The U.S. Supreme Court. (AP Photo)

An attorney named Casey C. Sullivan has published an article in “FindLaw – Supreme Court” an online website that addresses an audience of lawyers, legal scholars and other legal experts. Mr. Sullivan’s October 14, 2015 article is entitled “13 Worst Supreme Court Decisions of All Time.” Unfortunately, it betrays a very strong ideological bias. The article would be more accurately entitled “A Liberal Lawyer’s List of the 13 Worst Supreme Court Decisions of All Time.”

While biased and flawed, the article reminded readers that there have been some major blunders made by the Supreme Court of the United States (SCOTUS). While our federal judiciary functions quite well, generally, and one ought not to over-emphasize the mistakes made by the federal courts, it is prudent and appropriate to remember that there have been some major judicial blunders from time to time.

There are some cases which most lawyers, regardless of political or ideological leaning, would put on a list of the “worst SCOTUS decisions.” Thus, many attorneys would agree that Dred Scott v. Sandford, which held that African Americans could not become citizens of the United States, and which invalidated the Missouri Comprise, was a disastrous decision. That is a no-brainer: any Supreme Court decision which triggers a Civil War that leaves over 600,000 Americans dead on battlefields was not a good Supreme Court ruling!

Likewise, Plessy v. Ferguson, which upheld racial segregation and delayed realization of the promise of the Civil War Amendments (13th, 14th, and 15th Amendments) for decades deserves to be included on the list of the worst rulings. Another decision which is a part of the legacy of racism in the Court and in the nation is Korematsu v. United States, in which the Supreme Court upheld the involuntary internment of Japanese Americans during World War II.

Also included with no objection was Lochner v. New York, which reinvigorated the judicial interpretive practice called “substantive due process” (SDP) in which judges simply exercise their power to substitute their own policy preferences for those enacted by a legislature. The economic variety of SDP is now uniformly discredited and repudiated. However, social substantive due process remains alive and well in the liberal wing of the current Court as those Justices continue to read the Constitution as protecting social policies that they prefer and to compel substitution by the Court of its preferred values and policies for those adopted by politically-accountable elected legislators.

Interestingly, and inconsistently, Mr. Sullivan included both Lucas v. South Carolina Coastal Commission and Kelo v. City of New London. In Lucas the Supreme Court held that a land use law preventing the owner of beachfront lots from building homes on those lots amounted to a “taking” of that property which required the state to pay the owners for the loss of property value resulting from the restriction against building. However, in Kelo the court ruled that it was a valid exercise of “takings” power for a city to condemn (take) a private owner’s land and transfer the land to a private developer for inclusion in a comprehensive redevelopment plan.

The liberal bias of Mr. Sullivan is evident in his inclusion of Bush v. Gore, the 2000 election-year decision in which the Court halted a partisan Florida state agency recount of some ballots designed to steal the election from George W. Bush and deliver it Al Gore. As unpopular as Mr. Bush’s presidency is in some quarters, there is little doubt that neither electoral integrity nor the public interest would have been advanced by turning a blind-eye to the illegitimate, back-room political chicanery that was underway in the sleazy Florida “recount.” In Bush v. Gore, the Court acted responsibly to preserve the rule of law in our presidential election process.

The list by Mr. Sullivan is note-worthy for the stunning omission of two of the most outrageous exercise of illegitimate judicial activism. The first is Roe v. Wade, the 1973 decision that struck down the traditional Texas laws prohibiting elective abortion and permitting only therapeutic abortion (in cases of medical necessity – e.g., to save the life or health of the mother). Roe and its companion case of Doe v. Georgia had the effect of invalidating ALL abortion laws in ALL states, and of legalizing abortion-on-demand throughout the United States. The Roe doctrine of abortion privacy gave the United States the most permissive, abortion-friendly public health regulation of abortion in the world, led to a spike in non-therapeutic abortion, and constitutionalized in its new “abortion privacy” doctrine the age-old male abandonment of responsibility that isolated women (saying “you take care of it; it’s your private problem”). Roe produced a line of over forty major Supreme Court decisions about (mostly protecting) elective abortion since 1973.

Since this list was compiled less than four months after the Supreme Court decision in Obergefell v. Hodges, the failure to include that ruling on the list of the worst decisions is inexplicable – apart from personal bias. Obergefell is at least the worst Supreme Court decision in forty-two years (since Roe), and it may be the worst decision in nearly 150 years (since Dred Scott). In Obergefell the Supreme Court (by 5-4 vote) required all states to legalize same-sex marriage. Before Obergefell only eleven states had legalized same-sex marriage by legitimate processes reflecting the will of the people (by legislation by elected legislators or by popular referendum). In thirty-nine states, the marriage laws allowed only male-female marriage. In thirty-one states, voters had even adopted amendments to their state constitutions defining marriage as only the union of one man and one woman (to prohibit same-sex marriage).

With no justification in the text or history of the Constitution or any of its amendments, the Court in Obergefell judicially amended the U.S. Constitution to mandate legalization of same-sex marriage in all states, despite the fact that voters in nearly two-thirds of the states (two-thirds is the consensus required to approve an amendment to the Constitution) had approved amendments to prohibit same-sex marriage. Obergefell made a mockery of constitutional principles judicial self-restraint and of respect for popular sovereignty. Obergefell made a mockery of the institution of marriage and demeaned the value of the essential contributions of both genders to that institution. In Obergefell the Court disgracefully substituted the partisan policy preference of five justices for the constitutionally-mandated substance (that marriage is a matter left to the states to regulate) and procedure (that amendments to the Constitution – such as to mandate the legalization of same-sex marriage – must be approved by two-thirds of the states).

Mr. Sullivan’s article, while biased by his personal political preferences, is a good reminder that the Supreme Court has stumbled from time to time and has committed some very serious blunders. It is a reminder that, at bottom, our constitutional system of government depends upon the voluntary submission to the unenforceable, not only by ordinary citizens’ obedience to unpopular laws, but by the officers of our government (including our federal judges) respect for the rule of law and to constitutional procedures and principles. We are not a nation of blindly-obedient, but of responsibly-obedient citizens who have the responsibility – and the right – to criticize our government, including our federal judges, when we believe that they are not acting in accordance with constitutional procedures and standards or in the public interest. Such criticism is one of the protections to preserve our liberties and our constitutional republic. Mr. Sullivan deserves thanks for reminding us of that.

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University. He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.