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.)