Each year, the United States Supreme Court receives 7-8,000 petitions. It accepts (grants certiorari) and renders decisions on approximately 80 cases. The Court used to hear more, but even using current metrics, 80 cases a year for a few hundred years is a lot of decisions.

Let’s face it – render that many decisions and not all of them are going to be good ones. So of these tens of thousands of decisions, which ones were absolute stinkers, the worst of the worst?

We’ve compiled a list of the ten worst decisions below. Any such list is subjective, so here is some context for our choices. (Skip context and go to the decisions)

Why do we need a Supreme Court?

Everyone who has fitfully slumbered through 7th grade social studies class remembers that the US system is divided into three branches; the executive, the legislative, and the judicial.

This political three legged stool is designed to provide checks and balances. It prevents any one branch from amassing too much power. It prevents any one actor from doing too much mischief. Critically, it also serves to balance the rights of the majority and the minority.

In theory, the interests of the majority are the sole focus of the popularly-elected legislative and executive branches.

(Okay, Okay. We said “in theory”. We realize that in practice, the executive branch (the president) is likely to devolve into bureaucratic despotism if it can get away with it. The legislative branch (Congress) will constantly seek to bribe voters with their own money. Both the executive and the legislative branches are actually beholden to special interests and populated by power-hungry unscrupulous scoundrels.)

Nevertheless, the whims of the majority are presumed to command the full and complete attention of its elected representatives, each of whom passionately aspires to remain an elected representative. Our republican government eliminated many of the unpleasant excesses of mob rule, but every two and four years, the mob, err majority, can still enforce its will via congressional and presidential elections.

So, if the needs and whims of the majority are taken care of by the executive and legislative branches, why do we need the judiciary?

The answer is more apparent if we instead ask who is responsible for protecting the interests of the minority.

What if the majority decides that it is in the public interest to:

criminalize dissent, or

convert private property to public benefit without just compensation, or

intern people deemed dangerous due to their heritage, or

arbitrarily take away someone’s livelihood, or

impinge on someone’s exercise of religion, or

interfere in someone’s most personal decisions about marriage, childbearing, or what they eat or drink or smoke?

Who stands up for the minority, for the individual? Who faces down the majority, reminding them that, irrespective of whether or not benefits flow to the many, the Constitution demands that the costs not be arbitrarily imposed upon the few?

Who gives the Constitution a voice, ensuring it is not merely a set of assembly instructions for setting up a new government, but instead remains an ongoing binding restriction on the government once established?

This role has fallen to the Supreme Court. In fact, it is arguable that the primary role of the judicial branch is to protect the minority. Ever since Marbury v. Madison, when the Supreme Court established the principle of judicial review, i.e. when it decided the Constitution gave the judiciary the power to strike down laws, statutes, and government actions that (the court) deems contravene the U.S. Constitution, the most important role of the Court became that of a referee charged with ensuring the branches of the government who represent the majority ‘play by the rules’ and thus respect the rights of the minority.

In the short term, the Supreme Court protects the minority, the individual, by serving as a check upon the will of the majority. If the government is to infringe upon individual rights, it should need to demonstrate a compelling interest and to adopt the least intrusive means to advance that interest.

Over the longer term, the Supreme Court protects minority and majority alike by serving as a check upon the desire of powerful state actors to accumulate still more power, typically in the guise of ‘service of the majority’.

Certainly Marbury v. Madison’s assertion of judicial review was controversial in 1801. Then again, it was never controversial enough for the Constitution to be amended to take it away.

Even in modern times, the belief that the Supreme Court should be a counterbalance to majoritarian excess is not shared by everyone. Robert Bork’s dismissive statement that “being at the mercy of legislative majorities’ is merely another way of describing the basic American plan: representative democracy” reflects his derision for the anti-majoritarian role of the Court.

Yet we find Princeton Political Scientist Stephen Macedo’s rejoinder more persuasive – “When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.”

As Patrick Henry is reputed to have (but almost certainly didn’t) said: “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.” While misattributed, the statement remains both correct and important.

So our expectation is that:

The Supreme Court will protect the minority from the excesses and enthusiasm of the majority, using the Constitution, particularly the Bill of Rights and the 14th Amendment, as its cudgel.

In discharging this responsibility, the Court will use judicial deference sparingly, lest it become judicial abdication. (In this light, we are generally unsympathetic to complaints about ‘legislating from the bench.’ If the majority is really convinced the Court got it wrong, Congress can easily pass a replacement law or the constitution can be amended.)

Standing athwart the will of the majority is always difficult. Even with the protection of lifetime appointments, the justices are not always up to the task (as hinted above and illustrated below). When the Court defers to the whims of the majority by watering down protections for individual rights, or by excluding certain individuals from protection entirely in the name of some hazily-defined greater good, or by letting the government expand beyond its constitutionally prescribed role, we generally view that as an abdication of responsibility, and hence a bad decision.

Our list of ten decisions is thus drawn from cases where the Court fell down on its responsibility. Regrettably, there are more than a few cases to choose from; with only ten slots, we had to make some tough decisions. We have tried to highlight Supreme Court decisions with big, negative and lasting impacts and decisions that have created important and pernicious precedents.

Anyway, here are the worst…

In this context, we present our choices for the ten worst Supreme Court decisions.

1. Korematsu v. United States, 323 U.S. 214 (1944) upheld internment of citizens of Japanese descent during World War II.

When Fred Korematsu, born in the United States of Japanese parents, challenged the constitutionality of Franklin Delano Roosevelt’s Executive Order 9066, which ordered more than 100,000 Japanese Americans into internment camps during World War II regardless of citizenship, the Supreme Court ruled 6-3 that the executive order was constitutional.

Korematsu is still on the books, but perhaps its biggest import is as a cautionary tale. Justice Antonin Scalia called the ruling “wrong,” but added that “you are kidding yourself if you think the same thing will not happen again” citing the Latin “Inter arma enim silent leges … In times of war, the laws fall silent.”

Chief Justice William Rehnquist noted “There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors.” The Supreme Court can serve as an impediment to bad law, but is hardly a bulwark against it, particularly when the majority is bound and determined to run roughshod over the rights of the minority.

2. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) held that black people were not entitled to the same rights of citizenship as white people.

Chief Justice Roger Taney argued that “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration.”

The court ruled 7-2 that “a negro, whose ancestors were imported into [the U.S.], and sold as slaves”, whether enslaved or free, could not be an American citizen and therefore had no standing to sue in federal court. Furthermore, the federal government had no power to regulate slavery in the federal territories acquired after the creation of the United States.

Taney was hoping the decision would clear up the contentious issue of slavery once and for all, and in a way, it did … Eight years, a civil war and 600,000 lives later, Dred Scott was negated by the 13th and 14th amendments.

3. Plessy v. Ferguson, 163 U.S. 537 (1896) held that ‘separate but equal’ was constitutional. The court ruled 7-1 that states could segregate public facilities.

In 1890, the state of Louisiana passed a law (the Separate Car Act) that required separate accommodations for blacks and whites on railroads, including separate railway cars.

Interestingly, the railroads were opposed to this law as it increased their costs. A large number of white and black citizens were appalled as well. Homer Plessy sat in the ‘whites only’ car as part a well-orchestrated effort to create a test case. Unfortunately, it was a test case that didn’t end well. Its unfortunate outcome survived for sixty years until it was overturned by Brown v Board of Education in 1954.

4. Wickard v. Filburn, 317 U.S. 111 (1942) and Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005) held that the Federal Government could regulate just about anything that could possibly be construed as economic activity.

According to a plain language reading of the Constitution, the Federal Government’s powers to regulate commerce are clearly defined and strictly limited. The Constitution’s commerce clause (Article I, Section 8, Clause 3) permits the Federal Government ”to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes.”

Despite the specific language in the Commerce Clause, the Court in Wickard held that the federal government could forbid an Ohio farmer from growing and consuming a specific amount of wheat on his own farm. 63 years later, the Court in Raich held that medical marijuana cultivated and consumed entirely within the State of California somehow still counted as interstate commerce and was therefore subject to the federal Controlled Substances Act.

In Wickard, the Justices assumed the role of cheerleaders for Roosevelt’s New Deal, and rubber stamped the dramatic expansion of federal powers necessary to impose it. Raich may be a lesser example of Scalia’s “Inter arma enim silent leges … In times of war, the laws fall silent” dictum; in this case ‘war’ was the so-called ‘war on drugs.’ Given Scalia’s usual respect for constitutional limitations on federal power, his vote with the majority in Raich must be viewed as somewhere between bizarre and inconsistent.

Justice Clarence Thomas summed up Raich when he said “By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power.” Both Wickard and Raich remain law.

5. Buck v. Bell, 274 U.S. 200 (1927) upheld the forced sterilization of people with intellectual disabilities “for the protection and health of the state.”

In the 8-1 decision, Oliver Wendell Holmes famously and callously wrote that “society can prevent those who are manifestly unfit from continuing their kind…three generations of imbeciles are enough.” In the Court’s view, ruled forced sterilization did not violate the Due Process clause of the Fourteenth Amendment. The Supreme Court has never expressly overturned Buck v Bell.

6. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) held that the 14th amendment didn’t protect economic liberties.

After the Civil War, Congress passed the 14th amendment to protect former slaves against discrimination by the states. The 14th Amendment’s Privileges or Immunities Clause said that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

Somewhat bizarrely, eight years later, the Supreme Court ruled 5-4 that a citizen’s constitutional “privileges and immunities,” were limited to those spelled out in the Constitution (i.e. access to ports and navigable waterways, the ability to run for federal office, and the right to be protected while on the high seas.) In short, the Court decided that the 14th amendment protected neither civil rights nor economic liberties.

Thus the New Orleans butchers who argued that the Louisiana legislature’s 1869 grant of a state-sponsored monopoly to a slaughterhouse infringed upon their economic liberties (their right to earn a living) got short shrift from the Court. (Unsurprisingly, Louisiana argued that the slaughterhouse monopoly only seemed like a vehicle to bestow patronage but was instead a vital public health and safety measure.)

Harvard Law School professor Laurence Tribe wrote that “the Slaughter-House Cases incorrectly gutted the Privileges or Immunities Clause.” Yale Law School professor Akhil Amar wrote, “Virtually no serious modern scholar—left, right, and center—thinks that Slaughter-House is a plausible reading of the Fourteenth Amendment.” Certainly Slaughter-house’s interpretation of the 14th amendment is contrary to the clearly expressed views and congressional testimony of Rep. John Bingham, the principal framer of the Fourteenth Amendment, who advocated that the 14th amendment applied the first eight amendments of the Bill of Rights to the States.

The 1873 decision reflected a Court (and perhaps a nation) that after eight years was getting cold feet on restricting the powers of the states and protecting the rights of African Americans. Similar to the shabby treatment usually accorded the 2nd amendment and often the 4th amendment, 14th amendment jurisprudence became a combination of ignoring it and explaining it away, an early casualty of the Supreme Court’s progressive era-infatuation with majoritarianism.

7. In the Civil Rights Cases, 109 U.S. 3 (1883) the Court ruled 8-1 that the Civil Rights Act of 1875 which prohibited racial discrimination in public places (such as hotels, restaurants, theaters and railroads) was unconstitutional.

Obviously racial segregation was not new, but the ruling facilitated Jim Crow laws that codified its previously private, informal, and local practice. The decision was never overturned, although later rulings based on other Constitutional provisions rendered it moot.

8. Schenck v. United States, 249 U.S. 47 (1919) and Dennis v. United States, 341 U.S. 494 (1951) upheld the criminalization of otherwise constitutionally-protected speech.

In Schenck, Justice Oliver Wendell Holmes, Jr., articulated the famous “clear and present danger” standard for prohibiting speech that would otherwise be protected under the First Amendment: “Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment, may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.”

Schenck was the source of the famous “shouting fire in a crowded theatre” analogy, although the comparison between distributing fliers urging draft resistance and “shouting fire” seems overwrought, even for someone with Justice Holmes’s consistent disdain for the Bill of Rights.

In Dennis, a plurality of the justices further eviscerated the First Amendment, holding that Schenck’s “clear and present danger” standard was deficient because it would permit speech that did not present a clear and present danger but could, less directly and immediately, result in an attempt to violently overthrow the government.

Schenck and Dennis were never explicitly overturned, but Dennis was walked back in Yates v US (1957). In Brandenburg v. Ohio, 395 U.S. 444 (1969) the Court held that government cannot punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

9. Nebbia v. New York, 291 U.S. 502 (1934), United States v. Carolene Products Company, 304 U.S. 144 (1938) and Williamson v. Lee Optical Co., 348 U.S. 483 (1955) held that state laws regulating business would be subject to rational basis review rather than strict scrutiny. It then lowered the bar even further by discarding actual analysis in favor of a hypothetical approach in determining rational basis. The decisions removed virtually all protections for unenumerated rights, particularly economic liberties, and granted the government nearly unlimited power to blatantly and unambiguously promote special interests and cronyism.

Traditionally, courts would engage in an in-depth analysis of the objective of, and justification for, challenged laws to determine whether their purpose was a proper one. If the law in question was enacted “genuinely to serve the public welfare,” then it would be deemed legitimate, but if the court found the law to be “arbitrary, unreasonable, or discriminatory,” the law could be struck down as beyond the proper scope of the government’s powers.

However, during the progressive era, judicial review of legislative initiatives that ostensibly reflected the will of the majority was increasingly viewed with contempt. In an influential 1893 book, “The Origin and Scope of the American Doctrine of Constitutional Law,” Harvard law professor James Bradley Thayer argued that statutes should be invalidated only if their unconstitutionality is “so clear that it is not open to rational question.”

Justice Holmes, a student of Thayer’s, laid out a version of what would become rational basis review in his dissent in Lochner v. New York, 198 U.S. 45 (1905), but it was not explicitly applied until the Court ruled 5-4 in Nebbia that fixing the price of milk was not so ‘unreasonable or arbitrary’ to be outside the state’s purview and that ‘the wisdom of the policy adopted, (as well as) the adequacy or practicability of the law “ were outside the bounds of judicial review.

The notion of “levels of judicial scrutiny,” was introduced in Footnote 4 of Carolene Products. The footnote laid out three levels of judicial scrutiny:

strict scrutiny,

intermediate scrutiny, and

rational basis review.

Certain so-called “fundamental rights” are accorded “strict scrutiny.” In order for a government to infringe upon these “fundamental” rights, it must have a compelling interest and adopt the least intrusive means to advance that interest.

Rights deemed less than fundamental are accorded “intermediate scrutiny.” The law in question must further an important government interest by means that are substantially related to that interest, but the means do not need to be narrowly tailored nor the least intrusive way of furthering the interest.

Rights such as economic liberty are relegated to a still lower level of protection known as “rational basis review,” which merely asks whether a law is “rationally related” to a “legitimate” government interest. While under strict scrutiny and intermediate scrutiny the burden of proof is on the state, the burden shifts to the challenger under rational basis.

In Williamson v Lee Optical, Justice Douglas watered down the rational basis protections still further, replacing the realistic actual rational basis scrutiny that was employed by the lower court with a formalist hypothetical rational basis that is deemed satisfied so long as a judge can imagine any possible rational basis for a statute.

The Court’s decision acknowledged that the law likely imposed a “needless, wasteful requirement” but opined that “it is for the legislature, not the courts to balance the advantages and disadvantages of the new requirement” and that “for protection against abuses by legislatures, the people must resort to the polls, not to the courts.”

Douglas wrote “… the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it…The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”

While the judicial deference embedded in rational basis was the darling of the left during the progressive and New Deal eras and was selectively applied by the Warren Court in the 1960s, it has advocates on both sides of the political spectrum. Justice John Paul Stevens noted in a 2008 concurring opinion: “[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: ‘The Constitution does not prohibit legislatures from enacting stupid laws.'” As mentioned previously, would-be Justice Robert Bork was perhaps the poster child for deference on the right.

For more on Rational Basis, see a related piece Why stop with Chevron? Four Supreme Court doctrines that should be discarded.

10. Bennis v. Michigan, 516 U.S. 442 (1996) held that “an owner’s interest in property may be forfeited by reason of the use to which the property is put, even though the owner did not know that it was to be put to such use,” i.e. that civil asset forfeiture didn’t violate the Due Process Clause of the Fourteenth Amendment nor the Takings Clause of the Fifth Amendment.

When Tina Bennis’s husband was caught with a prostitute in a vehicle the Bennis’s owned jointly, the State of Michigan seized the car under civil forfeiture. Even though Ms. Bennis was unaware of her husband’s activity, the trial court permitted no offset for Bennis’s joint ownership.

Runners Up

The problem with a top ten list is that there are so many worthy contenders, yet just ten slots. Here is our list of runners up – decisions that were certainly bad, but generally not uniquely bad nor sufficiently impactful nor dismayingly persistent to make the top ten. Even the list of runners up is by no means exhaustive; we apologize for overlooking so many other supremely qualified candidates.

Miller v. California, 413 U.S. 15 (1973) reaffirmed the government’s right to prohibit speech deemed to be obscene by replacing an existing vague and murky legal definition of obscenity with an all-new vague and murky definition of obscenity. Obscenity jurisprudence, from top to bottom, is a wholesale abdication of the protections afforded by the first Amendment, replete with vague, bad court rulings.

Pace v. Alabama, 106 U.S. 583 (1883) affirmed that a law forbidding interracial marriage was constitutional because it was “race-neutral” – blacks couldn’t marry whites in the same way that whites couldn’t marry blacks. This unanimous ruling was rejected by the Supreme Court in 1964 in McLaughlin v Florida (eliminating the ban on cohabitation) and in 1967 in Loving v Virginia (eliminating the ban on interracial marriage.)

Bowers v. Hardwick, 478 U.S. 186 (1986) upheld a Georgia state law banning sodomy—but only as it applied to homosexuals, not to heterosexuals.

NFIB v Sebelius 567 U.S. 519 (2012) Allowed Congress to force people to buy health insurance from private companies on the basis of the regulation being a “tax,” by implication allowing Congress do virtually anything with the taxing power that no other constitutional provision, even the expansive view of the Commerce Clause, would allow. NFIB v. Sebelius may be the ultimate example of post-New Deal judicial deference, reminding conservatives that deference is a sword that cuts both ways.

Chevron U.S.A., Inc. v Natural Resources Defense Council, Inc. (1984) granted administrative agencies broad deference in creating regulations based on administrative interpretations of laws, effectively granting executive branch agencies broad lawmaking powers. Chevron Deference grants administrative agencies deference in interpreting the underlying statute they are writing regulations around while Auer Deference ( Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)) grants them deference in deciding what the regulations they wrote actually mean. For more on the Chevron Doctrine, see a related piece Why stop with Chevron? Four Supreme Court doctrines that should be discarded.

Harlow v Fitzgerald 457 U.S. 800 (1982). the Civil Rights Act of 1871 included a provision (now known as 42 U.S. Code Section 1983) saying: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, of the District of Columbia, subjects or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit, or equity, or other proper proceeding for redress.”

In other words, people whose rights were violated by police or other government officials could sue them in federal court.

Despite this rather clear legislative intent, the Supreme Court took it upon themselves to invent a defense known as “qualified immunity, ” in Pierson v. Ray (1967) and to greatly expand it in Harlow v. Fitzgerald (1982). Shortly thereafter, the Court birthed the concept of “absolute immunity” in Imbler v. Pachtman (1976), primarily applied to prosecutors. Connick v Thompson arguably falls under this disreputable umbrella as well. For more on qualified and absolute immunity, see a related piece Why stop with Chevron? Four Supreme Court doctrines that should be discarded.

Morrison v. Olson 487 U.S. 654 (1988) declared the Independent Counsel Act was in fact constitutional and not a total mockery of separation of powers. The Act was allowed to expire eleven years later after having been used as carte blanche to pummel and pester Democratic and Republican Administrations alike. By this time, there was widespread acknowledgement that Justice Scalia might have been on to something when he authored a blistering dissent to the 8:1 decision.

Minersville School District v. Gobitis 310 U.S. 586 (1940) The Court ruled that public schools could compel students—in this case, Jehovah’s Witnesses—to salute the American Flag and recite the Pledge of Allegiance despite the students’ religious objections. SCOTUS overruled this decision three years later in West Virginia State Board of Education v. Barnette. Gobitis was a truly a horrible decision but had limited long term impact (and to be callous, fairly narrow short term impact as well.)

Bush v. Gore, 531 U.S. 98 (2000) halted the Florida recount in the disputed 2000 presidential election… and was widely perceived as a partisan, premature and ultimately ill-conceived intrusion into electoral politics. The decision itself was less important than the Court’s recklessness in interceding.

Decisions that were Actually Correct but Nonetheless Get a Bum Rap

In the interest of completeness, we also want to include several decisions that have become partisan whipping boys, but were nonetheless decided correctly.

“Kelo v City of New London (2005) In Kelo, SCOTUS ruled that taking land from one private party to give it to another private party is a valid public use under the Takings Clause. The Takings Clause, the last clause of the Fifth Amendment, requires that “just compensation” be paid if private property is taken for public use.

The City of New London had condemned Suzette Kelo’s little pink house so that a private developer could build an office park that would ostensibly generate increased tax revenue.

Kelo captured people’s attention because it was relate-able; this was somebody’s home being given to private developers for a flimsy public benefit.

There is little doubt that forcing Suzanne Kelo from her home was wrong in the sense that it offends our sensibilities. The image of the New London City Council using its condemnation power to transfer land from an unwilling seller to greedy private developers in return for the potential of additional tax dollars strikes us as corrupt, even if it is not technically so.

On the other hand, If Suzette Kelo is paid fair market price for her property, is there really a constitutional issue involved? There are far more egregious land use decisions – Lucas comes to mind – where the court has affirmed the government’s right to destroy (almost all) of the value of property without compensation, i.e. you can own the lot, but you can’t build anything on it. The property owner is denied virtually all the economic value of the property, yet neither condemnation nor compensation take place. (Lucas was a mixed bag. The Court correctly decided Lucas was entitled to compensation based on a total taking, but left the door open for states to impose anything short of a total taking without compensation.)

In Kelo, the issue wasn’t ‘just compensation,’ it was what constituted ‘public use.’ Many people, (the author included) are hesitant to include economic development within ‘public use.’ Defining public use so broadly empowers often corrupt or misguided bureaucrats and their actions tend to have a disproportionate impact on lower income communities.

Still, before diving down the rat-hole of attempting to define what is and isn’t public use under the Constitution, we need to identify an end game. Constitutional issues should present bright lines – a framework where something is clearly constitutional or it is not. Otherwise we end up with obscenity jurisprudence – Justice Potter Stewart’s ‘I can’t define pornography but i know it when I see it,’ which is arguably more obscene from the bench than the material it seeks to categorize.

In the case of what constitutes public use, where does one draw the line? Would an involuntary condemnation have been acceptable for a hospital? A sports stadium? A pipeline? A privately owned turnpike? In each instance, there is a credible argument on either side of the question. And as long as the property owner is justly compensated, the benefit of trying to parse ‘public use’ may be dwarfed by the cost.

In the end, the Justices likely ruled correctly. Kelo is evidence that not every wrong is unconstitutional and that just because something is constitutional doesn’t mean it is good public policy.

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) SCOTUS held (5–4) that the First Amendment prohibits the government from restricting independent expenditures for communications by corporations, labor unions, and other associations. Citizens United, a conservative leaning organization, had sought to air and advertise a film critical of Hillary Clinton shortly before the 2008 Democratic primary.

The Court ruled that First Amendment protects associations of individuals, e.g. corporations or unions, in addition to individual speakers, and further that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. The Court had already acknowledged in Buckley v. Valeo that spending money was essential to disseminating speech, so it followed that limiting a corporation’s ability to spend money was unconstitutional because it limited the ability of its members to associate effectively and to speak on political issues.

Imposing limits on campaign contributions may be nobly-intentioned or may represent brazenly self-serving attempts by incumbents to hobble challengers. Such limits may be beneficial or they may be misguided. Nevertheless, similar justifications for limiting free speech ‘in the public interest’ have been put forth since the Alien and Sedition Acts. When discussing Citizens United, it is hard to improve on what Justice Kennedy wrote for the majority, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”