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Worst US Supreme Court Decisions

Introduction

The US Supreme Court is one of the most respected institutions in the United States. Despite having no authority to spend money or enforce its will, the country does what the Court orders. The Supreme Court is effectively the referee among the other branches of government. The Court's power rests on its moral authority, which causes the other branches of government and the people of the country to follow its direction. That moral authority in turn depends on the logic of the Court's decisions, as well as the Justices' sense of when and how far to push their fellow citizens. Usually, the Court does an excellent job of deciding cases (i.e. its decisions) based on logic, brain power and precedent. The Justices are almost always well-learned in the Law, knowledgeable about legal precedent, and persuasive writers. However, no institution is perfect, not even the Supreme Court. Here are some of the worst decisions the Court has handed down.

Bush v. Gore

Background

The 2000 United States Presidential election was one of the closest ever. Republican George Bush and Democrat Al Gore were the major party candidates. The choice came down to which candidate won the State of Florida. Florida's results were extremely close. In addition, a significant number of ballots were ambiguous, containing multiply punched choices or incompletely punched choices. The latter often had "hanging chads". Another complication, not directly relevant here, was the large number of voters in southern Florida who misunderstood a complicated ballot and mistakenly voted for third party candidate Pat Buchanan instead of Al Gore.

After Bush came out ahead when the ballots were counted, Gore requested a recount of ballots from a few counties where he believed that he had the most to gain, especially if the authorities took a closer look at the ambiguous ballots. Though Florida Secretary of State Katherine Harris denied his initial request, the Florida Supreme Court ordered a recount of four counties on November 26. Bush appealed to the US Supreme Court. The US Court, on December 4, sent the case back to the Florida Court for some clarifications. On appeal of a lower Florida court decision, the Florida Supreme Court then ordered, by a 4-3 margin (foreshadowing the US Court's travails?), a statewide recount on December 8. The US Court of Appeals for the Eleventh Circuit declined to intervene. Bush appealed to the US Supreme Court. The US Court stayed the recount on December 9.

The Court's Decision

The US Supreme Court reversed the Florida Supreme Court. The full text of the decision is at Cornell Law School, Bush v. Gore . Five Justices signed the opinion. They were Justices Scalia, Rehnquist, O'Connor, Kennedy and Thomas. The Court's opinion was per curiam, meaning issued on behalf of the court, and not attributed to a specific Justice or Justices as author. Courts usually use per curiam opinions for non-controversial or routine matters, often where the decision is unanimous. This was hardly the situation in Bush v. Gore. Presumably, none of the Justices who agreed to it was willing to put his or her name on this particular piece of garbage.

Discussion

The Court invented a new civil right in Bush v. Gore, namely the right to have your election ballot counted using equal procedures, at least some of the time. The opinion explains that "the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another". Under the 14th Amendment, states are required to provide equal rights to people, and thus the differing standards are unconstitutional. The opinion acknowldeges the important aspct of the looming deadline, set by Florida law, to finish counting the ballots and certify the results by December 12, saying "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees." Going on, the opinion says "When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." Given the close deadline and the difficulties of recounting ballots using common procedures, the Court reversed the "judgment of the Supreme Court of Florida ordering a recount to proceed".

Somehow, the Court found that people were being denied a civil right and, as remedy, took rights away from other people. Instead of enforcing that right by ordering that the recount be extended to these deprived people, namely the ones whose ballots were not being counted, the Court said that no one could have their ballot recounted. This is as if, in Brown v. Board of Education, instead of prohibiting segregation in public schools, the Court had ordered that white students be given an inferior education. See Brown v. Board of Education at FindLaw for the text of the Brown case. The Court could instead have ordered the deadline extended, especially since, as Justice Ginsburg said in her dissent, "Time is short in part because of the Court’s entry of a stay on December 9, several hours after an able circuit judge in Leon County had begun to superintend the recount process." Extending statutory deadlines is a common remedy throughout the country when people are still waiting on line to vote at the time the polls are supposed to close. Actually, the December 12 deadline was not all that critical anyway, since Congress was not to actually count electoral votes until January 6. The Court could have told the Florida Supreme Court to provide equal rights to people and left it to that Court to decide how. The majority passed on both of those options.

The per curiam opinion tries hard to limit its applicability to other cases or its use as a precedent. The opinion says "The recount process... is inconsistent with the minimum procedures ... in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances". This language is judge-speak meaning that Bush v. Gore should not be used as precedent for other cases. The limit is meaningless, though, since the opinion never explains why the circumstances should so be limited. Future judges are free to use Bush v. Gore as precedent, unless constrained by their own sense of the illogic of this per curian opinion. We all know why the majority did not want the case used as precedent. It is horrible law, and they were embarassed to be involved with it. And the Republican justices would not want their decision used as a precedent for some other judge to rule that some minority voters had been denied equal protection, say by being harassed by police on their way to vote, as actually happened in 2000 in Florida, which might help a Democrat out. But judges cannot go off and declare that their decisions cannot be used as precedent. The basis for judicial decision-making is its use of precedent. Judges look to past cases to guide their decisions. This provides continmuity and consistency in the law. It allows people to have a basis for knowing how courts will rule.

Another factor the Court ignored was that it probably did not have jurisdiction. In other words, it did not have the right to even decide the case. The case involved how the state of Florida conducted its election. The proper forum for the decision was the Florida Supreme Court. What on earth was the US Supreme Court doing directing the state of Florida to enforce its own deadline? As Justice Ginsburg said in her dissent, "The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts’ interpretations of their state’s own law." The Federal government can of course be involved in the election. After all, the election was for US President. The US Constitution even provides the means to resolve these controversies. Article II and the 12th Amendment assign to Congress the responsibility to receive and count electoral votes. As Justice Breyer points out in his dissent, Federal law, such as the "Electoral Count Act, enacted after the close 1876 Hayes-Tilden Presidential election" gives Congress the authority to resolve disputes over the Electoral College. See the relevant section of the Federal statute at Section 15. - Counting electoral votes in Congress. The point is, Congress should resolve the matter, not the Supreme Court.

The stay of the recount that the US Supreme Court issued on December 8 was in and of itself a terrible decision, too. Courts are only supposed to issue stays of lower court decisions in exceptional circumstances. Requirements for such a stay include that the applicant is likely to prevail in the appeal and will suffer "irreparable harm" without a stay. Usually, if these requirements are met, courts then consider whether that irreparable harm exceeds any harm that the stay would do to the other party, taking into account the likelihood each party has of winning. "Irreparable", here, is meant literally. The applicant must be at risk of not just harm, but harm that cannot be repaired. The stay cited irreparable harm to Bush if the recount were to cast doubt on the election he claimed. However, Bush had not (yet?) been declared the winner. (Or had he in the minds of the five Justices?) The stay itself did irreparable harm to Gore.

In sum, the US Supreme Court

  1. invented a new civil right, to have one's ballot counted the same way as other people,
  2. enforced the new right by taking rights away from people whose ballots had not been counted,
  3. claimed that Florida had to meet a deadline that it was not at all required to meet
  4. stated that the Florida Supreme Court had erred by ordering a procedure which could not be completed by that non-existent deadline, when the US Supreme Court's own stay played a significant role in preventing the State from being able to finish its recount by that deadline,
  5. and announced that the decision was not to be used as a precedent

The charitable view for why the five Justices ruled in this senseless manner in Bush v. Gore is that they had an instinctive sense that the Florida Supreme Court was trying to steal the election for Gore. The Justices therefore would do whatever was necessary to prevent this. See The Supreme Court, Bush V. Gore, And Rough Justice, by William P. Marshall for a good analysis of this theory. Alas, such an attempt to excuse the five Justices' conduct is almost as nonsensical as the opinion itself. Reasons why include the following:

  1. The Florida Supreme Court was not trying to steal the election. As David A. Strauss says in his essay The Vote: Bush, Gore, and the Supreme Court, "before the election results were certified, the Florida Supreme Court rejected Vice President Gore’s effort to require Miami Dade County to resume the recount it had started, the[n] stopped. ... Later, the ... Court ... affirmed ... decisions from Seminole and Martin Counties [where] Republican Party officials were shown to have engaged in clearly improper conduct in the handling of absentee ballots. ... Finally, ... Court refused to intervene when Vice President Gore complained that the trial judge ... was proceeding too slowly ... This was a self-defeating thing for the Florida Supreme Court to do, if it simply wanted to ensure the Vice President’s election."
  2. Even if the state Court was trying to steal the election, the US Supreme Court should not have resorted to such sloppy judging to counteract the state Court. The "cure" was as bad as the supposed problem.
  3. If anyone was stealing the election, it was Bush. Given the confusion with Buchanan referred to above, more voters in Florida intended to vote for Gore than for Bush.
  4. The correct forum for protecting against state shenanigans in Presidential elections is Congress.
  5. The US Supreme Court had a simple and less drastic remedy available. It could have ordered that Florida recount all ballots or conduct recounts in all counties.
  6. To hand down such a controversial decision, the Supreme Court needed to act unanimously or at least be close to unanimity. A couple of examples are the Court's decisions against President Nixon in United States v. Nixon over Watergate, which can be found at Nixon decision at FindLaw, and Brown v. Board of Education, which can be found at Brown decision at FindLaw. The Nixon case was decided unanimously, but 8-0 rather than 9-0. Justice Rehnquist recused himself because Nixon had appointed him. When the Court decided Roe v. Wade, about as controversial a decision as it has ever handed down, its vote was 7-2.
  7. If the US Supreme Court really decided Bush v. Gore just to prevent some sort of travesty by the evil Florida Supreme Court and resorted to its ridiculous arguments as its means of doing whatever was necessary to save the country, then at least one of the Justices needed to take the next step. At least one of them had to resign, to metaphorically fall on their sword. That would have signaled the country that the Justices knew they were out of bounds and had taken the step out of sheer necessity. It would also have gone a long way to invalidating the dangerous precedent that they established.

Lose the excuses. Bush v. Gore was decided by a partisan, political group of Republican Supreme Court Justices who concocted a poorly reasoned opinion to assure that the Republican candidate, Bush, won the 2000 Presidential election. The Code Of Conduct For United States Judges states that "A judge... should not be swayed by partisan interests". The Code also says "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which a) the judge has a personal bias or prejudice concerning a party". Here are some of the personal biases:

  • Justice Antonin Scalia’s sons worked as lawyers at two of the law firms hired by Bush’s campaign to work on the Bush v. Gore appeal.
  • Justice Clarence Thomas was appointed to the Supreme Court by Bush's father. Contrast this with Rehnquist recusing himself from United States v. Nixon.
  • Justice Thomas’ wife was accepting applications by individuals interested in landing positions in a Bush White House.
  • Newsweek magazine reported on December 25, 2000 that Justice Sandra Day O'Connor had exclaimed "This is terrible" upon seeing that the networks were awarding Florida to Gore on Election Day evening. Her husband explained that they were hoping to retire, but would only do so if a Republican would get to appoint her successor.

One almost feels sorry for the majority, who will have to explain their opinion to their grandchildren. The rest of us, who do not need to be embarassed in front of our descendants, should be asking our representatives in Congress to impeach the Justices who decided Bush v. Gore. The US Constitution, in Article III, Section I, says "judges are to serve during good behavior". Deciding a case for which their Court lacked jurisdiction using faulty reasoning for partisan political purposes is not "good behavior". Therefore, we should impeach and remove these Justices.

Most third party writings on Bush v. Gore consider that the majority opinion was wrong. An exception is The Unbearable Rightness of Bush v. Gore. A good book on the 2000 election and its legal controversies is The Unfinished Election of 2000, edited by Jack N. Rakove.

Slaughter House Cases

Background

After the Union won the Civil War, the nation adopted the 14th Amendment to the Constitution. This is the so-called "equal protection" amendment. The Amendment's pupose was to force Southern states to treat their newly freed slaves equally. The U.S. even required that ex-Confederate states adopt the Amendment in order to regain their full rights as states.

Nevertheless, after the ex-Confederate States were re-admitted as full members of the country, many reverted to prior habit and mistreated their black citizens.

The Slaughter-House Cases, decided in 1873, is about a Louisiana law that established a monopoly over slaughter houses. Some butchers challenged the law. Among their claims was that the law denied equal protection, thus contravening the 14th Amendment.

The Court's Decision

The Supreme Court, in a decision written by Justice Samuel Miller, ruled that the law did not violate the 14th Amendment. The decision said that the 14th Amendment distinguishes between a citizen of the U.S. and a citizen of a particular state. Someone can be the former without being the latter. The 14th Amendment only forbids states from abridging rights of a citizen of the U.S. Such rights only include "fundamental" rights, such as protection against ex post facto laws and bills of attainder. Other rights, such as property rights, pertain to citizens of the state. Thus, the 14th Amendment is inapplicable to the case.

The majority opinion, a rather long and wandering essay, babbles about the distinction between rights of citizens of all the States (the nation) and citizens of an individual State. The 14th Amendment says "no State shall abridge the privileges or immunities of citizens of the United States". The opinion says that the 14th therefore does not prohibit actions by a State that limit the rights of its own citizens. Since the Constitution is fairly limited in what it grants to US citizens (habeas corpus, navigate the rivers, etc.), therefore equal protection in terms of education, property, or riding on trains is up to the States, not the federal government. This is utter nonsense. Somehow, the decision takes an extra few words -- citizens "and of the State" into a reason to say that the Amendment does not restrict actions by States against its own citizens. This far-fetched reasoning was the Court's way of bowing to what it perceived (unfortunately, probably correctly) as the political will of the country at the time. Come on! -- why else was the Amendment passed? Its purpose was precisely to restrict states from discriminating against their black citizens.

The harm from the Slaughter-House Cases was not really about a Louisiana monopoly. Even today we would not use the 14th Amendment to decide such a case. Rather, we would use the Constitution's interstate commerce clause and federal antitrust law. If they did not apply, we would probably defer to Louisiana law, Louisiana's own Constitution, and the state's courts. The lasting problem that emerged from the Slaughter-House Cases was that courts used it as a precedent to deny the 14th Amendment's protection even in true cases of racism. If anyone ever wonders why lawyers work so hard to maneuver the Supreme Court into deciding certain cases, or at times to not decide certain cases, and to establish precedents, this litle case sure shows why precedents matter.

Plessy v. Ferguson

Background

Plessy v. Ferguson, decided in 1896, is perhaps the second most famous (or infamous) Supreme Court decision against civil rights. Dred Scott v. Sandford, which stated that slavery was legal in US territories, is the most (in)famous. The case stems from post-Civil War legislation by Louisiana requiring "equal but separate accommodations" for black and white railroad pasengers. Homer Plessy was jailed for sitting in a white-only railroad car. He challenged the law in court (the Judge on the case was named Ferguson, thus the name of the case) and lost, appealed to the Louisiana Supreme Court and lost again, and then appealed to the US Supreme Court.

The Court's Decision

Justice Billings Brown wrote the majority opinion for Plessy v. Ferguson. The Court ruled that the Louisiana law was legal and therefore sustained the Louisiana court's ruling. The US Supreme Court's decision said that requiring segregated facilities does not imply that one of the separated races is inferior. Since the 14th Amendment requires equality and the Louisiana law does not imply inferiority, the law is constitutional. The opinion explicitly mentions that the "most common instance of this [namely separate accommodations] is... separate schools for white and colored children".

Discussion

Plessy established the doctrine of "separate but equal", which stood for 58 years, until overridden by the famous Brown v. Board of Education decision. Justice Brown's opinion draws on the Slaughter-House Cases as precedent, showing the real danger of letting bad precedents be established, even for relatively inconsequential cases. They can later be used in cases that have great impact.

It is interesting that Justice Brown's opinion indicates that the Louisiana law could not have been legally applied to a train traveling between states, since it would then interfere with the federal government's authority over interstate commerce.

Turner Broadcast System, Inc. et al v. Federal Communications Commission et al

Background

Congress passed the Cable Television Consumer Protection and Competition Act of 1992 (US Code, Title 47, Chapter 5, Subchapter V-A, Part II) to further regulate cable TV operators. One of its key provisions, in Sections 534 and 535, required cable operators to transmit the signals of local broadcasters, in order to prevent the cable operators from having too much power over the local stations. The term "must-carry" describes these rules. The text of Section 534 is also available on Cornell's Web site.

Five cable operators challenged the law. The Federal Communications Commission (FCC) was involved in the case due to its regulatory authority over cable and broadcast television. The United States District Court for the District of Columbia rejected the challenge, deciding in favor of the FCC that the law was valid. The District Court's decision was a summary judgement, meaning that the District Court considered it unnecessary to have a trial to examine the facts. The cable operators appealed.

The Court's Decision

Justice Anthony Kennedy wrote the majority opinion for the Court. See text of Turner for the full decision. His opinion held that the facts were material and needed to be examined. The Supreme Court returned the case to the District Court to determine if the potential economic harm to local broadcasters justified the provisions of the law.

Discussion

This case, as decided, hinges on the 1st Amendment. Kennedy's decision says "Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the... First Amendment". This assertion draws on the Leathers v. Medlock case, decided in 1991, in which the Court said "Cable television... is engaged in 'speech' under the First Amendment". The Supreme Court has taken over the past few decades to applying various standards of scrutiny on some laws that could potentially violate the Constitution. Justice Kennedy said in his opinion that laws regulating local television broadcasters get "less rigorous" scrutiny, since "scarcity of broadcast frequencies" and the danger of signal interference gives the government reason to regulate. On the other hand, since the law's "must-carry provisions... unrelated to content", they are "are subject to an intermediate level of scrutiny". The rules are unrelated to content "because they distinguish... based only upon the manner in which speakers transmit their messages to viewers, not the messages they carry". Instead, they get a medium level of scrutiny. The Supreme Court decision in effect told the District Court to examine the facts, apply that medium level of scrutiny, and determine if the burden imposed upon cable operators by the law was justified by the purpose that Congress was trying to meet with the law.

Kennedy relied on, among others, United States v. O'Brien as precedent. O'Brien was a 1st Amendment case concerning war protesters.

Here is the problem. Turner is not a real 1st Amendment case. As the opinion itself says, the law did not address "the messages". In other words, the law does not regulate what someone can say. The law merely required cable operators, who are inevitably monopolies, to carry whatever messages or content that a specific and limited set of other companies produce. As such, it was analogous to a law that makes, say, truckers carry all newspapers or magazines published in a city. Further, the cable operators were regulated monopolies. Suppose an air freight company had a monopoly, regulated by, say, the FAA, in a city. Could not Congress require that company, under the FAA's authority and based on the Interstate Commerce clause, to handle any publications produced in that city? Cable operators are not like booksellers, as Justice O'Connor claims in her dissent. Clearly, a law that told bookstores what books to sell would violate the 1st Amendment. However, booksellers do not have an inherent monopoly and they can pick from an almost unlimited choice of books to sell, which forces them to choose which "messages" to carry.

The Leathers precedent that the decision referred to should not have been used. In Leathers, the Court ruled against the cable companies and only noted peripherally that they are engaged in a 1st Amendment activity, without considering the difference between producing content or messages, and transmitting or transporting that content. The outcome of the case did not depend on whether the activity was covered by the 1st Amendment. Thus, the note about being 1st Amendment activity is considered "dictum". See Useful Legal Terms (search on the page for "dictum") for a definition of dictum. The proper precedents that should have been used are those that concern commerce, not the 1st Amendment. Furthermore, the Leathers statement is actually wrong.

So here we have a Supreme Court which has shown little interest in protecting civil rights suddenly invoking the 1st Amendment where it does not even apply. The effect is not to protect people's rights, but to protect big business, in the form of monopolist cable operators. The Court used the 1st Amendment to prevent the American people from requiring cable television monopolies, which use facilities, in the form of wires under public streets, granted to them by towns, to transmit television signals over a portion of their bandwidth.

The Court's decision wound up having little effect and, so far at least, doing no harm. The District Court, directed to re-try the case, did so. It found that the law was constitutional, that local broadcasters faced significant economic harm, and against the cable operators. The Cable operators again appealed to the Supreme Court. The Supreme Court then upheld the District Court's ruling in Turner Broadcasting System, Inc., et al., Appellants v. Federal Communications Commission et al., decided in 1997.

Note again the danger of carelessly established precedents. The Turner opinion made use of a throwaway line, which was only dictum, in the Leathers decision. Turner was a bad decision and is bad case law. It should not have used the dictum in Leathers. But still, the Court should not have made the statement about cable television being engaged in speech in Leathers.

Last Update:23 April 2006

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