What’s the worst still-current Supreme Court decision?

When John McCain made the extremely ill-advised comment that Boumediene v. Bush was “one of the worst decisions in the history of this country,” bloggers showed up in force to illustrate the statement’s ridiculousness. Writers at a number of blog (and other) sites began to list other decisions that are clearly worse than Boumediene, no matter one’s political views. (I personally don’t think Boumediene is a bad decision; but even if it were, it wouldn’t pass these.) The lowest-hanging fruit here are Dred Scott v Sanford, Plessy v. Ferguson, and Korematsu v. United States. There are several other easy fish in this barrel, like Buck v. Bell and Chae Chan Ping. This isn’t difficult. Also, these decisions have since been repudiated or abandoned by the court.

(Sort of. Korematsu has never been formally overruled. However, the decision’s results have been sufficiently undermined — through Fred Korematsu’s coram nobis action; legislative apology and reparations; Fred Korematsu’s Presidential Medal of Freedom; and overwhelming criticism from all quarters — that it is essentially a dead letter today.)

(Chae Chan Ping has also never been overruled in some regards, but the most obviously invidious portions of it — upholding the Chinese Exclusion Act — have been rendered obsolete by the legislature. Today, Chae Chan Ping does not stand for the same things it stood for in 1889. But, see below.)

Paul Gowder recently asked an interesting follow-up question: “What’s the most destructive Supreme Court case that’s still good law?”


Obviously, for a significant set of the population, the answer would be Roe v. Wade (or Casey; or Griswold). For a mostly different set, the answer would be Bush v. Gore.

Beyond those, which cases might qualify?

Paul suggests Buckley v. Valeo and Wisconsin v. Yoder, both of which seem reasonably open to criticism. Other possibilities include, I think, the whole gamut of affirmative action cases: Bakke, Adarand, the Michigan cases, Seattle/Louisville — it’s easy to find something to hate, no matter what your views on affirmative action. There’s Kelo, for takings fans. (Or any number of other takings cases: Nolan/Dollan, Lucas, even Mahon. Takings law is sufficiently messy that you’re bound to hate at least one of them, maybe more.) There’s Lemon v. Kurtzmann, if you’re Justice Scalia (or otherwise not a fan of late-night horror movies).

(Is that really in the same league as affirmative action, takings, and so on? The harm of a bad Establishment Clause case is that someone does or doesn’t get to show their crèche at Christmas. That just doesn’t seem to rise to the same level as racial discrimination in employment, or eviction from one’s property, or other harms. The same applies in areas like the punitive damages cases. Even if you think Amchem or Ortiz v. Fibreboard is really bad, it ultimately boils down to whether plaintiffs and plaintiffs attorneys get a big check. It’s hard to call that the most-horrible-ever, I think.)

So yes, there are a number of potential worthy candidates (much of the list depending on one’s particular substantive views).

However, I’d probably go with . . . Chae Chan Ping. Yes, the most obviously invidious portions of it have been effectively rendered obsolete — the Chinese Exclusion Act no longer exists. But Chae Chan Ping (and other follow ups like Fong Yue Ting) established the plenary power doctrine in immigration. That doctrine has operated to give Congress the ability to limit immigrants’ rights almost entirely free from judicial oversight — it’s been carte blanche to deprive immigrants of rights for over a century. And on that point, it’s still good law. (Though, post-Zadvydas and St Cyr, plenary power may not be quite what it used to be.)

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8 Responses

  1. Paul Gowder says:

    Oh, I hadn’t even thought of that one … it’s certainly a contender, just for sheer scale of human suffering.

  2. MW says:

    Didn’t McCain say “one of” and not “the worst” ? I don’t see how listing decisions that are worse than Boumediene nullifies his statement or makes it ridiculous.

  3. Chae Chan Ping Rocks says:

    Why should immigrants have rights? They’re immigrants.

  4. A.W. says:

    There is nothing ridiculous about McCain’s statement. if he said it was the worst, that would be wrong in most people’s eyes? but “one of the worst?” Yeah, you are not crazy to think that. And in fact i agree.

    I would nominate Kennedy v. LA however for the worst opinion this term, although the positive thing is that it makes it clear that Justice Kennedy is not about law: he is about his personal whims. Its not good that this is our reality, but at least we know, now.

  5. RoeOrBush says:

    Well Roe v. Wade created a horrible split across the country that still plagues politics without much Constitutional authority.

    And Bush v. Gore was iffy on a lot of counts but it has never been cited and does not seem to be precedential.

    So I’d probably vote for Roe. Considering it’s supported by 60+% of the country, the amount of legal and popular criticism is pretty telling. Even Justices who vote to uphold it often think it should rest on different grounds than Due Process (see Ginsburg who thinks it should be on gender Equal Protection grounds).

    And the sweeping nature of Roe has stifled all hopes of compromise on the issue and led to proxy fights across the 50 states.

    If Roe hadn’t happened, we’d probably have legal abortion in 45-50 states for 90-95% of current abortions, but without the devisive disenfranchisement of half of the country.

  6. Stephen R. Kaplan says:

    Flemming v. Nestor, upholding the forfeiture of Social Security benefits of persons deported for Communist Party membership, stands on a bad eminence.

  7. TRE says:

    Marbury v Madison because it is responsible for all the bad ones!

  8. Gary L. Zerman says:

    Bradley v. Fisher, 80 US 335 (1872). Unconstitutional judicial power grab where judges gave themselves ABSOLUTE judicial immunity – including corrupt & malicious acts; see Justice Davis’ dissent. Bradley cites NO constitutional authority/basis, violates the doctrine of separation of powers (where was the legislature? the executive branch?) and Justice Field overturned his own Brigham v. Randall, 74 US 523 (1868), which HAD excepted corrupt & malicious acts just 4 years earlier. Bradley (and Brigham) inverted the sovereignty of WE THE PEOPLE and elevated the gov’t over, above & beyond the People, making the servant the master, the master the servant. For more judicial supremacy see: Pierson v. Ray, 386 US 547 (1967), making judges immune from liability under civil rights Title 42, section 1983, but read the much more persuasive lone dissent by Justice Douglas that totally debunks the contorted self protecting majority and the canard that immunity is required for judicial independence; and Stump v. Sparkman, 435 US 349 (1979), (a redo of Buck v. Bell) where the Court condoned the eugenics practiced by Judge Stump – the antithesis of a judge, but read the underlying Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977), a 3/0 decision where the court was repulsed by Stump and denied him immunity.