The Worst Supreme Court Decisions, Ever! (How Many Are Current?)

Most Americans know virtually nothing about American history. That is particularly true as it relates to the United States Supreme Court. 

Yet, in juxtaposition to these indisputable facts, in our current, hyper-charged political environment the Supreme Court (which James Madison called “the least dangerous branch”) has come under increased public scrutiny. Not for the first time in the country’s history there are cries to “pack” the Court. Beyond that, Senators now publicly threaten individual Justices on the steps of the Supreme Court; one crazed individual even went to one of the Justice’s homes recently with a gun, intending to assassinate him.  As Don Corleone once said (in the “Godfather”): “How did things ever get this far?!”

An Historical Overview 

John Marshall, who served as Chief Justice from 1801 to 1835, long ago declared: “It is emphatically the province and duty of the judiciary to say what the law is.” He also warned: “We must never forget that it is a constitution we are expounding…intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” Charles Evans Hughes, who became Chief Justice in 1930, was more blunt in 1907 when he stated: “We are under a Constitution, but the Constitution is what the judges say it is.”

In carrying out its duties, the Court has often changed its mind and overruled prior precedents. As Woodrow Wilson wrote, the Court sits as “a kind of Constitutional Convention in continuous session.” But in doing so, the Supreme Court Justices have frequently stirred controversy throughout the country’s history. Before he became a Justice, Robert Jackson observed:

“[The] Court has repeatedly overruled and thwarted both the Congress and the Executive. It has been in angry collision with the most dynamic and popular Presidents in our history. Jefferson retaliated with impeachment….Jackson denied [the Court’s] authority; Abraham Lincoln disobeyed a writ of the Chief Justice;…Wilson tried to liberalize its membership; and Franklin D. Roosevelt proposed to ‘reorganize’ it.”

The foregoing conflicts are explored in detail in my book “The Worst Supreme Court Decisions, Ever!”; and in those conflicts (and beyond) the Court has frequently made many consequential mistakes. Those mistakes include: declaring that African-Americans are not and can never be citizens of the United States (Dred Scott); holding that racial segregation is legal and constitutional (Plessey v. Ferguson); ruling that citizens of the colonies of the United States (e.g., Hawaii, Puerto Rico, the Phillippines, etc.) are not entitled to constitutional rights and protections (the Insular Cases); finding that it is constitutional to hold 120,000 Americans in concentration camps during war (Korematsu); declaring that laws enacted to protect the health and economic well-being of American citizens violate the due process clause of the Constitution (Lochner; Adkins); ruling that the government is entitled to sterilize a woman based upon false evidence that she was feebly minded (Buck v. Bell); finding that a right to marital privacy exists, not from any specific constitutional provision, but rather from “penumbras” “emanating” from a variety of the Bill of Rights (Griswold v. Connecticut); and invalidating virtually all of the country’s legal contracts, threatening the entire stability of the nation’s economy (the Gold Clause Cases).

What About Now?

According to many in the “mainstream” media, we are currently in the midst of an existential constitutional crisis, with the Executive branch out of control, and the Supreme Court on the verge of sanctioning national ruin. Not so.

To the extent the current administration’s efforts relate to the country’s legal structure, they essentially fall unto three buckets. The first relates to initiatives that prior administrations (e.g., Obama, Biden) have also used – e.g., the expansive use of executive orders, the use of “emergency powers” based upon ambiguous provisions in various congressional statutes, pausing discretionary spending, using the Civil Reform Act of 1978 to effect changes in federal agencies, etc. The second relates to attempting to gut federal agencies created by legislation; these efforts have been pursued in a blunderbuss manner (likely caused by less than stellar lawyer work) and are currently the focus of extensive litigation challenges — we will ultimately see who wins and who loses. And the third relates to potential/likely constitutional challenge(s) – as to two of the most prominent, I hazard predictions: as to whether the president can fire the head of the office of special counsel, the Supreme Court may well reconsider the 1935 decision Humphrey’s Executor (holding that the Federal Trade Commission was a quasi-legislative body and the president therefor lacked constitutional authority to remove an FTC Commissioner); as to changing the current understanding of birthright citizenship under the 14th Amendment, I see virtually no chance that the Court will touch that with a ten foot pole.

Overlying all foregoing is a misunderstanding of Chief Justice Roberts’s jurisprudence. Roberts, who once famously said his job was to call “balls and strikes,” is principally focused on having the Court restore the traditional balance of power between the three branches of government. Thus, with the “major question” doctrine (e.g., West Virginia v. EPA: federal agencies cannot issue new regulations that have major economic or policy consequences without demonstrating express authority from Congress) and the overturning of the Chevron doctrine (Loper Bright Enterprises v. Raimondo: ending the practice of deferring to federal agencies’ interpretations of ambiguous federal laws – Chief Justice Roberts: the judiciary has the sole perogative to “say what the law is.”), for example, the Roberts Court is trying to hold Congress more responsible for national policy (with less authority in the hands of un-elected bureaucrats in various federal agencies). That effort, in my judgment, should be applauded, not shouted down as threatening the national polity.

For a deeper look the historical and contemporary impact of these decisions, read The Worst Supreme Court Decisions, Ever!

Written by C. Evan Stewart.
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