When the Supreme Court handed down its historic decision in Bush v. Gore
on the evening of December 12, 2000, the criticism was swift, wide-ranging, and devastating. Within hours, a chorus of lawyers, judges, legal scholars, and pundits had dubbed the case one of the worst-if not the
worst-Supreme Court opinions ever. Such bold declarations sparked an energetic debate in courtrooms, newsrooms, and living rooms. Was Bush v. Gore
really the worst decision of all time? If not, what was?
One year later, as the anniversary of the infamous presidential election decision approaches, JD Jungle invited two of the country's leading legal thinkers-Akhil Amar and Edward Lazarus-to wrestle with those questions. Specifically, we asked them to name the worst Supreme Court decisions in history-and to show their reasoning.
The result? The Supreme Court anticanon.
Amar, the Southmayd professor of law at Yale University Law School, and Lazarus, a former law clerk for Justice Harry Blackmun and the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court
, are known not just for their extensive knowledge of the nation's highest court but also for their unvarnished candor about it.
Their discussion is much more than a simple "worst of" rant. It is a quick-stop tour of the past two centuries of Supreme Court thinking. It reveals how the Court works best by examining the times when it fails worst. It casts the Rehnquist Court in a new-and not very flattering-light. And it lays out a set of criteria for spotting bad Supreme Court decisions
in the future. Perhaps most important, it reminds us that the Court, for all our lofty talk about "the noble justices" and "the highest court in the land," can be decidedly earthbound in its thinking.
Let's start with Bush v. Gore
. It has some of the leading indicators of a really bad decision. For example, the opinion provides absolutely no intellectual justification for the result-that's especially significant since the decision determined a presidential election. Also, hypocrisy. Ask this question: Would these justices have reached the same result if it had led to the other candidate winning? Most people would say the answer is no.
There are other qualities that elevate this decision to the anticanon. Would the Court itself follow its own precepts in the next case? The Court, in fact, announces in advance that it will not.
Or, in their words: "Our consideration is limited to the present circumstances because the problem of equal protection in election processes generally presents many complexities."
Here's another test: Does this decision rise above partisan political alignment on the key issue-the way, say, Brown v. Board of Education
did, when the Court achieved unanimity? No, it does not.
When a majority of the justices come together across ideological lines, that typically minimizes the negative impact of a tough decision. That didn't happen here.
These are all forms of judicial arrogance that I think can be summarized by an overused term: activism. You hear that term a lot.
People throw it around basically to attack any decision they don't like.
There are different dimensions of activism. One involves the Court's exerting too much power over a democratically accountable body. Bush v. Gore
qualifies because it snatched the power to decide the election away from not only the Florida courts but also the Florida legislature and Congress. There is also disrespect of prior state law, notwithstanding all of this Court's rhetoric about federalism and states' rights. A second kind of activism involves the Constitution-are you really following the rules laid down in the document? The Constitution says that when you have a presidential election with possible irregularities, the judge is supposed to be Congress. So Bush v. Gore
is activist along this dimension, too. A third dimension of activism involves precedent. Are you acting in an incremental, evolutionary fashion, with regard to previous cases decided on similar facts? No prior case comes close to what the Court said and did in Bush v. Gore
If an opinion qualifies as activist according to those three criteria, the chances are that's bad activism as opposed to good activism-which, we should say, does exist. There are times when Congress oversteps and needs to be checked by the courts.
Contrast the Rehnquist Court's activism with the Warren Court's activism. The Warren Court, which sat from 1953 to 1969, almost never overruled acts of Congress, especially not civil rights laws. The Rehnquist Court does this all the time. The Warren Court tended to invalidate the actions of an individual police officer, a town department, a school board, a county commission, or a state legislature. But it rarely struck down acts of Congress. And when it did invalidate democratically enacted laws, it often did so in the name of democracy-when a state legislature was unfairly apportioned, for instance. Or it did so because of the clear commands of the Constitution, by, say, applying the principles of free speech or equality against the states. The fact is, the Warren Court gets a bum rap for activism.
That's why I think Roe v. Wade
-the 1973 abortion rights decision-deserves to be in the anticanon. Roe
is an activist decision in many of the worst respects: It had no textual foundation in the Constitution itself, it struck down many state statutes, and it created new law.
And it implicitly said that Congress can't pass abortion laws, either.
That's where the Warren Court derives much of its reputation for bad activism. We view the Warren Court through the prism of Roe
, and it undermines the validity of its good activism.
Here is how Roe
could have avoided being in the anticanon: A narrower ruling would have held that Texas had antiabortion laws that severely restricted women's bodies and their liberty. The Texas law was passed in the nineteenth century, a time when women didn't even have the vote. So it should be set aside, and if women today want this law, the legislature should readopt it in a new election where women actually are going to make up half the electorate. That would have been a kind of remand, a recommitment back to a democratic process.
Here's a link between Roe v. Wade
and Bush v. Gore
that's another criterion for a bad decision-a big leap into a whole new area of law. In Roe
, Justice Blackmun was originally heading down a path toward a very modest decision-striking down the statute on the grounds that it didn't provide appropriate notice to those women who would be charged under it. Justices William Brennan and Thurgood Marshall waged an internal campaign to get Blackmun to throw out his original draft and go with the much more far-reaching approach that became the Roe opinion we all know-an absolutely sweeping quasi-legislative opinion basically delineating all abortion regulation in the future.
And that decision came out of the blue. The relevant cases that preceded Roe
, such as Griswold v. Connecticut
, were strictly about contraception. Justice Blackmun explicitly says that cases like Griswold
are "inherently different" from abortion because you don't have the embryo, the fetus, the life in being, to deal with. And so the issue in Roe
really is-in an important legal and moral and philosophical way-profoundly different. The Court itself admits the difference, and yet it leaps forward with an intricate code of federal abortion regulation governing all 50 states and Congress. The Court did not proceed in a narrow incremental fashion.
Let's jump back in time to another candidate for the list: Dred Scott
, the case that declared all blacks nonpersons. One of the internal quirks of Dred
is that it, too, was initially going to be decided on relatively narrow jurisdictional grounds. Not that there are any good grounds for justifying slavery, but at least it would not have reached the larger questions of the constitutionality of the Missouri Compromise and the issue of slavery in the western territories. This is where the kind of activism we're talking about can be dangerous. Dred
nullified the Missouri Compromise, so the idea that slavery might wither as the country expanded west was set aside, since Dred
permitted-indeed, required-the expansion of slavery into the territories. The decision rewrote large sections of law that ultimately helped start the Civil War.
is also on the list for its reprehensible language. Chief Justice Roger Taney said blacks could not be citizens even if free because they were "beings of an inferior order and altogether unfit to associate with the white race" with "no right which the white man was bound to respect."
We also have to consider Bowers v. Hardwick
, the 1986 case featuring a concurrence by Chief Justice Warren Burger that upheld both a Georgia statute criminalizing sodomy and the prosecution of a gay man.
Again, the language was reprehensible.
Chief Justice Burger felt compelled to remind us that William Blackstone, in his Commentaries on the Laws of England
[a work used to adapt English common law to America], "described 'the infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature,' and 'a crime not fit to be named.' " In case you were wondering.
We've talked about judicial arrogance as a criterion for the anticanon. But there is also the reverse side-judicial timidity. I have a favorite example from American Indian law: Lone Wolf v. Hitchcock
. It was a 1903 case in which the Court basically said that Congress can do anything it wants to with an Indian tribe, including steal its land, and we are not going to second-guess it. This is excessive deference to Congress.
Meekness is a terrific category. I have a candidate that goes all the way back to the country's founding. In 1798, Congress passed the Sedition Act, making it a federal crime to criticize the federal government, members of Congress, and the president. And Supreme Court justices, riding circuit, upheld the statute in cases like United States v. Callender
, and vigorously enforced it against those whose only crime was disagreement with the incumbent presidential administration.
Then there are the Civil Rights Cases of 1883, where the Court says that private discrimination is not covered by the Fourteenth Amendment-which put the phrase equal protection
into the Constitution-at all. That particular meekness put into play a scheme of oppression that wouldn't be questioned until Martin Luther King Jr.
There's a grand theme emerging: The Supreme Court for 200 years has, in general, tended to overprotect the rich and powerful and underprotect the weak and poor. It has tended to overprotect property and underprotect equality. So in the eighteenth century, if you criticize the president, you go to jail. On the other hand, laws granting debtors relief were exuberantly struck down by the Court in cases such as Fletcher v. Peck
and Chisholm v. Georgia
. In the civil rights cases, the Court won't use the Fourteenth Amendment to protect against racial inequality, but it later uses that same amendment to protect big corporations and powerful employers against small fry in cases like Coppage v. Kansas
and Adair v. U.S.
The same problem runs all the way up to Bush v. Gore
, where the Court somehow discovers an equal-protection problem in Florida while refusing to cope with a fundamental inequality in our voting system-an undercount that really hurt poor and black districts.
Many of the Rehnquist Court decisions are restricting the power of the federal government to enforce the Fourteenth Amendment in the same way some of the Reconstruction-era cases did. Which is why I think the Boerne case is one you might put on the list.