of a trial by jury to a man convicted a second time of carrying child pornography. (Rightfully: a new crime demands a new trial, no matter how despicable the offense. That’s a conservative legal position, though a liberal social point of view.) He joined the liberals against the conservatives to protect immigrants from being deported in Sessions v. Dimaya (2018), striking down a statute about “aggravated felonies” that was unconstitutionally vague. He even joined the liberals on a gun issue in United States v. Davis (2019), in which the Trump administration was trying to over-punish two criminal defendants. Gorsuch, however, has two Achilles’ heels: labor law and religious influence in the public sector. When it comes to church-state issues, he could take a few lessons from Robert Jackson (see #3 below). But on whole, Neil Gorsuch is the justice I’ve been waiting for all my life.

— At his best: Indian Rights. In Washington State Department of Licensing v. Cougar Den Inc. (2019), Gorsuch joined the four liberals to rule that a fuel wholesaler owned by a member of the Yakama Indian Nation was exempt from paying state fuel taxes for using public highways because the Yakama Treaty of 1855 granted members of the Nation the right “to travel upon all public highways” and preempted its obligation to pay the tax. Only two months later, Gorsuch and the liberals ruled again in favor of Indians: In Herrera v. Wyoming (2019), saying (a) that statehood does not imply termination of reserved hunting rights for Indians, and (b) that establishment of a national forest does not render an area occupied — thereby upholding Indian treaties. Liberal politics, but conservative law. Then, in McGirt v. Oklahoma (2020), Gorsuch joined the liberals in ruling that prosecution of crimes by Native Americans on Indian reservations is under the jurisdiction of the tribal courts and federal judiciary, not the state courts. He wrote the opinion for McGirt, stating categorically: “We are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.” McGirt, however, left open the question about crimes committed by non-Natives against Natives on Indian Reservations. The issue was decided in Oklahoma v. Castro-Huerta (2022), with a conservative majority (Barrett having replaced Ginsburg) ruling against Indian jurisdiction. Gorsuch wrote a furious dissent, joined by the three liberals: “Where this Court once stood firm, today it wilts. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another.” It’s a proper dissent — and to stress the point, a conservative one — which appeals to the landmark ruling of Worcester v. Georgia (1823), which has persisted for over 200 years: native tribes retain their sovereignty unless and until Congress ordains otherwise.
Wedding Cakes for Gay Couples. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), the majority (7-2) upheld the right of a private business owner (Jack Philipps) to refuse to design one of his products in a particular way (i.e. the right of a baker to refuse to make a wedding cake that celebrates gay marriage). But the ruling was on narrow grounds, and it stated that it could not provide a precedent for future scenarios like this. In his concurrence, Gorsuch did better than that, taking the case on its merits and arguing that Philipps was justified period in refusing designs for cakes, the substantive point being that private business owners cannot be compelled to create a product that they object to on religious or moral grounds. Stunningly, the Colorado Civil Rights Commission had already acknowledged this very principle in its own treatment of three bakers who refused to bake cakes with anti-gay messages on them. The Commission, said Gorsuch, should have found in the Philipps’ favor, just as it had found in favor for the other three bakers. All four bakers were in the same situation. The three bakers refused to sell a cake that denigrated same-sex marriage, just as Jack Philipps refused to sell a cake celebrating same-sex marriage. Most crucially: The atheist bakers in the first case were happy to sell to persons of Christian faith, just as the conservative Christian baker in the second case was happy to sell to gay people. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers. Gorsuch’s reasoning was absolutely correct. Business owners cannot be compelled to artistic design, only to provide equal access to their products. Whatever they do create, they must sell impartially and without discrimination. But they aren’t obligated to create something in the first place that goes against their religious or moral convictions. Gorsuch’s concurrence should have been expanded on and embraced as the majority opinion.
Separation of Powers. In Gundy v. United States (2019), the question was: could the attorney general both declare that a pre-SORNA sex offender was required to register under SORNA (Sex Offender Registration and Notification Act) and then prosecute him for having failed to register? This placed the power to make a law and the power to enforce it in the same hands, which is a classic violation of the separation of powers. The ruling was 5-4 in favor of a Super-Attorney-General, and Gorsuch wrote the dissent, rightly arguing: “It would be easy enough to let this case go. After all, sex offenders are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else.” Indeed it’s crazy to let the chief prosecutor write his own criminal code — in other words, to write the criminal law for those he’s going to prosecute — as it gives him way too much power over half a million people.
Gay & Transgendered Rights. In Bostock v. Clayton County (2020), Gorsuch wrote for the 6-3 majority (himself, four liberals, and Roberts) ruling that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Gorsuch argued that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin”. His entire reasoning was value-free: Discrimination on the basis of one’s sexual orientation or transgender status is by definition sex discrimination, because in both types of discrimination, an employer must consider the employee’s sex — in other words, the employee’s biological marker of being a man or a woman — before the employer can identify the employee as homosexual (one who is sexually attracted to someone of the same sex) or transgender (one who is identifying with the other sex). Without the employer’s consideration of the employee’s sex, it would be impossible for that employer to discriminate against the employee on the basis of sexual orientation or transgender status. “Sexual orientation” and “transgender” cannot be defined, let alone understood, without explicit reference to sex. It doesn’t matter that gays and transgendered aren’t explicitly named in the Act, or that they weren’t intended at the time of writing — anymore than it matters that interracial marriage wasn’t intended to be protected by the Equal Protection Clause when written in 1868. Bostock is a solid example of value-free orignalism and gives lie to the myth that orignalism yields outcomes mostly favorable to conservative politics.

— At his worst: Prayer in Public Schools. In Kennedy v. Bremerton School District (2022), Gorsuch, for whatever bizarre reason, decided that a football coach’s prayer at midfield was private speech, not governmental, and therefore he had the right to kneel and pray without any interference from the school officials. But the coach’s speech was obviously not private. Even though it was after the game, he was still acting in his role as a public employee. He was engaging in a prominent public display of religiosity, and the school officials had every right to tell him that such behavior is inappropriate. Now school officials don’t have that right anymore, thanks to Gorsuch.
Labor Laws and Unions. In Epic Systems Corp. v. Lewis (2018), the Court upheld the validity of employment contracts in which employees give up their right to collective litigation against their employer. Gorsuch penned the decision, first framing the issue as a straightforward matter of resolving a potential contradiction between two federal statutes: “It is this Court’s duty to interpret Congress’s statutes as a harmonious whole.” But it’s not the Supreme Court’s duty to do that, but rather to examine each statue on its own constitutional merits. Gorsuch is usually better than that. The result is that without class action options, employees will be less able to sue, and employers less accountable to their employees. Gorsuch also joined the terrible ruling of Janus v. American Federation of State, County, and Municipal Employees (2018), which decreed that the extraction of agency fees from non-consenting public-sector employees violates the First Amendment — which it does not. Just because a person disagrees with the politics of a union doesn’t mean that being forced to pay an agency fee violates his or her free expression. It keeps the person from being a freeloader and reaping benefits that others pay for.

Best Gorsuch quote: “Originalism is the worst form of constitutional interpretation, except for all the others.”

3. Robert Jackson (1941-1954). Appointed by Franklin Delano Roosevelt. First of all, this man could write. Take this, on the subject of free speech: “In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” Or this: “Compulsory unification of opinion achieves only the unanimity of the graveyard.” His legacy, aside from prosecuting Nazis at the Nuremberg trials, was a consistent defense of free expression and maintaining a high wall of separation between church and state. It’s interesting that he and Hugo Black (see #6 below) hated each other so much (especially when Black shafted Jackson out of a chief justice nomination), when they were very similar in their approach to jurisprudence; strangely, they each dropped the ball on free speech on a singular occasion: Jackson came down hard on communist assemblers (for which Black rightly blasted him) and Black came down on public school students wearing armbands to protest the Vietnam war. No justice is perfect. We could certainly use a Robert Jackson on today’s court, where religion is being increasingly defended in the wrong places, even by first-rate justices like Neil Gorsuch.

— At his best: Free Expression. In Virginia State Board of Education v. Barnette (1943), Jackson wrote for the majority, striking down requirements in public schools to salute the flag and recite the Pledge of Allegiance. It’s one of his most famous opinions.
Separation of Church and State. In Everson v. Board of Education (1947), he dissented when the 5-4 majority ruled that a New Jersey law providing public payment of transportation costs to and from Catholic schools did not violate the Establishment Clause. Jackson said rightly that it did violate the clause. Likewise he dissented in Zorach v. Clauson (1952), when the 6-3 majority said that a public school district could allow students to leave school for part of the day to receive religious instruction, as long as the instruction took place away from the school and didn’t have public funding. Jackson rejected even those conditions, maintaining a firm church-state division, and concluded: “Today’s judgment will be more interesting to students of psychology and of the judicial processes than to students of constitutional law.”
Presidential Power. In Youngstown Sheet & Tube v. Sawyer (1952), he wrote a concurring opinion about presidential power which is one of the most widely cited opinions in SCOTUS history. The background involved Truman seizing control of steel production facilities during a strike to keep the productions running. Hugo Black wrote for the 6-3 majority, denying Truman the right to do this, but it was Jackson’s concurrence that outlined the now-famous three-tiered test for presidential power as follows: (1) cases in which the President is acting with express or implied authority from Congress, in which case “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate”; (2) cases in which Congress has thus far been silent, in which case “his authority can derive support from congressional inertia, indifference or quiescence”; (3) cases in which the president is defying congressional orders, in which case “his power is at its lowest ebb, and the Court can sustain his actions only by disabling the Congress from acting upon the subject”.
Internment of Japanese Americans. In the appalling case of Korematsu v. United States (1943), Jackson was one of three dissenters, arguing against the use of executive power to deprive citizens of their basic rights. Not even national security warrants that, especially when there’s not a shred of evidence against those being detained. The internment of Japanese Americans, said Jackson, was terrible and would set a precedent for war-time racial discrimination.
Desegregation. In Brown v. Board of Education (1954), the Court voted unanimously to overturn the “separate but equal” doctrine of Plessy v. Ferguson (1896). The court ruled that separate facilities were inherently unequal, according to the Equal Protection Clause of the Fourteenth Amendment. Earl Warren wrote the opinion, and there were no dissents or concurrences. But Jackson did write a concurring draft before he was suddenly hospitalized by the end of March. He was released on May 17, when the ruling of Brown was delivered, so that he could be present for the important 9-0 decision. His unpublished concurrence wasn’t made available until 1986, during the scandal of William Rehnquist’s confirmation hearing. As a law clerk under the Warren court, Rehnquist had written privately to Jackson, urging that Plessy should be upheld. When questioned about it during his confirmation hearings, he lied, claiming that it was Jackson who said this. In fact Jackson believed that Plessy should be overturned but he struggled to find a constitutional argument for it. His unpublished concurrence stated that (1) he was “predisposed to the conclusion that segregation has outlived whatever justification it may have had”; (2) yet he found no evidence that segregation was prohibited, particularly since states that had ratified the Fourteenth Amendment had segregated schools at the time; (3) the enforcement of desegregation should ideally be left to Congress, since the “courts have no power to enforce general declarations of law”, but in this case the Court must act because “our representative system has failed”; (4) changed conditions in America, along with the importance of a public education, required the Court to strike down the “separate but equal” doctrine in public education. In other words, while Jackson couldn’t legally justify Warren’s ruling in Brown, he did so on the basis of social imperatives, which was unusual for him. My own feeling is that Warren’s opinion was legally justified (on the basis of the Equal Protection Clause, just as he argued), and that Jackson was second-guessing himself too much. He did the right thing, if by the wrong road, but he certainly wasn’t a Plessy supporter as Rehnquist claimed (who was projecting his own prejudices onto Jackson in order to secure his chief justice confirmation).
Procedural due process. Jackson was a staunch defender of protecting people from overreach by government agencies. Before depriving someone of life, liberty, or property, due process is required — an unbiased trial, being notified in advance, the right to present evidence and call witnesses, to know the opposing evidence, to cross-examine, to have legal counsel, etc. It was largely for this reason that Truman appointed Jackson to prosecute Nazi war criminals at Nuremberg, granting him a leave of absence from the court between 1945-46. In this, Jackson presented a good face of America to the world: even the lowest Nazi war criminals deserve due process.

— At his worst: Communist sympathizers. In Dennis v. United States (1951), the Court ruled 6-2 that Eugene Dennis had “conspired and organized for the overthrow and destruction of the United States government by force and violence”. This was a load of horseshit, and it’s amazing that Jackson joined this ruling. Hugo Black was one of the two dissenters (see #6 below, for the full citation), blasting the majority as fools — for Dennis and his friends hadn’t been engaged (or even charged) with any immediate overt acts of any kind. All they’d been doing was assembling and talking about communist writings that teach the overthrow of the U.S. government. This was a failure of SCOTUS to uphold basic free speech rights (something Jackson was usually good about), but then this was the McCarthy era.

Best Jackson quote“Compulsory unification of opinion achieves only the unanimity of the graveyard.”

4. John Marshall Harlan (1877-1911). Appointed by Rutherford Hayes. Not to be confused with his grandson John Marshall Harlan II (who served on the Court from 1955-1971, and wasn’t a very good justice), the first John Marshall Harlan was a former slave holder and proponent of slavery. He swore during the Civil War that he would resign from the army if Lincoln signed the Emancipation Proclamation, but later repented (in 1871) and 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 in cases that restricted civil liberties. It was a dark period on the Court when many constitutional provisions were dead letters. Harlan advocated (in vain) that the Bill of Rights be incorporated into the Due Process Clause of the Fourteenth Amendment (ratified in 1868), and thus applied to state and local governments. 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 a pack of justices who ruled that racially segregated public facilities were fine, as long as they were “equal”. He was certainly no activist and paid proper deference to state legislatures. But he used common sense on a court filled with judicial blindness. I rank Harlan at #4, but he’s actually the justice I respect most for standing alone (very often) against the scorn of his colleagues.

— At his best: Civil Rights. In The Civil Rights Cases (1883) — five separate cases brought by African Americans suffering racial discrimination — the issue at hand was the Civil Rights Act of 1875. This congressional law outlawed acts of racial discrimination, but the court ruled 8-1 that the Fourteenth Amendment only prohibited state acts of discrimination, not acts committed by private individuals and privately owned businesses. Harlan argued that to allow acts of discrimination in the private sphere created a badge of slavery that marks minorities as inferior, thus violating the Reconstruction Amendments (13th, 14th, and 15th). (The Court actually acknowledged that the Thirteenth Amendment does apply to private actors, but only to prohibit people from owning slaves, not from engaging in general discriminatory behavior.) Harlan’s dissent fell on deaf ears.
Incorporating the Bill of Rights. In Hurtado v. California (1884), a 7-1 majority ruled that state governments were not obligated to use grand juries in criminal prosecutions. Harlan was the lone dissenter, in his first major push for incorporating the Bill of Rights (in this case the Fifth Amendment) into the states, and not just the federal government.
Racial Segregation. Most famously, he dissented in Plessy v. Ferguson (1896), in which the 7-1 majority ruled that segregation laws don’t violate the Constitution as long as the facilities for each race are equal in quality. As Harlan pointed out, this doctrine of “separate but equal” is an oxymoron:

“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.”

His “color-blind” comment became famous, 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 what it was (see #3 above, under Robert Jackson). Harlan also dissented in Berea College v. Kentucky (1908), which ruled that states could prohibit private schools from admitting both black and white students.
Colonialism. In Downes v. Bidwell (1901), the Court ruled 5-4 that the Constitution doesn’t necessarily apply to American territories like Puerto Rico, Hawaii (before it was a state), the Philippines, and Guam, and Congress has jurisdiction to create laws within territories that would not be allowed by the Constitution. Harlan was incensed, writing: “It will be an evil day for American liberty if the theory of a government outside the Supreme Law of the Land finds lodging in our Constitutional Jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution.” Harlan was as anti-imperialist as he was anti-racist.
Voting Rights. In Giles v. Harris (1903), the Court refused (in a 5-4 ruling) to assist African Americans in Alabama who were being denied the right, and it was none other than Oliver Wendell Holmes (see #9 below) who wrote the ruling. The case involved Alabama’s efforts to limit voting to those who owned property and could pass a literacy test. Giles (suing for more than 5000 black citizens) asked the Court to add the names of many black citizens to the voting rolls, but Holmes denied the request because the voting regime was fraudulent, and it was not for the Court to add names to a fraudulent system. In other words, because the system is unfair, Holmes wouldn’t make it more fair by adding names to an unfair system. Further, because the case was brought in equity, rather than as a constitutional challenge, Holmes believed it would not be proper to invalidate it (even though he believed it was invalid). Harlan dissented, believing that the Court did have jurisdiction to invalidate the law, and said that Holmes and the majority were copping out.

— At his worst: The Chinese. Harlan wasn’t perfect. If he was enlightened with respect to Africans and other races, he had deep prejudices against the Chinese. In United States v. Wong Kim Ark (1898), the Court ruled 7-2 that people of Chinese descent born in the United States were citizens by birth. Chief Justice Fuller and Harlan dissented, and Harlan actually said: “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. I allude to the Chinese race.” Like the chief justice, Harlan believed there were dangers of having large numbers of Chinese immigrants in the U.S.

Best Harlan quote: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

5. Elena Kagan (2010-present). Appointed by Barack Obama. She’s the best liberal to sit the court in the past 40 years, with no axes to grind and a broad view of the law. She has allied with conservatives on the court more frequently than other liberals, which means nothing in itself, but may just be an indication (and it is) that she interprets the law as a judiciary and not a tribal ideologue. For example, she joined the five conservatives in favor of Jack Phillips, the baker who had refused to make a cake for a gay couple’s wedding, whereas Ginsburg and Sotomayor dissented. She joined the conservatives in allowing a forty-foot-tall cross commemorating soldiers who died in World War I to remain on public land in Maryland. Ginsburg and Sotomayor found the Christian symbolism to be overwhelming and a violation of the establishment clause of the Constitution. Kagan recognized that the cross was acceptable because it dated back to the 1920s and belonged to a venerable line of World War I memorials, whose particular religious significance had faded over time. Kagan’s intellect is so sharp that it led Harvard law professor Mark Tushnet to predict in 2013, that someday the Supreme Court might be formally led by Chief Justice Roberts, but intellectually led by Justice Kagan. Of course, that was before Neil Gorsuch joined the court. Both he and Kagan are the best of today’s court, and they both rank on my list of the best justices of all time. Like Gorsuch, Kagan is especially good in her dissents and writes with a razor when the situation calls for it.

— At her best: Union Agency Fees. In Janus v. American Federation of State, County, and Municipal Employees (2018), Kagan went on the full offensive in her dissent against the attack on unions: “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. The First Amendment was meant not to undermine but to protect democratic governance, including over the role of public-sector unions.” She was right. Janus is one of the most poorly reasoned SCOTUS decisions in the 21st century.
Gerrymandering. In Rucho v. Common Cause (2019), the conservative majority (led by Chief Justice Roberts) ruled that partisan gerrymandering claims present political questions beyond the reach of the federal courts. (Gerrymandering is the manipulation of electoral boundaries so as to favor one party or class of citizens over another.) Kagan made another trenchant dissent: “The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.” Rucho most certainly involved a constitutional question; Roberts (and the other conservatives) were just throwing up their hands because they didn’t want to get them dirty.
Deportation. Kagan is just as good in writing for a majority. In Sessions v. Dimaya (2018), she wrote for the liberals and Gorsuch, striking down an immigration statute that defined “aggravated felonies” as unconstitutionally vague. The Immigration and Nationality Act (INA) classified these categories, and legal immigrants convicted of those crimes were getting unjustly shafted with deportation.
Free Speech. In Iancu v. Brunetti (2019), Kagan wrote for a 6-3 victory in striking down a law banning vulgar or scandalous trademarks. Applying that rule, the government had denied a trademark for the name “FUCT,” concluding that it was phonetically equivalent to the past tense or past participle of “fuck”. Kagan argued that the trademark law’s restriction violates the First Amendment because “it disfavors certain ideas”. Note the dissenters in what should have been a 9-0 slam dunk: Roberts, who said that while the First Amendment protects freedom of speech, “it does not require the government to give aid and comfort to those using obscene, vulgar, and profane modes of expression”; and liberals Sotomayor and Breyer, to their shame. So in this very interesting case, four conservatives and two liberals upheld the First Amendment, while one conservative and two liberals did not. This weight of opinion lends credence to the claim that the stronger threats to free speech come more from the left than the right. I’m glad that it was a liberal justice who penned the decision.

— At her worst: No objectionable rulings or opinions stand out in particular. I’ve been routinely impressed with Kagan.

Best Kagan quote: “My politics would be, must be, have to be, completely separate from my judgment.”

6. Hugo Black (1937-1971). Appointed by Franklin Delano Roosevelt. Like John Marshall Harlan (#4), Hugo Black represents a 180-degree turn from an ugly past, in his case being a member of the Ku Klux Klan. People joked that as a young man he wore white robes and scared black people, and as an older man he wore black robes and scared white people. Despite his inclinations to uphold FDR’s New Deal regulations and expand the federal government, Black defied the easy categorization of a liberal. He was in many ways a judiciary conservative, and some scholars say that he was the most politically liberal originalist who ever sat on the Court. He believed in judicial restraint, and insisted that judges rely on the intent of the framers as well as the “plain meaning” of the Constitution’s words. He fervently opposed the idea that justices should be activists, social engineers, or rewriters of the Constitution. This often goes unnoticed: before the arch-conservative Scalia there was the flaming liberal Black, both judiciary conservatives. The Stone-Age Robert Bork later wrote in admiration: “Justice Black came to have significantly more respect for the limits of the Constitution than Justice Douglas and the other leading members of the Warren majorities ever showed.” So while Black was often on the same page of opinion with Warren and his activist liberals, he usually arrived at those opinions by a safer road.

— At his best: Free expression. Black was a free speech absolutist, maintaining that Congress could not make any laws that abridged the First Amendment. In Dennis v. United States (1951), he was one of two dissenters against the majority who ruled that a member of the Communist Party USA had “conspired and organized for the overthrow and destruction of the government by force and violence”. This was pure horseshit (but it was the McCarthy era, so no surprise), and Black dissented as follows: “The petitioners were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date. The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which the First Amendment forbids.”
Separation of church and state. Black believed in a fairly high wall of separation between church and state. He dissented (along with Robert Jackson, see #3 above) in Zorach v. Clauson (1952), when the 6-3 majority said that a public school district could allow students to leave school for part of the day to receive religious instruction, as long as the instruction took place away from the school and didn’t have public funding (meaningless qualifiers that didn’t fool Black or Jackson for a moment). And in Engel v. Vitale (1962), he wrote for the majority, ruling against teacher-led prayer in public school classrooms. However, his wall of separation wasn’t quite as high as Jackson’s (see further below).
Incorporating the Bill of Rights. Black crusaded on this point, believing (like John Marshall Harlan decades before, see #4 above) that the entirety of the federal Bill of Rights was applicable to the states. This was a hard sell, however, given the precedent of Barron v. Baltimore (1833), which had ruled that the Bill of Rights was binding only upon the federal government. According to Black, the Fourteenth Amendment, ratified in 1868, “incorporated” the Bill of Rights to make it binding on the states. Especially the Privileges or Immunities Clause, which says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Black insisted that “privileges or immunities” encompassed the rights mentioned in the first eight amendments to the Constitution. He never achieved the support of other justices for this view, and from the ’30s to the ’50s it was pretty much just the First Amendment that was binding on the states (thanks to Gitlow v. New York (1925)). His crusade paid off in the long run, though. In the ’60s under Earl Warren, the Court made almost all guarantees of the Bill of Rights binding on the states. Gideon v. Wainright (1963) did it for the Sixth Amendment, Mapp v. Ohio (1961) did it for the Fourth Amendment. Malloy v. Hogan (1964) did it for the Fifth Amendment. If the Court rejected Black’s theory of total incorporation, the end result was mighty damn close to what Black had crusaded for. Today, the only parts of the first eight amendments that haven’t been extended to the states are the Third and Seventh Amendments, the grand jury clause of the Fifth Amendment, and the Eighth Amendment’s protection against excessive bail. I count Black’s crusade a success in this regard, and a very important one.
Voting Rights. Black was an adamant proponent of the “one man, one vote” principle, believing in electoral reforms of universal suffrage, proportional representation, and the elimination of plural voting and gerrymandering. He wrote for the 7-2 majority in Wesberry v. Sanders (1964), holding that the Constitution required congressional districts in any state to be approximately equal in population. He also joined the 8-1 ruling in Reynolds v. Sims (1964), which extended the same requirement to state legislative districts on the basis of the Equal Protection Clause.

— At his worst: Internment of Japanese Americans. The greatest stain on Black’s career was his opinion for the 6-3 majority in Korematsu v. United States (1943), which ruled that the internment of Japanese Americans during World War II was permissible. Robert Jackson was one of three dissenters (see #3 above), rightly arguing against the use of executive power to deprive citizens of their basic rights. Not even national security warrants that, especially when there’s no evidence against those being detained. It’s astonishing that a civil libertarian like Black wrote an opinion like this, but it goes to show how far even the best people fall in times of war.
Free expression, Part 2. Black was a free speech purist — insisting that the First Amendment is “wholly beyond the reach of federal power to abridge” — but he also took a narrow view of what constituted speech. He didn’t consider conduct like flag-burning to be protected. So he wasn’t quite the absolutist he thought he was, and in Tinker v. Des Moines (1969), he dissented against the 7-2 majority, which ruled that in order to regulate speech in the classroom, public school officials had to have a constitutionally valid reason — in other words, that the conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school”. In this case, the five students in Des Moines were simply wearing black armbands in protest of American involvement in the Vietnam War. The Court rightly ruled in favor of them. But Black saw this conduct as falling into the category of “disruptive symbolic speech” (like flag burning), and dissented, saying that such conduct was beyond the purview of the First Amendment.
Separation of church and state, Part 2. As stated above, Black believed strongly in separation between church and state, and in most cases ruled accordingly, but on one significant occasion he made an exception that undermined his own logic. Writing for the majority in Everson v. Board of Education (1947), he ruled that a New Jersey law providing public payment of transportation costs to and from Catholic schools didn’t violate the Establishment Clause. (Jackson correctly insisted that it did violate the clause; see #3 above). It’s worth citing Black in full:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’ That wall must be kept high and impregnable.”

The four dissenters, led by Jackson, agreed with this as spelled out (as who could not?), while pointing out that these very principles led to the invalidation of the New Jersey law that Black was defending. For obviously the funds used here were raised by taxation. Parents paid money to send their kids to private schools and the funds raised by taxation were being used to reimburse them. This goes beyond merely helping the children get to school. It helps them get the very thing they are sent to private school for: religious education. It’s funny how Black got this so wrong.
Substantive due process. Black rejected the idea that courts can establish rights protecting one from government interference, if those rights aren’t specifically mentioned in the Constitution. Most justices (rightly) believe that such protections come from the due process clauses of the Fifth and Fourteenth amendments. Black believed this interpretation was unjustifiably broad, and in his dissent to the 7-2 ruling of Griswold v. Connecticut (1965), he said that because the Constitution doesn’t mention privacy in any of its provisions, the majority had no basis to strike down Connecticut’s Comstock Law which made the sale of contraceptives illegal: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” That’s a terrible dissent.

Best Black quote: “A union of government and religion tends to destroy government and degrade religion.”

Honorable mentions

The last three are honorables. There’s much I admire about them, but their faults are deep enough to nearly balance the positives (in the cases of Field and Scalia) or the legacy is somewhat overrated (in the case of Holmes).

7. Stephen Field (1863-1897). Appointed by Abraham Lincoln. His most important opinions were dissents, so ringing and profound that they showed the real potential in bucking against the majority. Written well, dissents appealed to the wisdom of a future day, when later rulings might correct present errors. Field famously dissented in The Slaughterhouse Cases (1897), which ruled that the Due Process Clause of the Fourteenth Amendment protected only privileges and immunities pertaining to federal citizenship, not state citizenship. Thanks to that ruling, a Louisiana law that put a thousand butchers out of business was upheld. Field said that the Court’s ruling effectively rendered the Fourteenth Amendment a “vain and idle enactment”. In this he was like John Marshall Harlan (see #4 above) and Hugo Black (#6 above), calling for the extension of basic rights to the state governments as much as the federal. They would all be vindicated by the end of the 1960s. But if Field was stellar on the subject of due process, he was overboard on the subject of freedom to contract. His laissez-faire economics (for which I have sympathies) was too laissez-faire and helped make possible the Lochner era of 1905-1937. Best quote: “The assault on capital is the stepping-stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich.”

8. Antonin Scalia (1986-2016). Appointed by Ronald Reagan. He was the catalyst for a much needed return to originalism and textualism that had been lost during the Warren years, and he was the first justice who made me think hard about the role of the Supreme Court when I began dabbling in the ’90s. I found a transcript of the oral arguments of Texas v. Johnson (1989) — the famous flag burning case — and read it many times over, struck by how Scalia ended up joining hands with the liberals to make a 5-4 ruling that it was okay to burn the American flag. He would later write opinions like Brown v. Entertainment Merchants Association (2011), ruling that violent video games have First Amendment protection, and the government cannot enforce parental consent when it comes to video games. Also surprisingly, he dissented in Hamdi v. Rumsfeld (2004), a terrible ruling that upheld the detainment of Yaser Hamdi, an American citizen, as an enemy combatant (Scalia said that Hamdi had to be either charged with a crime or freed right away). I wish Scalia had applied his originalism more consistently, and that he hadn’t made awful rulings favoring big corporations, but I can’t deny his important contributions. And when a liberal like Elena Kagan (see #5 above) acknowledges that “we’re all originalists now, thanks to Scalia”… well, that’s saying quite a lot. Best quote: “The judge who always likes the results he reaches is a bad judge.”

9. Oliver Wendell Holmes (1902-1932). Appointed by Theodore Roosevelt. Holmes is a giant, and for me he looms larger than John Marshall and Earl Warren who were too activist. For Holmes, judicial restraint was imperative, so much that he said: “If my fellow citizens want to go to Hell, then I will help them. It’s my job.” That might be my favorite quote from any SCOTUS justice. And yet there’s something about Holmes’ stature that seems overblown. I don’t know. As I comb through his writings, no opinion on its own suggests a towering greatness. It’s rather the cumulative force of his opinions, and his insane bestseller The Common Law (1881), that gave him that. I can’t leave him off the list with a clean conscience, so he’s the last honorable mention. Best quote: “If my fellow citizens want to go to Hell, then I will help them. It’s my job.”

And Nine Black Robes were gifted to men, who above all else desire power

Now for some fun. I’ve sometimes wondered if Tolkien’s Nazgul were inspired by the highest court in America: nine elderlies in black robes given supreme power. As my last post shows, justices invested with that kind of legal authority can land results so evil that Sauron may as well be in charge. But if that’s true, who are the Nazgul of the Supreme Court?

This is what I came up with:

1. Murazor the Witch-King: William Rehnquist (1972-2005)
2. Khamul the Easterling: Roger Taney (1836-1864)
3. Dwar the Dog-Lord: Samuel Alito (2006-present)
4. Indur the God-King: John Rutledge (1790-1791, 1795)
5. Akhorahil the Storm-King: James McReynolds (1914-1941)
6. Hoarmurath the Ice-King: Henry Billings Brown (1891-1906)
7. Adunaphael the Silent: Amy Coney Barrett (2020-present)
8. Ren the Insane: Henry Baldwin (1830-1844)
9. Uvatha the Horseman: Brett Kavanaugh (2018-present)

In assigning justices to Nazgul roles, I’m obviously being tongue in cheek, though not entirely. This isn’t my official list of the “nine worst justices” in American history, but many of them would indeed make the cut if I ever did such a list. To make this list, the justice had/has to be either very bad or moderately bad, and share a Nazgul’s characteristics, however artificially. Sometimes I even drew on things the justice said or did prior to joining the Court. (For an official list I would stick exclusively to what the justice did on the Court in his or her capacity as a justice.) So with that in mind, enjoy, and click on the images to see them more clearly.

1. Murazor the Witch-King: William Rehnquist (1972-2005). Appointed by Richard Nixon. For the Witch-King I needed a Chief Justice with evil jurisprudence, and who came from the cold north. Wisconsin man William Rehnquist is the uncontested candidate. His judicial philosophy was result-oriented, activist, and authoritarian — everything you don’t want in a justice. He was no friend to liberty, equality, and human rights. As a law clerk, he had written privately to Justice Robert Jackson, saying that Plessy v. Ferguson (1896) was correct at the time, still correct now, and should be reaffirmed; when questioned about it during his confirmation hearings, he lied, claiming that it was Jackson who said this. Rehnquist was a political conservative but not a judicial conservative — unlike Antonin Scalia, who was both, and could go against his own politics when the Constitution demanded it. That’s why, for example, in Texas v. Johnson (1989), Rehnquist said that people shouldn’t have the right to burn the American flag. While Scalia personally hated flag-burners, he joined the liberals for a 5-4 ruling which defended flag-burning and the First Amendment. Rehnquist wrote or joined opinions that scaled back protections given to criminal defendants; dismantled school desegregation orders; and loosened the barrier between church and state. For this he gets the honor of being the Witch-King: the Lord of the Nazgul-Justices.

2. Khamul the Easterling: Roger Taney (1836-1864). Appointed by Andrew Jackson. For the Second of the Nine, I needed a real son of a bitch from the east, and that would be Roger Taney from Maryland. History will always remember him for authoring the worst ruling of all time, Dred Scott v. Sandford (1857), which said that Congress could not grant citizenship to slaves or their descendants. But Taney was bad in general, as he took his vision from the man who appointed him. As Chief Justice he became an exponent of Jacksonian “democracy”: the spoils system, manifest destiny, anti-banking, and universal suffrage for white males. While nominally in favor of the underdog, Andrew Jackson personified everything the old-school Jeffersonians feared in the new frontier politics: non-accountability, demagoguery, contempt for liberty (despite the rhetoric for “rights of the common man”), and rank appeal to the uneducated. Where the Marshall Court had broad views of congressional power, Taney’s Court did not, and gave undue privilege to the executive. Taney richly earns his stripes as Khamul, the Second of the Nine. Watch for him at Sauron’s mountain in Mirkwood Forest.

3. Dwar the Dog-Lord: Samuel Alito (2006-present). Appointed by George W. Bush. For Dwar I needed a justice with anger issues, and I didn’t have to think twice. Samuel Alito is renowned for his anger, and it’s easy for me to imagine him as a neo-Dwar, nursing hatreds that go back to his childhood, and now as an adult using his influence and power to fight back at the “world”, as he sees it, to address his goddamn grievances at the expense of everyone else’s rights. He has trampled on the First Amendment as a lone dissenter, in United States v. Stevens (2010) and Snyder v. Phelps (2011). He has reduced unions and legitimated freeloading in Janus v. AFSCME (2018), while quipping with a straight face, “Nonunion members are not free riders at all, they are captive riders.” He overthrew Roe v. Wade in Dobbs v. Women’s Health Organization (2022). Roe was an admittedly bad ruling (and who knows, maybe Dobbs will eventually produce more Kansas furies and better legislative results), but there is no doubt in my mind that Alito was hell-bent on overthrowing Roe for personal as much as legal reasons. His nickname “Scalito” is thoroughly unearned, as he is nothing like Scalia or Thomas. He is un-originalist to a fault. Watch for him at the Teeth of Mordor, where he trains the most vicious hounds of Middle-Earth.

4. Indur the God-King: John Rutledge (1790-1791, 1795). Appointed by George Washington. Indur Dawndeath, also known as the God-King Ji Amaav, ruled territory in southern Middle-Earth where slavery was the way of life, disappeared and kept coming back in various incarnations (Jim Amaav I, II, III, and IV). Rutledge was like that, a South Carolina man owning sixty slaves, acting the deity as he pleased, leaving the court in 1791 without ever having heard a single case. He then returned to the Supreme Court in 1795 — this time as Chief Justice — but as before, not staying seated for more than a year. He did enough damage during that short stint, taking it upon himself to publicly denounce George Washington’s Jay Treaty with Britain, even though the treaty averted a costly war that would probably have defeated America. (For Ji Amaav, war, war, and war was the only reason to live.) Rutledge went so far as to say “I would rather the President should die than sign that treaty”. That offended the hell out of people, and by the time of his formal nomination to the Court in December 1795, Rutledge’s reputation was a shambles. The Senate refused to confirm his appointment, and he responded by trying to kill himself — jumping off a wharf into Charleston Harbor. He was rescued by two slaves, which he absolutely didn’t deserve; as an attorney he had defended individuals who mercilessly abused their slaves, and he had gone out of his way to persuade the Constitutional Convention to not abolish slavery. What can be said about Rutledge? He spat in the eye of peace, said that his president (one of the greatest ever) deserved to die, never took his judicial mandate seriously, and like any god-emperor said and did as he damn well pleased.

5. Akhorahil the Storm-King: James McReynolds (1914-1941). Appointed by Woodrow Wilson. The Storm-King was a nasty piece of work. He beat and raped his sister-wife almost every day, and killed castle servants who displeased him in the slightest. Justice James McReynolds didn’t do things like that, but I’m sure he would have if he thought he could get away with it. Chief Justice Taft described him as “selfish to the last degree and fuller of prejudice than any man I have ever known”. Taft wasn’t exaggerating. McReynolds wouldn’t accept Jews, blacks, women, smokers, or drinkers as law clerks. When Louis Brandeis (the first Jew on the Supreme Court, and in my view the best justice of all time) ever spoke, McReynolds would leave the room. Likewise, when the Jewish justice Benjamin Cardozo delivered an opinion from the bench, McReynolds would hold a brief or record in front of his face. He refused to sign any opinions that were authored by Brandeis or Cardozo, regardless of their merits. Nor would he speak to some of the liberal justices. He made misogynistic comments in front of women. He dissented in Steward Machine v. Davis (1937), which upheld the Social Security Act. There was other New Deal legislation that he opposed fairly enough, but he was far too pro-Lochner to retain any credibility in a world that saw the need for unions and labor standards to maintain a minimum of human decency. He was a true piece of shit, and no one you’d want to break bread with, anymore than you’d want to visit the Storm-King’s castle.

6. Hoarmurath the Ice-King: Henry Billings Brown (1891-1906). Appointed by Benjamin Harrison. Hoarmurath comes from the wintry forested northeast corner of Middle-Earth, and so here I needed a justice from my home region of New England. Henry Billings Brown grew up in Massachusetts and Connecticut, and is famous for writing the abominable Plessy v. Ferguson (1896), in which he ruled that separate facilities for black and white people are fine, as long as they are “equal” — thoroughly oblivious to the fact that “separate but equal” is an oxymoron. He joined other atrocious rulings, such as Lochner v. New York (1905), which said that employees can work as many hours as their employer wants them to. On top of those, he wrote the rulings for two Insular Cases, in particular Downes v. Bidwell (1901), which held that the Constitution doesn’t necessarily apply in American Territories like Puerto Rico, and citizens there cannot expect constitutional rights. After he retired, he went on a crusade against women’s suffrage, giving speeches on why women should not vote and instead adhere to their proper ordained roles. This makes him a perfect fit for the Sixth of the Nine. Hoarmurath was born and reared in a matriarchal culture, and it was he who brought the matriarchs to their knees, supplanting it with his reign of terror. (He killed his mother, the last Matriarch of the Urdar, and sent pieces of her body to every surrounding forest announcing the new way of things.) Look for him in the arctic-cold forest of Dír.

7. Adunaphael the Silent: Amy Coney Barrett (2020-present). Appointed by Donald Trump. For the female Nazgul my options were limited: Sandra O’Connor, Ruth Ginsburg, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett. It had to be either Sotomayor or Barrett (O’Connor was a very good justice, as was Ginsburg, and Kagan is excellent), but Sotomayor is hardly silent. Barrett, however, is indeed a “silent justice” if there ever was one. In the two years she has been on the court she hasn’t distinguished herself — hasn’t written a single thing that stands out as praiseworthy — and consistently keeps a low profile. She often writes nothing at all, and when she does, she barely bothers to explain herself, unlike other justices who defend their opinions with verve. Some have her pegged as a politically conservative loyalist who operates under the guise of judicial originalism, and I suspect that may well be the case. A Neil Gorsuch she is definitely not, nor even an Antonin Scalia, for whom she professes respect. Watch for her in southern Mordor, where she works her evil mischief.

8. Ren the Insane: Henry Baldwin (1830-1844). Appointed by Andrew Jackson. For Ren I needed a crazy justice with contempt for other peoples, and the one who really fits the bill is Henry Baldwin. Baldwin insisted that juries respect the legality of slavery, and he was the lone dissent in United States v. The Amistad (1841), which ruled that 36 kidnapped African adults and children who were on board the ship had to be freed. Baldwin had none of it, insisting that as a matter of constitutional law, slaves are property, not people. He was also the lone dissent years before, in the landmark Worcester v. Georgia (1832), which ruled that states have no jurisdiction in Indian Country. Baldwin had none of that either; he read the Constitution as implying that the national existence of the Indian tribes was subject to the power of the states. He had the reputation of being an incoherent jurist — shockingly so, at times — and had mental health problems during his tenure on the Court. Look for him on the grassland plains of Chey Sart, where he commits countless genocides.

9. Uvatha the Horseman: Brett Kavanaugh (2018-present). Appointed by Donald Trump. Uvatha is the messenger boy for the other Ringwraiths, constantly galloping between Mordor and Mirkwood. His conquests and dominions aren’t nearly as impressive as those of the other eight, though you’d never dare tell him that, given his explosive temper. For this Nazgul I needed a justice full of himself, who doesn’t realize there’s less to him than meets the eye. Brett Kavanaugh fits the bill. He’s so despised that an assassination attempt was made on him, and he has written exactly one good opinion (out of 77 opinions to date): Manhattan Community Access Corp. v. Halleck (2019), ruling that a private corporation operating public access channels is not a governmental actor subject to the First Amendment; and thus the corporation was within its rights to suspend contributors from using the station’s public services and facilities. Even if we don’t approve corporations like Facebook and Youtube trying to police their functional equivalent of a digital town hall (these big techs exercise more control over the public discourse than any government ever dreamed of having), we should acknowledge their right to do so. Aside from this ruling, Kavanaugh has written mostly garbage. He makes not serious arguments, but noise — a lot like Uvatha the Horseman, who shrieks loud enough to split the heavens asunder.

Next post: The Supreme Court Paladins

The Worst Supreme Court Rulings

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.

 

  Ruling
Year
Issue
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.

The Worst Opinions of Samuel Alito

After ranking the best opinions of the best justice, one of my readers suggested ranking the worst of the worst. I aim to please.

It’s worth noting that I’m not the only one who has been calling Alito the worst SCOTUS justice. Five months after I ranked the justices, law professor Adam Lamparello did his own ranking. Like me he put Gorsuch and Kagan at top (though Kagan first and Gorsuch second), and Alito at rock bottom. I had no idea my views aligned this closely with any expert opinion until it was recently pointed out to me.

1. Snyder v. Phelps (2011)

The issue at stake: Free speech
The ruling (8-1): The Westboro Baptists have the right to picket funerals with homophobic hate speech
Alito’s opinion: The lone dissent

I call this Alito’s worst opinion, since it shows his ignorant and unabashed contempt for the First Amendment. He’s so bothered by the negative emotive power of speech — the power of speech to distress or upset people — that he is willing to render void the most basic of American rights. In this case, the other justices ruled that homophobic hate paraders had the right to picket military funerals: a slam-dunk 8-1 decision that should have been 9-0. The four liberals and four conservatives were as one: as long as the Westboro Baptists weren’t trespassing, kept the right distance, weren’t violently disruptive, and followed police instructions, they had every right to spew their hateful bile. If there was any possible dissent here, I would have expected it from Sotomayor, since hard leftists like her often imagine that hate speech shouldn’t be protected by the First Amendment. But even she got this right. It was the conservative Christian, Samuel Alito, who went to bat for the gay man’s family: the picketers, he wrote, were not really engaging in free speech, but assault (!): their homophobia had “brutally attacked” the dead marine and his family. This opinion alone disqualifies Alito as a Supreme Court justice, as far as I’m concerned.

2. Janus v. American Federation of State, County, and Municipal Employees (2018)

The issue at stake: Union agency fees
The ruling (5-4): The extraction of agency fees from non-consenting public-sector employees violates the First Amendment
Alito’s opinion: For the majority

For my #2 slot I choose another (supposed) First Amendment case that actually has nothing to do with free speech. Alito wrote for the majority, ruling that the extraction of agency fees from non-consenting public-sector employees violates the First Amendment. Which it most certainly does not. The First Amendment wasn’t meant to undermine but to protect democratic governance. No matter how much I may disagree with the politics of my union, paying my dues in no way violates my free expression. It keeps me from being a freeloader and reaping union benefits that others pay for. The supposed violation of the First Amendment is absurd on every level. The landmark Supreme Court ruling, Abood v. Detroit Board of Education (1977) — which this case overturned — explicitly prohibited agency fees from being used to pay for political activity; the fees could only pay for collective bargaining and other apolitical services the union provides. Janus was one of the worst Supreme Court rulings of the 21st century, and it shows Alito defending the First Amendment where it has no relevance, just as he tramples on that amendment where it is relevant (see #1 above and #5 below).

3. Trump v. Vance (2020)

The issue at stake: Presidential exemption from state subpoenas
The ruling (7-2): State criminal subpoenas issued to a sitting president are not automatically blocked
Alito’s opinion: For the dissent

Alito was just kissing Trump’s ass in this case. Chief Justice Roberts wrote for the majority, arguing that the Supreme Court has always held that the president is subject to subpoena in federal criminal proceedings. There is no reason to treat state proceedings any different. The majority rejected Trump’s argument that state criminal subpoenas pose a “unique and greater threat to impair the executive’s ability to perform its constitutionally mandated functions”. Alito believed the president deserves greater protection from state law enforcement powers but offered no substantive argument.

4. Burwell v. Hobby Lobby Stores (2014)

The issue at stake: Contraception health coverage
The ruling (5-4): The Religious Freedom Restoration Act of 1993 allows a for-profit company to deny its employees health coverage of contraception based on the religious objections of the company’s owners
Alito’s opinion: For the majority

Here Alito ruled that companies are free to deny their employees health coverage of contraception if the company’s owner has religious objections to birth control. But there is no violation of freedom of religion when an infringement on that right is merely an incidental consequence of an otherwise valid statute. The landmark case of Employment Division, Department of Human Resources of Oregon v. Smith (1990) made this plain, in which Antonin Scalia had written for the majority, noting that to allow exceptions to every regulation that affected religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind” — compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws. It’s revealing that this 1990 case was upheld by a conservative majority (6-3), against the liberals who went to bat for religious objectors — Native Americans who wanted to use illegal drugs for religious purposes. Now, in Burwell v. Hobby Lobby Stores, it was the conservative majority going to bat for religious objectors — company owners who want to deny birth control in a legal health coverage plan. Whether liberal or conservative, religious objections like this are unfounded. There is plenty of judicial precedent holding that religious beliefs or observances must not impinge on the rights of third parties, and rightly so.

5. United States v. Stevens (2010)

The issue at stake: Free speech
The ruling (8-1): A federal statute that criminalized the commercial production, sale, or possession of depictions of cruelty to animals violates the First Amendment
Alito’s opinion: The lone dissent

A year before Snyder v. Phelps (see #1 above), Alito was already pulling “exceptions” to free speech out of his ass, and (as in Snyder) standing alone against a landslide majority of 8 justices. The case involved a federal statute that criminalized the commercial production, sale, or possession of depictions of cruelty to animals. The majority (four liberals, four conservatives) ruled that the statute was a violation of free speech, pure and simple and they were obviously right, not only on the general principle of free speech but sheer practicality: TV-shows portraying the hunting of animals would have to logically be criminalized according to the federal statute. Alito ignored the question of legal expression (which is what matters) and focused instead on the repulsive nature of that expression, as he personally found it. Seriously.

6. Doe v. Groody (2004)

The issue at stake: Strip-searching a mother and her 10-year old daughter without a warrant
The ruling: The search was unconstitutional
Alito’s opinion: The lone dissent

Alito was on the Circuit Court of Appeals for this case. His opinion earned him the nickname “Strip-Search Sammy”, and made his appointment by Bush to the Supreme Court in 2006 controversial. In his lone dissent he approved the body search of an innocent ten-year-old girl and her mother, saying that police officers did not violate the Constitution without a warrant that gave them permission to do this. Judge Michael Chertoff’s majority opinion correctly stated that Alito’s position would effectively nullify the Fourth Amendment’s warrant requirement and “transform the judicial officer into little more than the cliché rubber stamp”. A truly horrible dissent on Alito’s part.

7. Gundy v. United States (2019)

The issue at stake: Separation of powers
The ruling (5-4): The Sex Offender Registration and Notification Act’s delegation of authority to the Attorney General does not violate the separation of powers
Alito’s opinion: Concurrence

Unlike every other conservative on the Supreme Court, Alito has never joined an opinion with all of the liberals as a lone conservative. Except in this case… when he and the liberals were dead wrong. Alito concurred with the liberals, agreeing that the attorney general can write his own criminal code. In other words, the chief prosecutor can write the laws for crimes that he gets to prosecute, which is insane. (Gorsuch’s dissent to this ruling was spot-on.)

8. Dobbs v. Jackson Women’s Health Organization (2022)

The issue at stake: Abortion rights
The ruling (5-4): The Constitution does not confer the right to an abortion; the issue must be settled by each state
Alito’s opinion: For the majority

I decided to include this one, as it’s the opinion for which Alito will forever be famous, and for which he is either reviled or praised. And herein lies the problem. Whether you consider Dobbs to yield a good or terrible outcome rides on the question of who has the right to “life, liberty, and the pursuit of happiness”. Women faced with unwanted pregnancies, or the unborn? Pro-choice and antiabortionists each claim a high ground based on premises the other side isn’t willing to grant. And whether you consider Dobbs to be a good or bad judicial ruling rides on the question of how you weigh precedent with respect to textualism. For the first question, I give moral priority to women over the unborn that they carry. For the second, I believe judicial precedents are subordinate to the Constitution itself, and it’s admittedly not easy (though not impossible) to make a Constitutional case for abortion rights. Abortion debates will always involve uphill battles and talking past each other. If I say that I include Dobbs on this list because it represents the first time that the Supreme Court has taken away a long-entrenched (49-year) fundamental right, the antiabortionist will simply counter no, the Supreme Court has allowed states, if they choose, to restore fundamental rights to the unborn. So there you have it.

The Best Opinions of Neil Gorsuch

Readers of this blog know that I enjoy reading SCOTUS opinions and in this post I rank the best opinions of my favorite justice on the court, Neil Gorsuch.

What I have selected as Gorsuch’s best (eight of them) illuminate how originalism looks when consistently applied. They cover a lot of ground: the Constitutional rights of private business owners, Native Americans, criminals, gay and transgendered people, cell-phone users, kids who grossly act out in school, immigrants, and Americans with commonwealth status. They show how textual meaning matters and that process is as important (if not more so) than outcome in judicial rulings. As dissents they can be frustrating as they are entertaining; as concurrences they turn in surprising directions. Gorsuch writes with a razor, and I enjoy his opinions especially when he is in the minority scolding his colleagues.

1. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)

The issue at stake: Free expression
The ruling (7-2): A Colorado baker has the right to refuse designing wedding cakes that celebrate gay marriage
Gorsuch’s opinion: Concurrence

For Gorsuch’s best opinion, I choose not one of his prestigious majority rulings, nor one of his razor-sharp dissents, but a concurrence which should have been the majority opinion. It’s the well known case of the Colorado baker who refused to design a wedding cake celebrating gay marriage. Led by justice Kennedy, the majority (7-2) upheld the right of a private business owner (Jack Philipps) to refuse to design one of his products (a cake) in a particular way (that celebrates gay marriage). But the majority ruled on the narrowest grounds imaginable — that the Colorado Civil Rights Commission during its consideration of the case had shown an anti-religious bias, and in speaking contemptuously of religion violated the Phillips’ rights to free expression. So they reversed the Commission’s decision in favor of the baker on this technicality, emphasizing that this case should not provide future guidance for courts that will face similar issues.

In his concurrence Gorsuch did better than that, taking the case on its merits and arguing that Philipps was justified period in refusing designs for cakes — regardless of the Colorado Civil Rights Commission’s attitude towards him. The Commission had not only showed religious hostility; it had failed to recognize the more substantive point, that private business owners cannot be compelled to create a product that they object to on religious or moral grounds. Stunningly, the Commission had already acknowledged this very principle in its own treatment of three bakers who refused to bake cakes with anti-gay messages on them. The Commission, said Gorsuch, should have found in the Philipps’ favor, just as it had found in favor for the other three bakers. All four bakers were in the same situation. The three bakers refused to sell a cake that denigrated same-sex marriage, just as Jack Philipps refused to sell a cake celebrating same-sex marriage. Most crucially: The atheist bakers in the first case were happy to sell to persons of Christian faith, just as the conservative Christian baker in the second case was happy to sell to gay people. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers. Gorsuch’s reasoning was absolutely correct. Business owners cannot be compelled to artistic design, only to provide equal access to their products. Whatever they do create, they must sell impartially and without discrimination. But they aren’t obligated to create something in the first place that goes against their religious or moral convictions.

Gorsuch’s concurrence should have been expanded on and embraced as the majority opinion. Instead we got an egregious cop-out. In Kennedy’s ruling, “the outcome of cases like this in other circumstances must await further elaboration in the courts”. Clearly most of the justices didn’t want to get their hands dirty for fear of being perceived as bigoted homphobes. But there is no conflict here between free speech and civil rights. As a bisexual it wouldn’t faze me in the least if a baker told me he didn’t make cakes celebrating same-sex unions. His business, his house, his rules — and for me, a mere inconvenience like going into any other business and being told they don’t carry what I need. Now, if I grabbed one of the baker’s products off the shelf and tried to buy it but was refused service because I’m bisexual, then obviously that would offend me; and indeed that would be a violation of discrimination laws. But no one has the right to expect business owners to design products they refuse to carry. The woke sense of entitlement is truly astonishing. I’ll say it again: business owners should not be compelled to artistic design, only to provide equal access to their products. That’s what Gorsuch was saying in his concurrence, and that’s what should have been the unambiguous ruling in Masterpiece Cakeshop.

2. McGirt v. Oklahoma (2020) and Oklahoma v. Castro-Huerta (2022)

The issue at stake: Native American sovereignty in the tribal courts
The rulings (5-4; 5-4): The federal government and tribal courts (not the states) have exclusive jurisdiction to prosecute crimes committed by Natives on Indian reservations (2020). On the other hand, the federal government and state governments (not the tribal courts) have jurisdiction to prosecute crimes committed by non-Natives on Indian reservations (2022).
Gorsuch’s opinion: For the majority in 2020, and for the dissent in 2022

It’s become clear to me that conservative justices have either a poor understanding of Native treaties or are simply contemptuous of them. Except for Neil Gorsuch. He has joined the liberal justices four times against the other conservatives in ruling in favor of the tribes — not because he’s a bleeding heart, but because he’s following proper conservative jurisprudence, and holding the government to its vows. Of the four cases, I choose these two, jointly, for the #2 slot. They argue essentially the same thing.

In McGirt v. Oklahoma, Gorsuch ruled that prosecution of crimes by Native Americans on Indian reservations is under the jurisdiction of the tribal courts and federal judiciary, not the state courts. He stated categorically: “We are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.” He was joined by the four liberals at the time (Kagan, Ginsburg, Breyer, Sotomayor) for a 5-4 ruling. McGirt, however, left open the question about crimes committed by non-Natives on Indian Reservations. The issue was decided this year in Oklahoma v. Castro-Huerta, and it should have gone the same way, but with Ginsburg replaced by Barrett it ended up being a conservative majority that ruled 5-4 against tribal jurisdiction. Gorsuch wrote a furious dissent, joined by the three remaining liberals: “Where this Court once stood firm, today it wilts. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another.” It’s the proper dissent — and to stress the point, a conservative one — which appeals to the landmark ruling of Worcester v. Georgia (1823), which has persisted for over 200 years, stating clearly that native tribes retain their sovereignty unless and until Congress ordains otherwise. If people don’t like tribal sovereignty, that’s for Congress alone to change, not the Supreme Court — which in this case, under Kavanagh’s majority ruling, was legislating from the bench.

3. Gundy v. United States (2019)

The issue at stake: Separation of powers
The ruling (5-4): The Sex Offender Registration and Notification Act’s delegation of authority to the Attorney General does not violate the separation of powers
Gorsuch’s opinion: For the dissent

Separation of powers is an important issue, but Americans have become increasingly indifferent to it. Today’s generation prefers immediate and favorable results, and to hell with the wider and long-term consequences. Whether it’s the judicial branch trying to legislate, the executive branch trying to legislate, or either of the elected branches trying to be judges, the threats to the rule of law, liberty, fair notice, democratic self-rule, and equal protection under the law remain the same.

The case of Gundy involves the executive branch assuming a legislative role, in what I take to be a stunning scenario: the nation’s chief prosecutor, the Attorney General, is able to write the laws for crimes he gets to punish. The Sex Offender Registration and Notification Act (SORNA) delegates that authority to him. Here the attorney general declared that a pre-SORNA sex offender was required to register under SORNA and then prosecuted him for having failed to register. This placed the power to make a law and the power to enforce it in the same hands — an egregious violation of the separation of powers. Alito and the four liberal justices ruled 5-4 that this was perfectly fine, but they were dead wrong. Gorsuch wrote for the dissent, saying:

“It would be easy enough to let this case go. After all, sex offenders are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else.”

Indeed. It’s crazy to allow the chief prosecutor to write his own criminal code. It invests him with far too much power over half a million people. Alito is always out to lunch, so I expect insanity from him, but the liberals had their collective heads up their asses in Gundy. This ruling may not be particularly well known, but I rank it as Gorsuch’s third best and most important opinion.

4. Bostock v. Clayton County (2020)

The issue at stake: Gay and transgender rights
The ruling (6-3): An employer who fires an employee for being gay or transgender violates Title VII of the Civil Rights Act of 1964
Gorsuch’s opinion: For the majority

Gorsuch wrote for the majority (6-3) — himself, Roberts, and the four liberals — arguing that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin”. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex — the very practice that Title VII prohibits. This is one of the most conservative rulings ever handed down by the Supreme Court, though people see it as a liberal one. It’s friendly to liberal politics, but it’s conservative law. It’s what Scalia’s originalist doctrine looks like when properly and consistently applied (though I doubt Scalia would have followed his own doctrine in this case).

Gorsuch’s argument is as bullet-proof as it is straightforward. Discrimination on the basis of one’s sexual orientation or transgender status is by definition sex discrimination, because in both types of discrimination, an employer must consider the employee’s sex — in other words, the employee’s biological marker of being a man or a woman — before the employer can identify the employee as homosexual (one who is sexually attracted to someone of the same sex) or transgender (one who is identifying with the other sex). Without the employer’s consideration of the employee’s sex, it would be impossible for that employer to discriminate against the employee on the basis of sexual orientation or transgender status. “Sexual orientation” and “transgender” cannot be defined, let alone understood, without explicit reference to sex.

The dissenting justices (Kavanagh, Thomas, Alito) crawled uphill with lame rebuttals, protesting that Congress didn’t put “homosexuality” or “transgendered” in the Act, and that Congress didn’t mean “gay” or “trans”, when writing the Act. But that’s wholly irrelevant. Gorsuch rubs the conservative noses in Scalia’s conservative originalist doctrine: “Discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second”, so it doesn’t matter that they aren’t explicitly named in the Act, or that they weren’t intended at the time of writing — anymore than it matters that interracial marriage wasn’t intended to be protected by the Equal Protection Clause when written in 1868.

Bostock is a solid example of value-free orignalism and gives lie to the myth that orignalism yields outcomes mostly favorable to conservative politics. For that reason I rank it at #4.

5. Carpenter v. United States (2018)

The issue at stake: Searching cell phone data without warrants
The ruling (5-4): Acquisition of cell-site records without a warrant violates the Fourth Amendment
Gorsuch’s opinion: A dissent and concurrence

This is sort of the inverse to the Masterpiece Cake case, where instead of concurring with the majority and scolding them at the same time, Gorsuch now dissents from the majority while agreeing with what drove them to rule the way they did. The case involved the government charging Timothy Carpenter for aiding and abetting robbery, on the basis of his cell-site evidence. Carpenter moved to suppress the government’s cell-site evidence on Fourth Amendment grounds, arguing that the FBI needed a warrant based on probable cause to obtain the records. The lower courts denied his motion to suppress, but the Supreme Court found in his favor, ruling that the Fourth Amendment protects not only property interests, but also reasonable expectations of privacy.

Gorsuch affirmed the former but denied the latter in his dissent. The framers, he insisted, didn’t protect privacy based on “reasonable expectations” in some ethereal way dependent on judicial intentions. They protected privacy in particular places and things — persons, houses, papers, and effects — and against particular threats — unreasonable governmental searches and seizures. The problem is that two Supreme Court rulings from the 70s — Smith v. Maryland and United States v. Miller — argued on the basis of “reasonable expectations of privacy”, and concluded that Fourth Amendment claims don’t apply to information shared with third-parties. Once you disclose information to third parties — like your bank, accountant, or doctor — you forfeit any reasonable expectation of privacy you might have had in it, and the government had a lawful right to obtain it by compulsory process. This of course is horribly wrong, as Gorsuch acknowledged with the majority (Roberts, Kagan, Ginsburg, Breyer, Sotomayor). His fellow conservative dissenters (Kennedy, Thomas, Alito) did not acknowledge this, and they concluded that cell-site records are no different from the many other kinds of business records that the government can obtain without warrants.

But that’s a terrible dissent, for as Gorsuch says (again, in agreement with the majority), people in fact do generally expect that information they entrust to third parties will remain private and confidential. But the remedy for this isn’t to appeal to some vague illegitimate idea about “reasonable expectations”, as the majority did. Rather than assert a Fourth Amendment claim based on a particular judge’s sensibilities about the “reasonableness” of our expectations to privacy, one must assert a Fourth Amendment claim based on cell-site data qualifying as personal property under existing law. And such a law does exist. Telephone carriers hold the information, but there is a statute that designates a customer’s cell-site location information as “customer proprietary network information” (CPNI) and gives customers rights to control the use of and access to CPNI about themselves. The statute generally forbids a carrier to use, disclose, or permit access to individuals indentifiable CPNI without the customer’s consent (except as needed to to provide the customer’s telecommunication services). Congress even afforded customers a private cause of action for damages against carriers who violate the Act’s terms. So customers have legal interests in this information, and those interests may well rise to the level of property right — which is legitimately protected by the Fourth Amendment. But in Carpenter, the plaintiff pursued a “reasonable expectations” argument, not a property rights argument, forfeiting, in Gorsuch’s view, a legitimate claim.

Gorsuch’s dissent in Carpenter is about reaching the goal by the safe path. The majority had the right idea, but they were trying to fix a problem without killing the monster that made it possible. Gorsuch writes:

“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, and the third-party doctrine ruled unconstitutional for everything — bank records, medical records, email servers — not just cell phones. Gorsuch’s shrewd criticism of both the majority and the dissent earns its place at #5.

6. A.M. v. Holmes (2016)

The issue at stake: Arresting kids for childish pranks
The ruling: The arrest of a 13-year old boy for repeatedly belching in school is lawful
Gorsuch’s opinion: For the dissent

This case is from Gorsuch’s last term on the Tenth Circuit (in Denver), a year before he joined the Supreme Court, and I include it on this list because it’s such a great dissent against a majority of idiots who seem not to have the common sense God gave geese. A middle school boy in Albuquerque, New Mexico was arrested for repeatedly belching on purpose during his gym class. The boy created a class distraction and was banished to the hallway, and he poked his head back into the classroom to belch again. At this point you might think that banishment to the principal’s office and a school detention would have been reasonable, but instead, the school had the boy arrested, put in handcuffs, and thrown into juvenile detention.

The boy’s mother was furious and sued the school officials and arresting officer, and rightly so, but lost her case. The judges on the Tenth Circuit took 94 pages to explain why arresting the boy was lawful, as the boy had violated a New Mexico statute which made it a crime to “willfully interfere with the educational process of any public or private school”. Gorsuch took only 4 pages to dissent, explaining that judicial precedent made the arrest of the boy unlawful. He pointed out that the New Mexico Court of Appeals long ago ruled that the statutory language on which the officer relied for the arrest in this case does not criminalize noises or diversions that merely disturb the peace or good order of individual classes. It criminalizes severe actions, like physical invasions of the school’s operations. Simply put, said Gorsuch, childish pranks do not justify the arrest of a child.

You don’t say. Gorsuch was the lone dissenter in this case, defending a 13-year old who was carted away in handcuffs because he couldn’t stop being gross. I belched all the time in my youth; I’m glad I wasn’t raised in New Mexico. This is an obscure ruling, and not even SCOTUS, but I love it so much — because I can’t believe Gorsuch had to counter such idiocy — that I place it at #6.

7. Niz-Chavez v. Garland (2021).

The issue at stake: Deportation
The ruling (6-3): Deportation hearing notices must be presented in a single document
Gorsuch’s opinion: For the majority

This is a technical case in which everything hinged on the word “a” in a statute, and got attention for that reason alone, but also because it saw three conservatives (Gorsuch, Thomas, and Barrett) joining hands with the three liberals (Kagan, Breyer, and Sotomayor). The other three conservatives who dissented (Kavanagh, Alito, and Roberts) were nonplussed to say the least.

The case involved Agusto Niz-Chavez, an unauthorized immigrant from Guatemala, who had been reported to the government for driving infractions. He received documents to appear at a deportation hearing in two separate installments. The first didn’t state where or when he needed to attend the hearing, though the second (received two months later) did. Niz-Chavez made an appearance at the hearing, where he stated his intent to seek withholding of removal under the Immigration and Nationality Act (INA) and relief under the Convention Against Torture. The immigration judge denied both applications, and Niz-Chaves appealed to the Board of Immigration Appeals. In addition to challenging the immigration judge’s conclusions, Niz-Chavez asked the Board to remand the case since his first notice to appear didn’t include the specific time and place of his removal proceedings, and thus didn’t trigger the stop-time rule under the INA. (The stop-time rule means that the clock stops ticking once you receive a Notice to Appear. That date becomes the end date of the immigrant’s continuous residency.) Niz-Chavez argued that he was now eligible for cancellation because of the deficiency of the notice he received. His appeals were rejected the Board and lower courts, and the case went to the Supreme Court.

The question for SCOTUS to settle was simply this: Must the government serve a specific document that includes all required information for a deportation hearing, or may the government serve that information over the course of multiple documents? Gorsuch’s answer was that the government must serve a single document with all the required information in order to trigger the stop-time rule.

“To trigger the stop-time rule, the government must serve a notice containing all the information Congress has specified. To an ordinary reader, a notice would seem to suggest just that: a single document containing the required information, not a mishmash of pieces with some assembly required. Someone who agrees to buy “a car” would hardly expect to receive the chassis today, wheels next week, and an engine to follow… At one level, the dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”

More than fair enough, I say.

Interesting post-script to this case: Legal experts saw parallels between this case and Bostock v. Clayton County (#4 above). In both Gorsuch wrote for a majority of liberals (Kagan, Breyer, Sotomayor) and/or libertarians (himself, and Thomas and Barrett in this case; Roberts in the other case), against conservative ideologues (Kavanagh and Alito especially). In particular, Gorsuch and Kavanagh were seriously at odds with each other in each case, even though both are Trump appointees; both were former law clerks to Anthony Kennedy; and both were attendees of Georgetown Preparatory School. Yet Gorsuch and Kavanagh are as opposite as night and day in terms of jurisprudence.

8. United States v. Vaello Madero (2022)

The issue at stake: The Insular Cases (American colonialism)
The ruling (8-1): The Constitution does not require Congress to make Supplemental Security Income benefits available to the residents of Puerto Rico
Gorsuch’s opinion: Resentful concurrence

I love this one. The case involved Jose Luis Vaello-Madero, who was born in Puerto Rico in the 50s and moved to New York in the 80s. In 2012, he started receiving SSI payments with the onset of health problems, and in 2013 he moved back to Puerto Rico to help care for his wife. In 2016, the Social Security Administration (SSA) informed Vaello-Madero that because he had moved back to Puerto Rico, it was terminating his SSI benefits — and not only that, to add insult to injury, seeking to recover $28,000 in benefits it had paid Vaello-Madero between 2013 and 2016 when he was living in Puerto Rico.

Congress had established the Supplemental Security Income program to provide cash benefits to low-income elderly people with disabilities, and that program extends to residents of the 50 states, the District of Columbia, and the unincorporated territory of the Northern Mariana Islands — but for whatever reason, not to those living in Puerto Rico. The question for the Supreme Court is whether Congress violated the Fifth Amendment by establishing the program everywhere except Puerto Rico?

The ruling was pretty straightforward. The Constitution doesn’t require Congress to make benefits available to anyone in its unincorporated territories. Sotomayor dissented anyway, with no legal basis for her dissent. Instead of dissenting, Gorsuch concurred with the majority while delivering one mighty pissed-off screed. He concurred only because no one was asking the Court to overturn the Insular Cases — the series of Supreme Court rulings from the early 20th century that held that the federal government could rule Puerto Rico and other territories without regard to the Constitution. Gorsuch called for a case that would ask SCOTUS to do exactly that — to overturn the racist and colonial rulings. His screed is worth citing at length:

“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law. The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of ‘incorporated’ and ‘unincorporated’ Territories. Nothing in it extends to the latter only certain supposedly ‘fundamental’ constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion. The Insular Cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding. The Insular Cases’ departure from the Constitution’s original meaning has never been much of a secret. Even commentators at the time understood that the notion of territorial incorporation was a thoroughly modern invention. Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them. We should settle this question right. Our fellow Americans in Puerto Rico deserve no less.”

Hopefully the Insular Cases will be overturned someday.

 

Not perfect, by any means…

I certainly don’t agree with Gorsuch all the time. (Anyone who agrees with any justice “all the time” probably isn’t much of an independent thinker.) Gorsuch has shown some some blind spots in three particular areas: separation of church and state, labor law, and voting rights. He’s too liberal in defending the rights of religious expression for government employees. Private cake-bakers, yes, absolutely, but public-school football coaches praying at midfield isn’t appropriate, despite what he wrote for the majority in Kennedy v. Bremerton School District (2022) (in my view the worst opinion he has ever written). His perspective on unions leaves much to be desired. While he didn’t write the opinion or any concurrence for Janus v. American Federation of State, County, and Municipal Employees (2018), he did join that horrible ruling which now prevents people, acting through their state and local officials, from making important choices about workplace governance — and on top of that encourages freeloading non-union members who reap the same benefits as dues-payers. Then there was Rucho v. Common Cause (2019), to which he contributed nothing, but joined the opinion just the same; thanks to that ruling (which claimed the Court lacked jurisdiction and left matters for the states and Congress to decide), partisan gerrymanders are able to deprive citizens of a most fundamental constitutional right: to participate equally in the political process and choose their political representatives. Still, I do I agree with Gorsuch’s opinions more than those of any other justice, and I consider him a model of impeccable judicial integrity.

A Republic, If You Can Keep It

Ben Franklin’s quip in 1787 was a warning. Democratic republics usually devolve into mob rule or become oligarchies, or even dictatorships, and one of the Constitution’s best safeguards against those trends is the separations of powers — our system of checks and balances that fewer people these days seem to think important. Lawmakers are our moralists and ethicists; they stand for the people who elect them and advocate accordingly. Executives are the police, enforcing what our lawmakers decide. And judges are our amoral adjudicators; they interpret laws, neutrally and impartially, to be sure “the laws are legit”; that they don’t conflict with the Constitution; and they do this even when — especially when — the outcome is personally unfavorable to the judge. Without those divisions a republic’s days are numbered. History teaches hard lessons in this regard.

Franklin’s quote is a suitable title for Neil Gorsuch’s book, which came out three years ago. You’d think I would have cracked it sooner. Gorsuch is my favorite justice on the Supreme Court, but for whatever reason, I assumed this book would be like most books by SCOTUS justices — memoirs and autobiographical anecdotes about the justice’s personal life, for which I’ve little interest. Turns out there’s very little of that. Most of A Republic, If You Can Keep It is about exactly what I want: the author’s jurisprudence and his views of the proper role of judges under the Constitution. It covers a lot of ground, drawing on many court cases as examples. I’ll go through some of the highlights and examples that I found particularly interesting.

Separated Powers

No matter how you blur the separation of powers, says Gorsuch, it ends up bad. When the judicial branch decides what the law should be, the people are excluded from the lawmaking process, replaced by a handful of judges who don’t have a constituency. When the executive branch makes new laws, a slow process that’s supposed to reflect and benefit from the views of the people is left to a single actor. And when either of the elected branches assume the judicial function, instead of a neutral judge and a jury of their peers, the people are left with politicized decision makers who will be tempted to pick winners and losers based their current popularity more than merit — whatever happens to be in fashion. “However you mix what are supposed to be separated powers, the threats to the rule of law and liberty are much the same. At risk are the promise of knowable and stable law, fair notice, democratic self-rule, and equal protection under the law.” (p 45) Americans have become increasingly blind to these dangers; they prefer immediate and favorable results, long-term consequences be damned.

The role of the judiciary is probably the most important of all, being an unelected branch charged with the highest honor or being impartial and above personal agendas. Says Gorsuch:

“Legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. Judges should do none of these things in a democratic society, instead striving to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history — not to their own moral convictions or the policy consequences they believe might serve society best. If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” (p 48)

Gorsuch draws on cases to show how these threats manifest. I’ll cover two.

(1) Gutierrez-Brizuela v. Lynch (2016) shows the dangers of mixing of executive and judicial powers. Gorsuch was on the Tenth Circuit for this case, and it involved two conflicting provisions of U.S. immigration law. The first law implies that certain people who have illegally reentered the United States can gain lawful residency at any time, provided that the Attorney General grants them adjusted status. But the second states that these same people can’t gain lawful residency unless they first leave the country and wait ten years. The government said (a) that Gutierrez-Brizuela should lose and (b) that the court had to defer to its own understanding of how the two statutes should be reconciled, rather than the court’s understanding — which was allowing an executive agency to assume the role of the judiciary.

With regards to (a), Gorsuch ruled that the balance tipped decidedly toward the petitioner: Gutierrez-Brizuela had relied on judicial precedent, and it would be unfair to upset his expectations now and to create substantial uncertainty for people in similar positions. But Gorsuch also wrote a separate concurrence to address point (b) — the real elephant in the room — arguing that an executive agency should never assume the role of the courts. Specifically Gorsuch argued that the Supreme Court ruling Chevron v. Natural Resources Defense Council (1984) needs to be overturned. That ruling has become known as the “Chevron defense” and for 38 years now it has allowed executive agencies to use legislative power to perform a quasi-judicial function. It’s an ongoing bone of contention, and with Gorsuch I believe incompatible with the constitutional division of powers:

Chevron tells us that we must allow an executive agency to resolve the meaning of any ambiguous statutory provision. In this way, Chevron seems no less than a judge-made doctrine of the abdication of the judicial duty. Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.” (p 78)

Thus do people like Gutierrez-Brizuela end up getting shafted without fair process. Chevron is so open-ended that it allows agencies to reverse their current views 180 degrees anytime based merely on the shift of political winds — and without deigning to announce their views in advance. Chevron also says that we should infer from any statutory ambiguity Congress’s intent to “delegate” its “legislative authority” to the executive to make “reasonable” policy choices. But this is horseshit; Congress has never expressed this intent. An executive agency has no power to act unless and until Congress confers power on it; Chevron stands Constitutional rule on its head.

(2) Unites States v. Nichols (2016) & Gundy v. United States (2019) shows the dangers of the executive assuming the legislative function — in a stunning scenario in which the nation’s chief prosecutor is able to write the laws for crimes he gets to punish. In these two Supreme Court cases, the question was, could the attorney general both declare that a pre-SORNA sex offender was required to register under SORNA (Sex Offender Registration and Notification Act) and then prosecute him for having failed to register? This placed the power to make a law and the power to enforce it in the same hands — an egregious violation of the separation of powers. Samuel Alito and the four liberal justices ruled (5-3) yes, that this was fine, but they were dead wrong. Gorsuch wrote the dissent, rightly arguing:

“It would be easy enough to let this case go. After all, sex offenders are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else.”

Indeed. It’s insane to allow the chief prosecutor of the United States to write his own criminal code. It invests him with far too much power over half a million people. Alito is always out to lunch, so I expect insanity from him, but the liberals had their collective heads up their asses in Gundy.

Originalism and Textualism

From an early point in his career, Gorsuch realized the importance of originalism:

“I began to see the importance of interpreting written laws as originally understood. I saw what happens to ordinary people in real cases, to the rule of law, and to the role of the judge when courts abandon that task in favor of ‘evolving’ the law in ways they think preferable. My concerns only grew as I became a lawyer and, later, a judge. I saw people sent to jail or fined for conduct the written law did not proscribe. I saw contracts rewritten based on little more than a judicial policy preference. I came to realize that when judges abandon the original meaning of a law to pursue some other goal they find worthy, they risk exercising political will rather than legal judgment. And, in the process, they threaten the legitimacy of the judicial enterprise and the right of the people to fair notice under the law’s demands.” (p 106)

There are many judiciary examples of the road to hell being paved with good intentions. One of them is Ohio v. Roberts (1980). Gorsuch explains that the Sixth Amendment’s Confrontation Clause gives defendants the right to confront witnesses and cross-examine their testimony, but in this 1980 ruling the SCOTUS justices said that the purpose of the Confrontation Clause was simply to restrict the admission of unreliable hearsay into evidence, and that judges could dispense with it if they found the testimony “reliable”. But what does that even mean? Under this ruling, identical cases were often treated differently. Some judges found detailed statements reliable; others were fine with the briefest statements. Some judges thought because the witness was in custody, it made his testimony reliable; others thought because he wasn’t in custody it was reliable. Some judges thought testimony given right after the events was reliable; others said that the passage of time made it reliable.

This terrible standard — for all the good intentions that drove it — went on for 24 years, until SCOTUS overturned Ohio v. Roberts. The case was Crawford v. Washington (2004), in which the court ruled that the Confrontation Clause gives defendants the absolute and unconditional right to confront witnesses and cross-examine their testimony. “A defendant’s right to confrontation today can mean no less than it did at the nation’s founding. It is not for judges to decide how to balance the competing interests of efficient law enforcement on the one hand, and accurate criminal convictions on the other.” (p 110) This of course is the doctrine of originalism, which is often caricatured.

Originalism properly understood

First things first: it’s not just conservatives who are originalists. It’s true that conservatives got us back on track with orignalism in the ’80s, led by Antonin Scalia, but it’s no longer so partisan. The queen of liberals, Ruth Ginsburg, counted herself an originalist, and Elena Kagan — currently the best justice on the court after Gorsuch — said in 2015 basically that all justices who count for anything are originalists and textualists, thanks precisely to Scalia. Says Gorsuch:

“Elena Kagan acknowledged in her Scalia Lecture at Harvard Law School in 2015, ‘we’re all textualists now’. Capturing the spirit of the law school back when she and I attended, Justice Kagan went on to relate how professors and students often used to approach reading a statute with the question, ‘Gosh, what should this statute be?’, rather than ‘What do the words in the statute say?’ That much has changed, and as Justice Kagan said, ‘Justice Scalia had more to do with this change than anybody’ because he ‘taught everyone to do statutory interpretation differently’.” (p 48)

The best liberals, in other words, acknowledge their debt to Scalia’s originalist jurisprudence. So should we all. And when misguided liberals complain that originalism throws us back on an antiquated world that’s doesn’t fit with the 21st century, they’re spitballing. Originalism means that original meaning is fixed; obviously new applications of that meaning will arise with new developments and new technologies (p 111). Nor does originalism imply a disdain for precedent. It’s just a matter of getting the right precedent (as any judge would agree); there are good precedents and bad ones. Nor does originalism lead necessarily to results that are politically conservative. Gorsuch blasts that myth with ease:

“Originalism is a theory focused on process, not on substance. It is not ‘Conservative’ with a a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences. Whether that means allowing protestors to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries — not judges — should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment). In my own judicial career, I’ve written many originalist rulings with so-called ‘liberal’ results.” (p 115)

He’s not kidding about that last. Many times Gorsuch has joined the liberal justices — to rule in favor of Native American Indians, the transgendered, and immigrants. As I often say, a conservative judiciary approach can be just as friendly to liberal politics as to conservative politics, because it is appropriately blind to politics. Without that, you don’t have a system of checks and balances anymore. You just have a politicized court doing as they please.

On Precedent

According to Gorsuch, “laypeople — and for that matter, more than a few lawyers and judges — have more misunderstandings about the nature and role of precedents than about any other aspect of legal reasoning.”

“Judges often say that they construe or interpret a statute, which means they try to determine the meaning of its language. By contrast, judges and lawyers often say that they analyze a judicial precedent. Although analyzing an opinion involves delving into the judge’s words, you must go beyond the judge’s words. You must also understand the opinion’s legal background, the facts of the case, and the relationship between those facts and the outcome. In other words, with case law [involving precedent] you can’t just interpret its language; you must also engage in legal reasoning to find what we call the case’s holding — the rule or principle necessary to justify or explain the outcome. When lawyers and judges analyze a precedent, they’re usually trying to find out what the holding is. They’re also trying to gauge how broadly or narrowly the holding sweeps — that is, how it will apply to future cases that present a similar issue but with different facts.” (p 212)

It is, to put it mildly, not an exact science, and it can enshrine bad decisions for a long time, but also good ones. I’ll cover three of the many examples Gorsuch uses — cases involving professional baseball, endangered species, and kids who belch in class.

Baseball

Does major league baseball engage in interstate commerce so that it must obey federal antitrust laws, like other businesses that operate across state lines? We might think obviously yes, since professional baseball is a form of commerce, and certainly an interstate one. But exactly one century ago, in Federal Baseball Club v. National League (1922), the Supreme Court ruled that the Sherman Antitrust Act did not apply to Major League Baseball. That’s why Major League Baseball hasn’t faced any competitor leagues since 1922, and to date remains the only baseball league with an antitrust exemption. The Supreme Court’s reasoning was that “giving exhibitions of baseball doesn’t involve interstate commerce” — which is shifty to say the least.

“Taking” wildlife

When a farmer plows a field and unintentionally disturbs birds that have settled there, is he safe from the charge of “taking” wildlife? We might again think obviously yes, since harming or taking wildlife intuitively has to do with actions aimed at killing or capturing. As a circuit court judge put it: “If I were intent on ‘taking’ a rabbit, a squirrel, or a deer, I would go forth with my dogs or my guns or my snares and proceed to harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect one of the target species.” But in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995), the Supreme Court ruled that the words “harm” and “take” in the Endangered Species Act can apply to habitat modification or degradation. Speaking as a conscious environmentalist, I’m a bit on the fence with this precedent. I personally approve extending the idea of harming wildlife as applying to that which interferes with the breeding, feeding, or sheltering habits of endangered species. But I disapprove of punishing farmers for unintentionally harming wildlife on their own property. If I were a justice, I wouldn’t interpret the term “harm” or “take” that liberally; that’s for lawmakers to do, if they want to amend the Endangered Species Act. To that extent, anyway, I agree with Gorsuch that this particular precedent is wrong-headed.

Belching in class (how rude… and perilous)

Then there are cases where judicial precedent can be a very good thing. In one of my favorite Gorsuch cases he was the lone dissenter, resting his case on a precedent that none of his colleagues would accept. In A.M. v. Holmes (2016), a 13-year-old middle school boy in Albuquerque, New Mexico was arrested for repeatedly belching on purpose during his gym class. The boy created a class distraction and was banished to the hallway, and he poked his head back into the classroom to belch again. At this point banishment to the principal’s office and a school detention would have been reasonable, but instead, the school had the boy arrested, put in handcuffs, and thrown into juvenile detention.

The boy’s mother sued the school officials and arresting officer and it went to court. The judges on the Tenth Circuit took 94 pages to explain why arresting the boy was legit, as the boy had violated a New Mexico statute which made it a crime to “willfully interfere with the educational process of any public or private school”. Gorsuch took only 4 pages to dissent, explaining that judicial precedent made the arrest of the boy unlawful. He pointed out that the New Mexico Court of Appeals long ago ruled that the statutory language on which the officer relied for the arrest in this case does not criminalize noises or diversions that merely disturb the peace or good order of individual classes. It criminalizes severe actions, like physical invasions of the school’s operations. Simply put, said Gorsuch, childish pranks do not justify the arrest of a child. This is a case where precedent is not only a good thing, but plain common sense. It’s too bad the mother didn’t win her case.

Verdict

There’s plenty more in A Republic, If You Can Keep It that shows why Neil Gorsuch is the best SCOTUS justice we’ve seen in a long time (in my view, the best to serve in my lifetime). It’s one thing to preach good jurisprudence, and quite another to consistently practice it. Scalia didn’t always live up to his great standards. I’m not saying Gorsuch is perfect, and I’ve certainly disagreed with him at times. But in his own words, that’s fine, for there can never be agreement all of the time, and our democracy depends on our ability to reason and work with those who interpret things differently.

Overturning Precedent and Concerns About Originalism

Today’s lesson is twofold. The overturning of judicial precedent can be very necessary at times, and judicial originalism is a good thing to be embraced. Here’s an overview of some major Supreme Court rulings that overturned landmark precedents.

1. West Virginia State Board of Education v. Barnette (1943). The court ruled 6-3 that forcing public school students to salute the American flag was unconstitutional, because it compelled them to confess orthodox politics. This overturned Minersville School District v. Gobitis (1940), which had said that mandatory flag salutation was constitutional, because national unity was the basis of national security.

2. Brown v. Board of Education of Topeka (1954). The court ruled 9-0 that segregating black kids from whites — “a separate but equal” policy of educational facilities for racial minorities — violated the 14th Amendment’s Equal Protection Clause. This effectively overruled Plessy v. Ferguson (1896), which had said that while the 14th Amendment did indeed establish absolute equality for the races before the law, separate treatment did not imply the inferiority of African Americans. Brown v. Board of Education of Topeka now said, to the contrary, that “separate but equal” facilities are inherently unequal and thus violate the Constitution: a segregation of public education based on race instills a sense of inferiority and has a detrimental effect on the education and personal growth of African American children.

3. Mapp v. Ohio (1961). The court ruled 6-3 that evidence gathered by authorities through searches and seizures that violated the Fourth Amendment cannot be presented in a state court. This overturned Wolf v. Colorado (1949), which had ruled that illegally obtained evidence did not necessarily have to be excluded from trials (and that the solution to such illegally obtained evidence lay in disciplining police officers under the public eye).

4. Gideon v. Wainwright (1963). The court ruled 9-0 that state courts must appoint attorneys for defendants who cannot afford to retain lawyers on their own. This overturned Betts v. Brady (1942), which had ruled the opposite — that defendants don’t have the right to be appointed counsel if they can’t afford it.

5. Miranda v. Arizona (1966). The court ruled 5-4 that suspects being interrogated by the police must be informed that they are allowed to remain silent and also allowed to ask for an attorney during questioning. This overturned both Crooker v. California (1958) and Cicenia v. Lagay (1958) which said that denying counsel didn’t violate the Due Process Clause of the Fourteenth Amendment.

6. Brandenburg v. Ohio (1969). The court ruled 9-0 that held that the government cannot punish a Ku Klux Klan leader’s inflammatory speech unless that speech is directed to inciting imminent lawless or violent action. Hate speech, or the mere advocacy of violence, does not in itself incite to violence, and generally speaking, hate/inflammatory/rebellious speech is fully protected under the First Amendment. This overturned Whitney v. California (1927), in which a citizen was convicted for helping to establish the Communist Labor Party of America, and teaching the violent overthrow of government.

7. Gregg v. Georgia (1976). The court ruled 7-2 that capital punishment laws don’t violate the Eighth and Fourteenth Amendment’s prohibitions on cruel and unusual punishment. This overturned Furman v. Georgia (1972), which had invalidated all death penalties.

8. Lawrence v. Texas (2003). The court ruled 6-3 that two persons of the same sex cannot be criminalized for engaging in sexual conduct, as it violates the Due Process Clause of the Fourteenth Amendment. This overturned Bowers v. Hardwick (1986), which had ruled that there was no constitutional protection for acts of sodomy, and thus that states could outlaw sodomy if they wanted to.

9. Crawford v. Washington (2004). The court ruled 9-0 that the Sixth Amendment’s Confrontation Clause gives the accused the absolute right to confront witnesses and cross-examine their testimony. This overturned Ohio v. Roberts (1980), which had said that the purpose of the Confrontation Clause was to restrict the admission of unreliable hearsay into evidence, and judges could dispense with it if they found testimony reliable. The result of this was that for 24 years, identical cases were often treated very differently, depending on what a judge personally found to be “reliable”.

10. Citizens United v. Federal Election Commission (2010). The court ruled 5-4 that the government cannot ban corporate funding of independent political broadcasts during election cycles, as it violates the First Amendment. This overturned Austin v. Michigan Chamber of Commerce (1990), which had allowed the government to prohibit corporations from using treasury money to support candidates in elections (on grounds that corporate wealth can unfairly influence elections).

11. Obergefell v. Hodges (2015). The court ruled 5-4 that the right of homosexual marriage is guaranteed by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. This overturned Baker v. Nelson (1972), which said there is no constitutional right to same-sex marriage.

12. Janus v. American Federation of State, County, and Municipal Employees (2018). The court ruled 5-4 that union agency fees extracted from nonconsenting public-sector employees was a violation of the First Amendment. This overturned Abood v. Detroit Board of Education (1977), which had said non-union members may be assessed agency fees as those non-union members are benefiting from the collective bargaining process as much as the union members are.

13. Dobbs v. Jackson Women’s Health Organization (2022). The court ruled 6-3 that the Constitution does not confer the right to an abortion. This overturned Roe v. Wade (1973) and also Planned Parenthood of Southeastern Pa. v. Casey (1992), the latter of which had refined Roe by saying that the Constitution protects the right to seek a previability abortion (approximately before the third trimester).

The vast majority of these rulings (the ten blue ones) were correct in overturning the precedents, though I disagree strongly with the red rulings and feel ambivalent about the green one. My level of dis/agreement has nothing to do with whether or not the outcome is un/favorable to me, though I do personally like the outcomes of all the blue cases, and dislike the outcomes of the red and green. What matters is whether or not the rulings were reached by sound jurisprudence. The reds were clearly not.

In the case of (10), Citizens United v. Federal Election Commission (2010), the majority based their ruling on a flimsy understanding of the First Amendment. I’m pretty uncompromising when it comes to defending the First Amendment, but corporations aren’t members of society in the way that individuals are, and there are compelling governmental interests to curb corporations’ ability to spend money during local and national elections. Fair elections cut to the heart of our democracy, and appeals to the First Amendment to allow unchecked corporate funding are extremely hollow.

The case of (12), Janus v. American Federation of State, County, and Municipal Employees (2018), rests on an even worse appeal to the First Amendment. Union agency fees do not require individuals to endorse ideas they disagree with. Abood v. Detroit Board of Education (1977) made clear that agency fees could only be used to recover the costs of collective bargaining, contract administration, and grievance adjustment purposes, and that they could not be used for ideological or political purposes. Just because unions are political bodies and get politically involved doesn’t mean that paying union dues or agency fees constitutes an endorsement of everything a union does. I’ve been a union member of my public library for 27 years now, and have served proudly as a president for three and a half terms. I’ve also disagreed plenty with what my union does at times, and for the political candidates it endorses. In no way does that mean paying union dues conflicts with my freedom of expression. Paying my union dues is simply right and fair, so that I’m not a freeloader who reaps benefits like a welfare king. Janus goes down as one of the worst rulings that Samuel Alito ever wrote. Abood should not have been overturned.

Then we have the case of (13), Dobbs v. Jackson Women’s Health Organization (2022), with Alito once again at the helm in overturning a landmark 70s ruling. Unlike Janus, however, Dobbs isn’t so easy to tear apart. It’s hard to deny the problems with Roe v. Wade. Even Ruth Ginsburg acknowledged its foundation was shaky. She believed that women ought to have sovereignty over their bodies (as do I), but she also believed that Roe was decided wrong. It was decided on the basis of privacy — holding that the Due Process Clause of the Fourteenth Amendment provides a “right to privacy”, which protects a pregnant woman’s right to an abortion — and Ginsburg thought the Equal Protection Clause would have provided a stronger shield for abortion rights. But, as even the dissenting justices in Dobbs candidly admit, the right to an abortion in any context lacks constitutional foundation.

Ginsburg was no doubt acutely aware of this, which is why she also believed that the Equal Protection Clause should have been used cautiously and incrementally, in a number of rulings instead of one fell swoop — a swoop that probably harmed the evolution of abortion rights by going too far and too fast. With its sweeping pronouncement Roe created a more polarized environment, inviting no dialogue with legislators and effectively removing the ball from the lawmakers’ court. At the time of the ruling (1973), abortion laws were evolving across the nation, with a strong trend towards liberal statutes. Roe contributed to a major pro-life backlash, making a ruling like Dobbs more and more inevitable when conditions were right for it.

As dispirited as I am by Dobbs, I can’t pretend that it was a bad ruling. We should also bear in mind that America is the only place where abortion ever enjoyed Constitutional protection. In other countries where it is legal, it’s legal because it is codified in laws (as it is in some of our 50 United States), laws that are the outcome of legislative give and take, as laws should be. In many of our states, abortion is permitted up to 15 weeks, which is liberal compared to European countries which cut off the abortion option at 12 weeks. If America is ultra-conservative about abortion in some states, it’s flaming liberal in others (in four states, third-trimester abortions are legal), and that’s the nature of federalism. I would prefer to see a right like abortion enshrined in federal law (rather than leave it to the states), but most of my objections to Dobbs have to do with my pro-choice convictions. I can muster up some judicial arguments but they’re not strong.

As for the ten rulings in blue (1-9, 11), they overturned precedent with complete originalist integrity. Students shouldn’t be forced to salute a flag in public schools; check. “Separate but equal” facilities is an oxymoron from a constitutional point of view; check. Evidence gathered illegally (without warrants) should be inadmissible; check. All defendants are entitled to legal counsel, whether they can afford it or not; check. Suspects being interrogated deserve to be reminded of their rights; check. People should have the right to say what they want, no matter how inflammatory, hateful, or rebellious they are; check. Capital punishment is not necessarily cruel and unusual; check. Judges are not supposed to substitute a conditional guarantee of the Confrontational Clause for an absolute one found in the Constitution’s text; check. Gays should be able to bang each other to kingdom come, just like straights; check. Gays should also not be obstructed from marriage; check. All of those rulings overturned precedents that were wrongly decided.

Originalism: a safety corner for the bigoted and privileged?

It continues to surprise me that originalism is seen this way. I can only suppose that leftists have in their mind a Robert Bork-like caricature of originalism, where precedent counts for nothing and jurisprudence is a mask for the dark-age ideologue. (There’s a reason why Bork was rejected by the Senate.) When applied soundly, there is little to fear from originalism. It has proven time and time again to be liberating for all people. Consider:

It certainly doesn’t promote (a) blind nationalism. Take case (1), above, West Virginia State Board of Education v. Barnette (1943), where the court ruled that the First Amendment cannot enforce a unanimity of opinion on any topic, including deference to the American flag. This means that Minersville School District v. Gobitis (1940) — which said that public schools can require students to salute the flag — was wrong the day it was decided. It was overruled by conservative principles grounded in the First Amendment.

And not only do you not have to salute the flag, you can burn the thing (if it’s yours to burn), thanks to Texas v. Johnson (1989). One of the justices in that majority ruling was none other than the arch-conservative originalist, Antonin Scalia. Originalism is the enemy of blind patriotism, not a friend of it, because the framers of the Constitution had no use for unctuousness to one’s government.

Others object that originalism means that (b) racists would have won the day, but that’s entirely false. Take case (2), Brown v. Board of Education of Topeka (1954), which outlawed racial segregation, and which originalist justices cite with approval. It wasn’t a “liberal” or “progressive” ruling (at least not from a judiciary perspective). It was rather Plessy v. Ferguson (1896) — which upheld racial segregation — that was activist and judiciary liberal, because it violated the Fourteenth Amendment (ratified in 1868). The Equal Protection Clause of that Amendment says that individuals in similar situations must be treated equally by the law, and so school segregation is wrong, pure and simple. Saying that a black child cannot go to a white school was just as unconstitutional in 1896 as it was in 1954. Originalist justices understand this.

The idea that we would still have bans on interracial marriage if we adhered to originalism is also backwards. Originalists believe that the Fourteenth Amendment safeguards interracial marriage. That amendment’s Due Process Clause prohibits arbitrary deprivation of life, liberty, and property, while its Equal Protection Clause mandates that individuals in similar situations be treated equally by the law. In other words, originalists believe that Loving v. Virginia (1967) — which struck down interracial marriage bans — was the proper (conservative) ruling. Interracial marriage bans have been unconstitutional since 1868, even if it took 99 years for America to fully realize this.

Ditto for worries about (c) homophobia. Take case (10), Obergefell v. Hodges (2015). Bans on gay marriage were always unconstitutional (or at least since 1868), because of the Due Process Clause and Equal Protection Clause. To ignore that and be a homophobe is to be a judiciary activist instead of a proper conservative.

The hard-core originalist on the court right now is Neil Gorusch, and he authored Bostock v. Clayton County (2020), which says that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Gorsuch argued that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin”. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex — the practice that Title VII prohibits in all manifestations. Gorsuch’s reasoning was value-free and hinged solely on what the word “sex” meant to the lawmakers who put it in the Civil Rights Act. Bostock is in fact one of the most conservative rulings ever handed down by the Supreme Court, though people see it as a very liberal one. It may be friendly to liberal politics, but it’s conservative jurisprudence and the enemy of homophobia.

Still others say that originalism means that (d) sexists would have won the day, and that women would never have become entitled to equal protection under the law. But the Fourteenth Amendment prohibits denying “to any person within its jurisdiction the equal protection of the laws”. “Person,” not “men.” When women got the right to vote (with the Nineteenth Amendment in 1920) and fell under the Equal Educational Opportunities Act (in 1974), it may have been liberal progressive politics providing the impetus, but a judiciary originalist sees the matter a bit differently. The originalist sees “liberal” laws like these as simply removing blind spots and putting into practice what the Constitution always said or implied.

In short, originalism has nothing whatsoever to do with being privileged or bigoted. Few realize that there are liberal justices who pride themselves on being originalists. Ruth Ginsburg said, “I count myself as an originalist,” and Elena Kegan said, “We’re all originalists now”. (She said this in her Scalia Lecture at Harvard Law School in 2015, where she acknowledged the judicial indebtedness to Scalia, who “taught everyone to do statutory interpretation differently.”) For a simple reason: every justice, conservative and liberal, believes the Constitution is one of the finest legal documents ever written. It was always more enlightened and ahead of its time than many justices dreamed possible. It can’t always give us what we want, but then we shouldn’t expect it to. It plays no partisan favorites; it’s better than that.

SCOTUS charts

A few observations from these SCOTUS charts.

  • Gorsuch and the three liberals were less often in the majority this term; the other five remained consistent with last term.
  • Roberts and Kavanagh are almost never outside the majority.
  • Barrett hasn’t been doing much. She wrote the least number of opinions last year (8 ) and second least (behind Roberts) this year (12).
  • Kagan wrote a lot more this term (17) over the previous term.

In and of themselves, these observations don’t mean much but I find it interesting that my two favorite justices (Gorsuch and Kagan) are kissing across the orange-blue divide, and my second two favorites (Thomas and Breyer) the next closest to the middle. Confirms my opinion that these justices at least aren’t ruling as ideologues.

 

Supreme Court Rulings (End of Term 2022)

This was a shit year for the Supreme Court. And when I say that, I don’t just mean I don’t like the outcomes of the rulings. Process is more important than outcome in the judiciary system; otherwise justices are just using the law to push their agendas instead of staying in their lane as interpreters. (The whole point of our checks and balances system.) Usually I find myself agreeing with conservative and liberal justices about equally, depending on the case. Not this year. Read on for the details.

At the end of June 2022, SCOTUS ruled that:

(1) a federal statute requiring stiff penalties for crimes involving a gun is too strict. (7-2)
(2) it is sometimes mandatory for states to use public money to fund religious education (6-3)
(3) states may not impose strict limits on carrying guns in public (6-3)
(4) you can’t sue for money damages if your Miranda rights are violated (6-3)
(5) the Constitution does not confer a right to abortion (6-3)
(6) a public high school coach can pray at midfield following a game (6-3)
(7) a high bar is required for prosecuting doctors who prescribe pain medication (9-0)
(8) district courts are obligated to give a fair hearing to retroactive sentence reductions based on new laws (5-4)
(9) state authorities may prosecute non-Indians who commit crimes against Indians on Indian reservations (5-4)
(10) asylum seekers arriving at the southwestern border don’t have to await approval in Mexico; they can be detained in the U.S. (5-4)
(11) the Environmental Protection Agency (EPA) does not have the power to regulate carbon dioxide emissions from power plants without authorization from Congress (6-3)

Details below.

(1) United States v. Taylor (6/21/22). The decision: An attempted Hobbs Act robbery does not qualify as a crime of violence. Written by Gorsuch for a 7-2 ruling. (4 conservatives + 3 liberals; dissent by 2 conservatives)
— Gorsuch is obviously right. The Hobbs Act punishes robbery that affects interstate or foreign commerce, not crimes of violence. Attempted Hobbs Act robberies don’t invariably involve the use, attempted use, or threatened use of physical force. In Taylor’s case, he agreed to sell someone pot, and then conspired with someone else to rob the man instead; the co-conspirator shot and killed the man. Taylor got a 30-year sentence: 20 for conspiracy and 10 for a crime of violence. SCOTUS ruled that he should have gotten only 20 for conspiracy, because no element of his offense required proof that he used, attempted to use, or threatened to use force during the robbery. The law can’t be used to lengthen sentences for those convicted of a Hobbs robbery offense.
— Alito and Thomas dissented, arguing that the offense for which Taylor was convicted constituted a “violent felony” (use of a gun) in the ordinary sense of the term. This ignores the whole point, that Taylor took a plea deal admitting to attempted robbery under the Hobbs Act, and that the attempted robbery statute of the Hobbs Act contains no language that makes it a crime of violence. Alito and Thomas were dissenting on the basis of what makes practical sense to them, not as jurists.

(2) Carson v. Makin (6/21/22). The decision: A state cannot exclude religious schools from tuition assistance programs that allow parents to use vouchers to send their children to public or private schools. Written by Roberts for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— I’m on the fence with this ruling. Here’s the background: In rural sparsely populated states (like Maine and Vermont), many towns aren’t large enough to operate their own public schools. So the states offer families public dollars to send their children to schools, both public and private, elsewhere. In this case the state of Maine created a tuition assistance program to help families who live in such remote regions. Under the program, parents can send their kids to certain private schools, and the state covers the cost of tuition. To qualify, these schools must give students a secular education. They may be affiliated with — or even run by — a religious organization, but their actual curricula must align with secular state standards. Two families challenged this limitation, arguing that it violated the First Amendment’s free exercise clause.
— In this ruling Roberts claims that secular schooling is a smokescreen for “discrimination against religion”, even though thirty-seven states have amendments to their constitutions that bar government from funding religious institutions, including schools. This ruling invalidates those laws and (arguably) undermines the broader constitutional basis for the nation’s public school system. In her dissent, Sotomayor said the majority opinion “dismantles the wall of separation between church and state that the Framers fought so hard to build”.
— The reason I’m on the fence with this ruling is that it only applies if a state chooses to send taxpayer dollars to private schools through vouchers, tax credits, or scholarships. So a state could avoid this whole business — that is, avoid the obligation to provide assistance to religious schools — by simply sending all its money to public schools; in that case no constitutional issue arises. In this sense Roberts stands by what he wrote in Espinoza v. Montana Department of Revenue (6/30/2020): “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.” That’s fair, but I have mixed feelings. If a state is going to be generous enough to do something it’s not obligated to do in the first place, then perhaps it should have the right to set qualifications based on appropriate academic standards and exclude religious ones.

(3) New York State Rifle & Pistol Association v. Bruen (6/23/22). The decision: States may not impose strict limits on carrying guns in public. Public possession of guns is a constitutional right under the Second Amendment. Written by Thomas for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— Background: In most of the country gun owners can easily carry their weapons in public. But that’s been harder to do in New York and other states (California, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island). New York’s law, which has been in place since 1913, says that to carry a concealed handgun in public, a person applying for a license has to show “proper cause,” or a specific need to carry the weapon.
— For the majority, Thomas states: “Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution. We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.” For the dissent, Breyer states: “The primary difference between the Court’s view and mine is that I believe the Amendment allows States to take account of the serious problems posed by gun violence.”
— The majority would be right if it was interpreting the Second Amendment correctly. As Thomas says, the idea that one must demonstrate a special need in order to exercise one’s amendment right is otherwise unheard of. But the Second Amendment doesn’t mean what many gun advocates believe that it means. The Second Amendment applies to militia; it’s not about sweeping inalienable gun rights for everyone. So I’m with the dissent on this one. It’s worth underscoring that the liberals are actually the Constitutional conservatives in this case, and the conservatives are the judiciary activists. That’s why I’m a conservative when it comes to the judiciary.

(4) Vega v. Tekoh (6/23/22). The decision: You can’t sue for monetary damages if your Miranda rights are violated. Written by Alito for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— For the majority, Alito says that a violation of the Miranda right “is not itself a violation of the Fifth Amendment,” and that “we see no justification for expanding Miranda to confer a right to sue.”
— For the dissent, Kagan says that the court’s ruling strips “individuals of the ability to seek a remedy for violations of the right recognized in Miranda. The majority here, as elsewhere, injures the right by denying the remedy.” She’s right.
— Though I believe this is the wrong ruling, the impact won’t be as dire as some are making it out to be. The ruling doesn’t strike down Miranda rights. Miranda violation is still grounds for evidence being suppressed or convictions being overturned. The ruling arguably makes Miranda harder to enforce, because you can’t sue if your Miranda rights are violated — if the case never goes to trial, or if the government never seeks to use the statement, there’s no remedy for the government’s misconduct. On the other hand, lawsuits against police seldom have impact on police behavior anyway. The police department just pays them out of the city’s treasury and individual officers don’t suffer any consequences.

(5) Dobbs v. Jackson Women’s Health Organization (6/24/22). The decision: The Constitution does not confer a right to an abortion. Roe v. Wade and Planned Parenthood v. Casey are overruled. Written by Alito for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— Alito writes for the majority: “Roe was egregiously wrong from the start. The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority.” Also: “The viability line, which Casey termed Roe’s central rule, makes no sense, and it is telling that other countries almost uniformly eschew such a line. The Court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allows the States less freedom to regulate abortion than the majority of western democracies enjoy.”
— Thomas concurs separately, saying that the due process clause also does not protect a right to an abortion.
— Kavanagh concurs separately, saying that the Constitution is neutral on abortion, and so the Court was wrong in Roe to weigh in and take a side.
— Roberts concurs partly, saying that he would have gotten rid of the viability line (the idea that the Constitution protects a right to an abortion until the fetus becomes viable), but he would not have decided anything else. So even though he upholds the Mississippi law’s abortion restrictions, he doesn’t share the majority’s reasoning in overturning Roe entirely. This is why it fell to the most senior justice of the majority (Thomas) to assign the writing of the opinion, rather than to Roberts as the chief justice. In actuality, Roberts’ “concurrence” reads almost as much as a dissent — chastising the court for a lack of judicial restraint in not rendering a more narrow opinion that wouldn’t have overruled Roe and Casey — but that’s an illusion, since his more narrow interpretation would have rendered Roe a dead letter anyway.
— The dissent is a joint dissent — very unusual, but not unprecedented — written by Breyer, Sotomayor, and Kagan: “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent. The majority says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. Because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions.”
— Who’s right? I’m strongly pro-choice and don’t like this outcome at all. But the question is whether or not Roe v. Wade is Constitutional. You can make a strong case for either side, and that’s what happened here. I’m not going to say the ruling is wrong, but if I were a justice, I would have argued much as the dissent did.

(6) Kennedy v. Bremerton School District (6/27/22). The decision: The free exercise and free speech clauses protect a coach’s right to pray at midfield following high school football games. Written by Gorsuch for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— Says Gorsuch: “the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s.” Really? “The fear of offending the Establishment Clause does not require the government to single out private religious speech for special disfavor.” But was Kennedy’s expression private? “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.” Of course, but that doesn’t mean government employees can parade their religious expression in prominent ways when they’re on the clock.
— The Supreme Court has consistently rejected prayer in public schools when the prayer is officially required or part of a formal ceremony (like a high school graduation or sports game). Organized prayers led by students at high school football games were held to violate the First Amendment’s prohibition of government establishment of religion. “The delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship,” wrote Justice John Paul Stevens 22 years ago (Santa Fe Independent School Dist. v. Doe, 6/19/2000)). Kennedy’s lawyers claimed that school prayers like that are irrelevant because they involve government speech, whereas Kennedy’s speech is private speech, not governmental. He insisted to the Supreme Court that he was acting on his own behalf in praying, not speaking as a mouthpiece for the school. The school district told a different story: that the students on the football team looked up to their coach and felt coerced into doing as he did. But frankly IMO it doesn’t matter if the students felt coerced or not. Kennedy was a mouthpiece for the school whether he intended to be or not. He was on the clock and engaging in a prominent public display of religiosity. The school officials have every right to tell him that such behavior is inappropriate for a government employee.
— Sotomayor dissented, joined by Breyer and Kagan, arguing that a public school is under no obligation to allow a school official to kneel, bow his head, and say a prayer at the center of a school event. “The Constitution does not authorize, let alone require, public schools to embrace this conduct.”
— The dissent is correct. The majority’s ruling will encourage government employees to express their faiths more openly while on the job. I think it’s important to note that this ruling is very different from the landmark case involving religious speech in public forums (Good News Club v. Milford Central School (6/11/01)). In that case, Clarence Thomas rightly wrote for the majority (and he was joined by the liberal Breyer, who dissented in this case) that a school district cannot prohibit the free speech rights of religious groups wanting access to a school district’s public forums. In that case, Milford Central School was trying to discriminate against religious speech by an evangelical Christian club for children, on grounds that its policy prohibited the use of school facilities for religious purposes. Thomas rightfully argued that the Establishment Clause argument didn’t carry weight because it wasn’t a mandatory classroom setting, and parents had to give permission for their children to attend the after-school meetings. Things work similarly at my public library. Religious groups are allowed to book our public meeting rooms on this very basis, as I believe they should be able to (as long as they’re non-profit). But public events involving staff who prominently express themselves religiously on the clock is another matter. It would be inappropriate for a pubic librarian to do something like that while on the job, and my library director would be fully within her rights to discipline one of her librarians for doing so.
— A note about Sotomayor: While I agree with her opinion, I wonder if she would have sung differently had this case involved a Muslim coach praying to Allah. Would she have adopted the same line — that the Constitution doesn’t require public schools to embrace such conduct — or would she have said that disciplining such a coach amounted to discrimination against Muslims? I’m confident that Kagan and Breyer’s judgment would have been the same, but Sotomayor I’m not sure about. Ditto with the majority: I have no doubts that Gorsuch would have written the same ruling on behalf of a Muslim coach (he makes a career of defending the rights of everyone under the sun, from the Native Americans, to the transgendered, to the religiously devout), but I could see any of the other five conservatives going differently in that case.

(7) Ruan v. United States (6/27/22). The decision: Prosecutors need a lot of proof to convict doctors who are accused of excessively prescribing addictive drugs. Written by Breyer for a 9-0 ruling.
— A sound ruling, saying that once doctors produce evidence that they are authorized to dispense drugs like opioids, prosecutors need to prove they knowingly or intentionally acted in an unauthorized manner.

(8) Concepcion v. United States (6/27/22). The decision: The First Step Act requires district courts to consider intervening changes of law in exercising their discretion to reduce a sentence. Written by Sotomayor, for a 5-4 ruling. (3 liberals + 2 conservatives; dissent by 4 conservatives)
— Background: In 2008, Carlos Concepcion pleaded guilty to crack cocaine charges, and in 2009 he was sentenced to 19 years in prison. While he was serving his sentence, Congress passed the Fair Sentencing Act, which reduced the statutory penalties for most federal crimes involving crack cocaine. In 2018 Congress made these changes retroactive, and Concepcion moved for resentencing. The district court denied his motion, and Concepcion appealed. The U.S. Court of Appeals affirmed, finding that the district court was not obligated to update and reevaluate the sentencing factors.
— Sotomayor wrote for the majority, joined by liberals Kagan and Breyer, and conservatives Thomas and Gorsuch. They overruled the lower courts, saying that the First Step Act requires district courts to at least consider intervening changes of law in exercising their discretion to reduce a sentence: “It follows that when deciding a First Step Act motion, district courts bear the standard obligation to explain their decisions and demonstrate that they considered the parties’ arguments. The First Step Act does not require a district court to be persuaded by the arguments raised by the parties before it, but it does require the court to consider them.”
— Kavanagh wrote for the dissent, joined by Roberts, Alito, and Barrett. “District courts have free rein either to take into account — or to completely disregard — intervening changes since the original sentencing.”
— I don’t have the competency to evaluate the First Step Act, but I’m persuaded by the majority’s reasoning.

(9) Oklahoma v. Castro-Huerta (6/29/22). The decision: State authorities may prosecute non-Indians who commit crimes against Indians on Indian reservations. Written by Kavanaugh for a 5-4 ruling. (5 conservatives; dissent by 1 conservative + 3 liberals)
— The case involves Victor Manuel Castro-Huerta, a non-Native, who was convicted in an Oklahoma state court of child neglect and sentenced to 35 years. The victim (his stepdaughter) is Native American, and the crime was committed within the Cherokee Reservation.
— In his dissent (joined by the 3 liberals), Gorsuch rightly blasts the majority: “Where this Court once stood firm, today it wilts. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another.”
— Gorsuch is referring to McGirt v. Oklahoma (7/9/2020), which held that states cannot prosecute crimes committed on Native American lands without federal approval. But this ruling left open the question of non-Natives who commit crimes on Native lands. Gorsuch wrote the opinion for McGirt two years ago, and was joined by the 4 liberal justices at the time. Today’s ruling should have gone the same way, but with Ginsburg replaced by Barrett, it was not fated to be.
— Gorsuch is also referring to the landmark ruling of Worcester v. Georgia (1823), which has persisted for over 200 years: Native tribes retain their sovereignty unless and until Congress ordains otherwise. Gorsuch indicts his “conservative” colleagues for going back on the U.S. government’s promise to respect, honor and uphold tribal sovereignty. In fact, it is Gorsuch who is the proper judiciary conservative here, along with the liberals.

(10) Biden v. Texas (6/30/22). The decision: The Biden administration can end the Trump-era immigration program that forced asylum seekers arriving at the southwestern border to await approval in Mexico. Written by Roberts for a 5-4 ruling. (2 conservatives + 3 liberals; dissent by 4 conservatives)
— In other words, the Biden administration is not obligated to continue enforcing the Migrant Protection Protocols, because the Biden Department of Homeland Security decision to end the policy has legal effect. It seems a no-brainer, since immigration policies are determined by the executive in charge. The legal question is whether immigration authorities, with far less detention capacity than needed, must send people to Mexico or whether they have discretion under federal law to release asylum-seekers into the United States while they awaited their hearings.
— Roberts was joined by Kavanaugh, Kagan, Sotomayor, and Breyer. Barrett partly agreed with the majority, but dissented on other points, joined by Thomas, Alito, and Gorsuch. It’s a complex case, but I think I’m with the majority.

(11) West Virginia v. Environmental Protection Agency. The decision: The Environmental Protection Agency (EPA) does not have the power to regulate carbon dioxide emissions from power plants without authorization from Congress. Written by Roberts for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— Says Roberts: The EPA “must point to clear congressional authorization for the power it claims. Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible solution to the crisis of the day, but it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.”
— The ruling means that agencies like the EPA cannot create regulations that have expansive social and economic impacts on their own, despite decades of precedent doing just that. Such rules now require Congress to specifically create laws to implement them, and given the difficulty of passing federal legislation, the EPA’s ability to regulate pollution that’s baking the planet is now seriously impaired.
— Kagan is in top form, writing for the dissent: “Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time’. The limits the majority now puts on EPA’s authority fly in the face of the statute Congress wrote. The majority says it is simply ‘not plausible’ that Congress enabled EPA to regulate power plants’ emissions through generation shifting. But that is just what Congress did when it broadly authorized EPA to select the ‘best system of emission reduction’ for power plants. The ‘best system’ full stop — no ifs, ands, or buts of any kind relevant here. The parties do not dispute that generation shifting is indeed the ‘best system’ — the most effective and efficient way to reduce power plants’ carbon dioxide emissions. And no other provision in the Clean Air Act suggests that Congress meant to foreclose EPA from selecting that system; to the contrary, the Plan’s regulatory approach fits hand-in-glove with the rest of the statute. The majority’s decision rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it in Section 111’s general terms. But that is wrong. A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise. That is what Congress did in enacting Section 111. The majority today overrides that legislative choice. In so doing, it deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases… Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.”

If You Could Live (or Relive) Two Years in the Past

Here’s an interesting exercise: If you could go back in time and live out two full years in America, any two years between 1913-1992, what would they be? In other words, sometime after all continental states were admitted to the union, but before the World Wide Web was made public. My years of choice are 1925 and 1973.

The Year 1925

The mid-twenties in general were a time to be alive. It was the ultimate decade of peace, prosperity, and freedom. Presidents Warren Harding (1921-23) and Calvin Coolidge (1923-29) kept the nation out of war and needless costly foreign intervention. They raised the standard of living for millions. Technological advances and mass production made consumer goods affordable, and the spread of electrical power created a demand for appliances. Many people could buy cars, yielding a new world of paved roads and stores. New York became the largest city in the world, overtaking London. Child mortality rates dropped across the nation. Money was spent lavishly on public education. Women were now able to vote, giving the country 26 million new voters. People danced the nights away, to the latest music on radio. There was Prohibition, which was bad itself, but yielded the benefit of the black market with bootlegging and speakeasies; in effect the price of booze went way down. If there was a decade I could visit during the first half of the twentieth century, it would be the 20s hands down, and the particular year I choose is 1925.

Here are some of the note-worthies of 1925.

Great Books. Some say the greatest year for books was 1925. Books like An American Tragedy and The Great Gatsby were hugely influential.

The First Motel. Hotels had been around since 1794, but the first motel opened in California in 1925, located about halfway between San Francisco and Los Angeles. It charged a rate of $1.25 per night. Motels hinted that car culture would soon take over the American way of life.

Gitlow v. New York. This year the Supreme Court made a landmark ruling: that the right of free speech protects a person from state interference as much as federal interference. The Court had previously held, in Barron v. Baltimore (1833), that the Constitution’s Bill of Rights applied only to the federal government, but Gitlow reversed that precedent and established that while the Bill of Rights was designed to limit the power of the federal government, the denial of these rights by a state government constitutes a denial of due process which is prohibited under the Fourteenth Amendment.

Pierce v. Society of Sisters. In this year the Court also held that children did not have to attend public schools. States that made such a requirement were acting unconstitutionally.

Scopes Monkey Trial. In the summer of 1925, the Scopes Trial was all the rage — staged deliberately to attract publicity. Tennessee upheld a law prohibiting the teaching of evolution in public schools, and fined Scopes $100, although the state supreme court overturned the ruling on a technicality. The nation would have to wait until 1968 for SCOTUS’s substantive ruling: that banning evolution violated the Establishment Clause of the First Amendment, since the bans are primarily religious. But the Scopes trial itself was a benchmark in forcing the question of whether or not evolution should be taught in public schools.

Weird Tales and Adventure (“The Camp-Fire”). The pulp magazines became wildly popular in the 20s. Weird Tales — still regarded today as the most important and influential of all fantasy magazines — had launched its first issue in 1923, and in 1925 began publishing an issue every month. Adventure Magazine, started back in 1910, had grown so popular by the 20s that its letters page, “The Camp-Fire” (not to be confused with the youth development organization by the same name, that also started in 1910), had become a major cultural phenomenon. The Camp-Fire featured editorials and fiery discussions about all sorts of topics, usually about whether or not the author had the right facts in his or her story. Historical accuracy, geographical accuracy, the kind of weapons the characters used — all of these and more were debated with passion. By 1924, a number of Camp-Fire Stations — locations where Adventure readers could hook up — were established across the U.S. and even in other countries. In 1925 one of the Camp-Fire’s most fiery debates was over the character of Julius Caesar. The writers often embellished their lives, reinvented themselves with outlandish fictions (even in their bio sketches); some were con artists. By 1925 Adventure was unquestionably the most important pulp magazine in the world, let alone the U.S. I’d love to live in 1925 as a subscriber to Weird Tales and Adventure, and as a Camp-Fire freak.

Drag Balls. The tradition of masquerade and civil balls (“drag balls”) goes back to 1869 in Harlem. By the mid-1920s, at the height of Prohibition, they were attracting thousands of people of different races and social classes—whether straight or gay. We tend to think of Stonewall (in 1969) as the beginning of the gay rights movement, but decades before that, Harlem’s drag balls were part of an LGBTQ nightlife-culture that gave us gay and lesbian enclaves. What fun. Only after the Depression would this libertine culture fall out of favor, as many would blame this cultural experimentation for the economic collapse.

The Year 1973

The early 70s were gloomy and nihilistic, but that’s what generated so much artistic creativity and cultural progress. Disillusion, cynicism, paranoia, and frustrated rage coalesced in the ’60s aftermath, yielding introspection and existentialism. Films were about dirty cops, shady leaders, conspiracies, isolation, and loneliness. Rock lyrics were about individuals trying desperately to connect to others, to themselves, and to the world around them. The dress and hair styles were awful, granted, but aside from that, it was a groovy period. The best year in particular is 1973. I was alive that year, but so tiny and young that I remember nothing about it. I’d love to go back and live out the year as an adult.

Here are the note-worthies of 1973:

The Exorcist. The best and scariest film of all time is released. I’d give anything to see this masterpiece on screen when everyone was fainting in the isle and running from the theaters.

The Godfather. The epic film wins Best Picture, becoming the new Citizen Kane.

Selling England by the Pound. The best album by the best band of all time. Or at least, Genesis was the best band while Peter Gabriel was involved.

Dark Side of the Moon. The most important album by the most important band of all time. Even if The Wall is Floyd’s best, Dark Side’s influence can’t be exaggerated.

All in the Family. The best episodes — meaning the most offensive and insanely hilarious ones — from the best TV sitcom of all time come from the late part of season 3 and the early part of season 4, which spanned the year of 1973: “Archie Goes Too Far”, “Archie Learns His Lesson”, “The Battle of the Month”, “We’re Having a Heat Wave”, “Henry’s Farewell”, “The Games Bunkers Play”, “Black is the Color of My True Love’s Wig”, to name the very best episodes.

Roe v. Wade. Landmark supreme court ruling protecting the right to abortions.

The Paris Peace Accords. After 16 years, American involvement in the Vietnam War ended. Peace at last.

The War Powers Resolution. The congressional resolution (vetoed by Richard Nixon but then overridden) limits the president’s ability to initiate or escalate military actions abroad. It states that “the collective judgment of both the Congress and the President will apply” whenever the American armed forces are deployed overseas. Many presidents since then have failed to comply with this resolution, and for the worse.

Diagnostic and Statistical Manual for Mental Disorders. The American Psychiatric Association declares that homosexuality is not a mental illness or sickness, and removes from its manuals the listing of same-sex activity as a disorder.

The Endangered Species Act. The most comprehensive legislation enacted (in any nation) for the protection of endangered species.