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Top 10 worst Supreme Court decisions
The United States Supreme Court is our country’s ultimate defender of tyranny
By Jake Highton
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This article was published on 03.08.12.
Stop! in the name of law. PHOTO ILLUSTRATIONS BY PRISCILLA GARCIA|
|Jake Highton teaches at the University of Nevada, Reno journalism school.
The 10 Worst Decisions Ever
The worst decision the Supreme Court ever made was Dred Scott in 1857, upholding the obnoxious Fugitive Slave Act. The language of Chief Justice Roger B. Taney was atrocious coming from anyone—let alone a member of the Supreme Court. It was beyond racism, totally devoid of humanity.
Blacks were “an inferior order and altogether unfit to associate with the white race,” Taney wrote. “They had no rights that the white man was bound to respect.” Moreover: “The Negro might justly and lawfully be reduced to slavery for his own benefit.” They were not citizens and could not claim the “rights and privileges” of citizenship even if their masters took them to free states.
In the second worst ruling, the Supreme Court in 2000 declared G.W. Bush president although Al Gore got 543,895 more votes. Just five people out of 280 million Americans engineered the coup. The court stopped the vote count in Florida, in defiance of their usual deference to states’ rights, and gave Bush the Electoral College victory.
Vincent Bugliosi in The Nation wrote angrily that the court “committed one of the biggest and most serious crimes that the nation has ever seen—pure and simple theft of the presidency.” The Felonious Five stole the election under the color of law.
Justices are adept at making up reasons to support their predilections. But in this case, the sophistry was incredible. The five, all Republicans, rendered a totally partisan decision. It gave no rationale, no analysis. It did not cite a single case or precedent. It suppressed the facts. The unsigned opinion was convoluted and opaque. Then, like the thieves they were, the unjust justices vanished shamefully into the night.
In the third worse decision, Citizens United (2010), the court reaffirmed earlier declarations that money is speech.
Democracy had already been corrupted with legalized bribery in the form of campaign contributions. But with Citizens United, the New York Times exploded: “The Supreme Court has thrust politics back to the Robber Baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s majority has paved the way for corporations to use their vast treasuries to win elections.”
Historian Howard Zinn put the matter in perspective: “No one can stop us from getting on a soapbox and speaking. We might reach 100 people that way. But if we were Proctor and Gamble, which makes the soapbox, we could buy prime time for TV commercials and buy full-page ads in newspapers, reaching several million. How much freedom we have depends on how much money we have.”
In the fourth worse ruling, Plessy v. Ferguson (1896), the court upheld Southern apartheid, declaring separate black and white facilities constitutional. Justice Harlan I dissented, calling the Constitution color-blind. It took 58 years for the Supreme Court to declare Harlan right.
The fifth worse decision was Santa Clara County v. Southern Pacific Railroad (1886). The court declared that corporations were people and entitled to constitutional rights even though the preamble of the Constitution starts with “we the people.”
The sixth worst ruling, Lochner v. New York (1905), reversed a legislative limit of a 10-hour work day and 60-hour work week for bakers. Justice Rufus Peckham, writing for a 5-4 majority, outrageously declared that such statutes “limiting the hours in which grown and intelligent men may labor to earn their living are mere meddlesome interference with the rights of the individual.”
Justice Harlan I dissented, rightly complaining that employer and employee are not on equal footing. Bosses have the upper hand. Always have. Always will.
In another Lochner dissent, Holmes pointed out: “This case is decided on an economic theory that a large part of the country does not entertain. The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” (Spencer was a Social Darwinist.)
In the seventh worst ruling, the Supreme Court in 2000 upheld the right of Big Tobacco to advertise cigarettes, a product that kills 500,000 Americans yearly. Corporate freedom and the merchants of death prevailed over the health of Americans.
Cigarettes are a drug. Federal Judge Jerome Frank, dissenting in a 1941 case, wrote: “Such men as Paine, Milton and Jefferson were not fighting for the right to peddle commercial advertising.” True. But the Supreme Court is often blind to truth.
PHOTO ILLUSTRATIONS BY PRISCILLA GARCIA|
In the eighth worst decision, the Supreme Court in 1895 struck down a congressional income tax law. The vote was 5-4, five wealthy justices killing it as a scholar’s chart demonstrated.
In the ninth worse ruling, the court in Schenck (1919) ruled that harmless leaflets were a “clear and present danger” to national security under the 1917 Espionage Act. The absurdity was manifest. Yet ever since the court nearly always has taken the side of so-called national security.
Indeed, the Obama administration, far from being receptive to whistle-blowers as it promised in 2008, is still using the bogus Espionage Act to prosecute and persecute leakers like Pfc. Bradley Manning.
The U.S. government detests leakers because they reveal embarrassing truths. That’s why federal prosecutors have drawn up a sealed indictment—secret charges—against Julian Assange, WikiLeaks founder.
David Carr, media critic of the New York Times, calls the Espionage Act an “ad hoc Official Secrets Act, which is not a law that has ever found traction in America. The people’s right to know is viewed as superceding the government’s right to hide its business.”
In the 10th worse decision, Adkins v. Children’s Hospital (1923), the court invalidated a minimum wage for women workers in the District of Columbia. Justice George Sutherland, one of the Four Horseman of Reaction writing for the majority, said it was “simply and exclusively a price-fixing law.” In dissent, Chief Justice William Taft pointed out that employees “are particularly subject to the overreaching of the harsh and greedy employer.”
The rankings are debatable. Selecting the 10 worst decisions out of thousands of Supreme Court rulings in history is difficult. As Justice John Harlan II remarked in an obscenity case: “One man’s vulgarity is another’s lyric.”
But there is no question of the pro-business bias and horrible rulings—and non-rulings—of the court historically.
The court steadfastly refused to enforce constitutional amendments—13, 14 and 15—and allowed Jim Crow to continue in the South 125 years after the Civil War. (The 13th freed the slaves, the 14th made them citizens and the 15th entitled them to vote.)
From 1880 to 1937, historian Henry Steele Commager noted, “the political field was strewn with the corpses of social welfare laws struck down by judicial weapons.” The court overturned minimum-wage laws, workers’ compensation statutes, utility regulations and child labor laws.
The justices in those cases raised anguished cries of “freedom of contract!” They demanded a “halt to the march of communism!” In the early 1930s, the Four Horsemen of Reaction repealed the Roosevelt New Deal.
“The business of America is business,” President Coolidge boasted. Unfortunately, the “Supremes” so often have agreed.
Justice Samuel Miller, Iowan who served from 1862 to 1890, summed up the problem of having the Supreme Court bulging with lawyers:
“It is vain to contend with judges who have been, at the bar, the advocates of railroad companies and all the forms of associated capital when they are called on to decide cases where such issues are in contest. All their training, all their feelings, are from the start in favor of those who need no such influence.”
And that is precisely why Earl Warren was the greatest chief justice. He put people over property, human needs over the money-making demands of capitalism. Chief Justice John Marshall (1801-1835) put property over people. (He said that slaves were mere property.) Warren defied the conservative image of far too many attorneys.