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The Five Worst Supreme Court Decisions

David W. Kirkpatrick, an educational reformer, recently listed what, in his opinion, are the three worst United States Supreme Court decisions in our nation’s history: Dred Scott (1857), Plessy v. Ferguson (1896), and Everson v. Board of Education (1947). I agree with Kirpatrick’s judgment and would add two more. The five are arranged chronologically rather than in degree of controversy and tragedy.

Dred Scott v. Sanford, decided by a majority of the justices who were southerners and proslavery northerners, helped precipitate the Civil War by declaring that slaves were not citizens and that the Missouri Compromise was unconstitutional. This was the first instance in which the Court invalidated a major piece of federal legislation, and it has been called “the most frequently overturned decision in history.” Newly inaugurated President James Buchanan supported the decision and was rumored to have pressured the Court in the direction it took. In 1857, therefore, it seemed clear to Republicans especially that southerners and their allies were intent on retaining and spreading the institution of slavery indefinitely and that meaningful compromise was impossible. (See the masterful study by Don E. Fehrenbacher.)

In Plessy v. Ferguson, the Supreme Court followed a train of judicial decisions in the Gilded Age that nullified efforts to end racial discrimination and bring blacks into the mainstream of American life. In 1896, the Court ruled that segregation was legal as long as facilities of equal quality were available. Almost total segregation dominated the South, a system of apartheid that would remain in force until the 1960s. Most northerners, nourished intellectually by cruel stereotypes and Social Darwinism, also supported the Plessy decision. African-Americans all across the country remained victims of blatant discrimination for decades. It is to the Supreme Court’s credit, of course, that in 1954, in Brown v. Board of Education, it took the lead in restoring equality and opportunity by reversing the Plessy decision.

In Everson, the Supreme Court, on a 5-4 vote, ruled that any government aid or benefit to religion was unconstitutional. (The case involved the costs of transportation to and from private schools, and some of these schools were parochial.) The majority cited a letter by Thomas Jefferson in which he called for a “wall of separation between church and state.” The personal letter was not written until 14 years after the adoption of the United States Constitution and held no legal weight. In short, it was a flimsy pretext for overturning generations of cooperation between government and the nation’s churches, stigmatizing the religious faith of the vast majority as something unworthy of any sort of federal and state government support. Not since the failed effort to pass the anti-Catholic Blaine Amendment in 1875 had government made such an assault on religious institutions. Everson led to controversial Court decisions of the 1960s that prohibited the recitation of prayers in public schools and forbade the reading of Scripture in a public school’s commencement exercises. In 1971, in Lemon v. Kurtzman, the Court ruled that a given law, to retain the religious neutrality required by the Establishment Clause, must have a secular purpose, must have a primarily secular effect, and must not excessively entangle government with religion. Public anger over these cases contributed to the growth of the Religious Right.

The fourth case is Roe v. Wade (1973). This decision, reflecting the power of the feminist movement of the time, declared for the first time that abortion on demand was a fundamental constitutional right. This overturned the laws of two-thirds of the states, which had outlawed abortion except to save the life of the mother. Today, more than 47 million unborn children (look at that number a second time) have been killed. Beyond the loss of life and the mental and emotional toll on the parents involved, the issue has contributed significantly to the deterioration of public morals that is the focus of the Right in the Culture War.

Number five is Kelo v. City of New London (2005), in which the Court altered the common sense interpretation of the Fifth Amendment’s protection of property to rule that local governments may force property owners to sell in order to make way for private economic development. Justice Sandra Day O’Connor, dissenting in the 5-4 decision, declared that the “specter of condemnation hangs over all property.” Justice John Paul Stevens, who voted for the majority, wrote, “Nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.” And so 18 states have passed laws protecting property rights, and more such legislation will appear elsewhere. The Oklahoma Supreme Court ruled in May, 2006 against the use of eminent domain for private development. Support for the Kelo decision remains almost exclusively among developers and local politicians.

Thus can nine unelected lawyers, full of themselves and acting with authority never dreamed of by the Founding Fathers, shape history. If term limits are badly needed for Congress, what about the Supreme Court?

Posted on Monday, August 21, 2006 at 9:23 AM | Comments (1) | Return

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