The Five Worst Supreme Court Decisions of the Past Fifty Years

JB

David Savage of the L.A. Times asked me to list the worst Supreme Court decisions of the past fifty years-- dating back to 1958. It's hard to say what makes a decision bad. It could be an incorrect reading of precedent, a mangling of history, or a failure to exercise judgment and understand the long-term consequences of a decision. In any case, here is a list of five decisions that I think, for various reasons, are the worst of the past half-century, and why I think they were bad.





1. Clinton v. Jones (1997). Clinton v. Jones held that sitting Presidents may not delay civil litigation directed against them during their term in office. Clinton v. Jones badly misjudged how a president's political opponents could use the civil justice system to create scandals and bog down a presidency, thus effectively hijacking most of Clinton's second term. I am pretty certain that if the Justices had a do-over, Clinton v. Jones would have come out the other way.



2. Bowers v. Hardwick (1986). Bowers held that states could imprison homosexuals for having sex with their partners and it facilitated many different forms of discrimination against gays and lesbians. It is one of the worst civil rights decisions since Plessy v. Ferguson (1896), which gave the Supreme Court's blessing to Jim Crow.



3. Bush v. Gore (2000). Bush v. Gore was a self-inflicted wound that made the Court appear overtly partisan. It compounded this problem by suggesting that the new rule it announced would probably never apply to any future case. By intervening in an election dispute that would have been resolved by Congress without its help, the Court made itself partially responsible for the debacle of the last eight years.



4. San Antonio Independent School District v. Rodriguez (1973). This decision is not well known but had important long term effects. It held that education is not a fundamental right and effectively announced the end of constitutional protections for the poor. It shifted the focus of constitutional reform of public education from class and race to just race, which proved to be a dead end. Moreover, it helped divorce the question of racial integration from issues of school quality and equal educational opportunity, which, along with shifting demographics and housing patterns, made racial integration increasingly irrelevant to the problems of inner city schools. The next year, the Supreme Court decided Miliken v. Bradley (1974), which relieved suburban school districts of most of their obligations to work with inner city school districts to integrate schools and share burdens. Together, Rodriguez and Miliken made Brown v. Board of Education practically irrelevant, with the result that our public schools today are once again heavily segregated by race. If any two cases can be said to have "overruled" Brown in practice, it would be the deadly duo of Rodriguez and Milliken.



5. United States v. Miller (1976). Another little known decision with important ramifications, Miller held that when a person reveals information about themselves to a third party, they waive all their Fourth Amendment rights to privacy. This decision makes the Fourth Amendment increasingly irrelevant in an information age where people must share personal information-- including health and financial data-- with others all the time. As the Internet has made privacy a central civil liberties concern, Miller made the Constitution's central guarantee of privacy largely ineffective in the digital age.



No doubt one could extend the list. Obviously, your list of worst decisions will depend heavily on your views about constitutional interpretation as well as your politics. People who oppose abortion rights would certainly list Roe v. Wade and Casey v. Planned Parenthood as among the worst decisions of all time, much less the past 50 years. Probably Kelo v. New London will top many people's lists, although I think that whether Kelo is correct or not, it prove to have fewer bad consequences than many people have feared, largely because public pressure will lead state and local governments to impose new limits on takings practices.



Sometimes it is difficult to know how bad a decision is until many years later. There are many cases that, when they originally came down, I thought were very bad indeed. However, years later, even though the reasoning remains bad, the Court effectively distinguished or confined them, or their bad effects were limited. Chou En Lai once said of the French Revolution that it is too soon to tell whether it was a success. The same can be said, in reverse, for whether a Supreme Court decision is a disaster.



If I wanted to make a list solely of bad interpretations of the Constitution of the past fifty years, the list would be much longer. Here I limit myself to bad interpretations that also had pernicious consequences-- where the Supreme Court not only made really bad constitutional arguments but was willfully blind to the consequences of what it was doing.



Bowers v. Hardwick is a little different: I had little doubt when it was decided in 1986 that eventually the case would be reversed or made irrelevant by legislation, although during the 17 years it was on the books it had very bad consequences for gays and lesbians. But Bowers seemed remarkably homophobic-- the Court went out of its way to rewrite the Georgia statute so that it concerned only homosexuals so that it could avoid addressing the rather embarrassing fact that the statute banned sexual conduct by gays and straights alike. And the opinion was such a slap in the face to gays-- at one point Justice White labels their claims facetious-- that I thought it was really unworthy of the Court, and therefore belongs in the class of worst decisions.



As you will see from my list, some of these are cases where the Court intervened when it should have stayed out, and some are cases where the Court left an issue up the political process where it should not (Kelo, by the way, falls in that category, if you think it is one of the worst.). The idea of good or bad judging is really orthogonal to the hackneyed debates over judicial activism and judicial restraint. If a constitutional right should be protected, courts shouldn't refuse to protect it.



Feel free to give your own list of the worst decisions of the past 50 years (from 1958 onward) in the comments.











