The first 15 years of this century have not been the best in the history of the United States Supreme Court.
There have been several horrible decisions in the history of the court. Plessy v. Ferguson, decided in 1896, is one of the worst decisions because it upheld the constitutionality of racial segregation laws for public facilities; this decision legitimized many state laws re-establishing racial segregation that had been passed in the American South after the end of the Civil War Reconstruction era.
Of course, Dred Scott v. Sanford, handed down by the Court three years before the Civil War began, may be the worst. In that decision, it was held that African-Americans, whether free or slaves, could not be considered American citizens.
The decision of Buck v. Bell was not one of the court’s better moments as it upheld the forced sterilization of those with intellectual disabilities “for the protection and health of the state.”
Korematsu v. United States, decided near the end of World War II upheld the involuntary internment of Japanese-American citizens finding that the need to protect against espionage outweighed the individual rights of American citizens. It is akin to trying to kill mosquitoes with a sledgehammer.
The Civil Rights Cases struck down the Civil Rights Act of 1875, a law that banned racial discrimination in businesses and public accommodations. It took 80 years for the Court to reverse course allowing for the government protection of civil rights.
Three of my “favorite” bad decisions occurred more recently. It began with Bush v. Gore, which allowed George Bush to be ascend to the presidency in 2000.
Florida was in the midst of a vote recount following the Presidential election – remember the hanging chad. In a 5-4 decision along party lines, the court halted the recount of contested ballots in Florida. It was a per curiam decision, which meant that no one claimed authorship of the opinion. Sandra Day O’Connor, who voted with the majority, has since stated her regret for that decision. She said in 2013 that the court should probably not have heard the case. She was not one of the four justices who voted to hear the case, but she was one of the five who voted to stop the recount. We don’t know how the recount would have ended, but the Supreme Court interfered with the local authorities who decided to do the recount.
The decision was unprecedented and widely viewed as a political decision in direct opposition to the political question doctrine which refers to the idea that an issue is so politically charged that federal courts are viewed as the apolitical branch of government and should not hear the issue.
Perhaps the worst decision in the past 100 years is Citizens United v. Federal Election Commission. The court held that political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. It has opened the floodgates of political contributions.
Justice Stevens, writing the dissent, argued that the Court had long recognized that to deny Congress the power to safeguard against the improper use of money to influence the result of an election is to deny the nation the power of self-protection. Dark money is the practice of making unlimited contributions to non-profit corporations from corporations, individuals and unions and to spend money to influence elections without disclosing the identity of donors.
Dark money has influenced countless elections in recent years. Only a constitutional amendment will restore order to the election process. Most of the political ads being run in the media currently are funded by dark money. I hope you ignore all of them.
The third more recent bad decision is McDonnell v. United States. The former governor of Virginia and his wife received $175,000 in gifts and loans from a wealthy businessman. McDonnell was charged with violating a federal bribery law in exchange for helping the businessman with his dietary supplement company. The Supreme Court held that the federal bribery statute’s definition of “official act” under the bribery law does not include arranging a meeting, contacting another public official or hosting an event with the presence of something more. Traditionally, quid pro quo laws prohibit exchange of gifts or other consideration for specific political acts. Thus, politicians can receive gifts as long as it is not in exchange for a specific vote. In the last election cycle, there was discussion about “draining the swamp.” The McDonnell decision just made the swamp much deeper.
There are many other bad decisions of the court. Many decisions are result oriented, which means that the court decides what they want the outcome to be and then rationalize the result with legal reasoning. The old expression, the ends justify the means, applies in this situation.
Many others suggest that the legal precedent should guide the court in reaching a decision unless the legal precedent is flawed or outdated. The only thing that could make it worse is if we started electing judges. If you think the swamp is full of swamp monsters now, they will multiply if we elect judges.
– Bob Buckley is an attorney in Independence, www.wagblaw.com. Email him at firstname.lastname@example.org