The Worst Supreme Court Opinion Ever?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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14 Responses

  1. Brett Bellmore says:

    Given that the Constitution lays out a formal means for amendment, it seems to me that your second and third options are indistinguishable. The “tantamount to an amendment” being the same as an amendment except for the little matter of not being a freaking amendment.

  2. Josh Blackman says:

    Would this case have come out differently after Ex Parte Young (decided 5 years later in 1908)? It seems this case was dismissed, in part, based on Hans v. Louisiana. Couldn’t plaintiff have sued a state official for prospective injunctive relief? That would obviate, I think, the need for the Courts to totally supervise over state elections.

  3. Sherish Yousef says:

    It’s strange that this all just happened only a little over a hundred years ago. How far we’ve come as a society. Now we can look forward to even the most absurd of trials without anyone blinking an eye:

  4. Howard Wasserman says:

    I have not read Giles, but I don’t see Ex Parte Young making a difference. The language Gerard cites from Holmes goes to the efficacy of injunctive relief in protecting rights going forward. That would be true whether the “party” to the case was the state or a state official. The point is that the injunction was not going to change behavior on the ground. And even the threat of contempt on one individual would not change that.

  5. Joe says:

    “Or third, you might say that Holmes was recognizing that Bryan’s defeat was tantamount to an amendment of the Constitution that modified the Fifteenth Amendment.”

    Because the Supreme Court would have done something different in the early 1890s? The “defeat” of the 14th and 15th amendments seemed to be in place before 1896, including when the so-called “force bill” failed.

  6. Gerard Magliocca says:

    Most definitely not Joe, though you’d have to read the book to see why. (That’s a pretty good marketing ploy, no?)

  7. TJ says:

    Why can’t you read it as both a very realistic statement, and a cowardly one at the same time? The mother of a coward does not weep.

    I do query your use of “legal realism” to describe it, however. Legal realism to me still operates within the framework of “law,” it just says that law is rather manipulable. But Holmes here is not saying that the law is manipulable in the traditional sense of judges playing with doctrine, he is saying that the law is a paper parchment that is ineffective. It is nihilistic, not realistic, in its approach to law.

  8. Joe says:

    I will look for the book but just read another recent one about that era and the Supreme Court seemed long gone on this issue before the election of ’96. Shall see.

  9. Larry Rosenthal says:

    I teach Giles as part of a seminar I occasionally offer. The question I ask my students, and I now pose to Professor Magliocca, is what do you suppose would have happened had Giles come out the other way? Would that have led to the massive enfranchisement of African-Americans in the south? Or something else?

    Larry Rosenthal
    Chapman University School of Law

  10. Gerard Magliocca says:

    I think at that point it was too late to reverse the suffrage restrictions because there was no political constituency that would support the Court. An opinion going the other way in Giles would have been a weaker version of Worcester v. Georgia (which ended up being unsuccessful but did have a good chance of prevailing because the Whig Party backed it in 1832). If Giles had come out in, say, 1899, and given a strong defense of the Fifteenth Amendment, that might have led some states to draw back from imposing voting restrictions. By 1903, though, that work was done and not easy to undo.

    Of course, you could say that the Court should not let remedial consequences effect their determination of the legal merits. “Fiat justitia, ruat caelum.” But I doubt that I have anything new to contribute to that debate. Furthermore, you could say that an opinion cannot be “the worst ever” unless it leads to a different outcome on the ground. I think that’s a pretty strong argument.

  11. Larry Rosenthal says:

    One might even argue that by avoiding a premature effort to undue Jim Crow at a time during which the North had little appetite for a renewed effort at reconstructing the south, Holmes’s opinion in Giles helped to preserve the Court as a credible arbiter on matters of race until public opinion had advanced to the point that a jurisprudence attacking the system of Jim Crow had a reasonable chance of finding support from the political branches — and the assistance of those brances, of course, proved essential in vindicating the rights of African Americans.

    Larry Rosenthal
    Chapman University School of Law

  12. Gerard Magliocca says:


    I think that gives Holmes too much credit, but then again I’m not a fan of his jurisprudence generally.

  13. Pam Karlan says:

    After the Supreme Court had rfused really to enforce the Fifteenth Amendment in cases like U.S.v. Cruikshank (where the federal government actually prosecuted whites who had massacred blacks attempting to vote — see Chuck Lane’s recent book, The Day Freedom Died) and had essentially ratified Mississippi’s disenfranchising convention in Williams v. Mississippi, it’s disingenuous for the Court to claim that the Amendment is uneforceable. The Court in some ways *made* the amendment unenforceable, and Giles was only the end of a long road. For a classic discussion of the Court’s responsibility for gutting the Fifteenth Amendment, see Armand Derfner’s classic article le, Racial Discrimination and the Right To Vote, 26 Vand. L. Rev. 577 (1973). We also have N extensive discussion of Giles and it’s aftermath in our casebook, The Law Of Democracy: Legal Structure of the PoliticL Process. Much of it is based on Rick Pildes’s Domcracy, Anti-Democracy, and the Canon in 17 Constitutional Commentary,

  14. I nominate Bradwell v. State of Illinois.