Stop! in the name of law.
PHOTO ILLUSTRATIONS BY PRISCILLA GARCIA

 Source: newsreview.com

The problem with the Supreme Court is that the justices are lawyers.

No, that is not a joke from a late night TV show. It’s a searing truth.

Lawyers are legalistic rather than humanistic. They are narrow-minded rather than broad-minded. They “follow the law” of yesteryear rather than meet the problems of today.

They favor corporations rather than consumers and the working class. They tend to be conservative personally and pragmatically. You don’t get ahead in the legal fraternity by being a radical.

Most federal judges are rich. In two terms, President Reagan appointed 279 U.S. judges. The majority each had a net worth of $400,000. One fifth of them were millionaires. Such judges are unlikely to see things from the perspective of ordinary folks.

Most justices have been mediocrities. President Washington named 10 justices, “a thoroughly undistinguished lot,” Peter Irons writes in A People’s History of the Supreme Court.

President Truman named three former Senate buddies who were out of their depth on the court. President Kennedy, a so-called liberal, appointed a conservative to the court because he was his Colorado campaign manager.

Many court members had just one qualification: They were corporate power attorneys.

Yet such people decide the law of the land. As Chief Justice Charles E. Hughes knew so well: “The Constitution is what the judges say it is.” Often what the justices “say it is” has been bad.

The justices were still “nine old men” even after Justice Sandra Day O’Connor became the first woman on the court in 1981. As the great socialist leader Eugene Debs pointed out, a member of the working class has never been on the federal bench let alone on the august Supreme Court.

The Supreme Court’s best justice, Louis Brandeis, was called the “people’s lawyer” before joining the top court in 1916 where he became the “people’s justice.”

But most justices have been retrograde. They retarded progress rather than stretched the legal frontiers. The corporations have the money; working people do not. Lawyers go where the money is.

Chief Justice John Roberts is a former corporate lawyer in Washington who made $1 million a year. So it was natural the Roberts Court became a Corporate Court.

In the 2009-2010 term, it took the side of the U.S. Chamber of Commerce in 13 out of 16 cases, including the infamous Citizens United decision which declared money speech and corporations people. (The New Yorker had a wonderful cartoon about Citizen United. Paraphrasing Merchant of Venice, a lawyer pleads before the justices: “If you prick a corporation, does it not bleed? If you tickle it, does it not laugh? If you poison it, does it not die?”)

In the 2010-2011 term, the Roberts Court cut down an exemplary Arizona statute that leveled the financial playing field, rejected a suit by 1.6 million women against a woefully discriminatory Wal-Mart, shielded the makers of drugs from lawsuits by patients who had been harmed, smothered lawsuits against mutual fund cheaters and liars, and disallowed a suit by a death row inmate even though the prosecution failed to turn over exculpating evidence.

The Supreme Court has had 112 justices and chief justices in its history, about 15 of them liberal to progressive.

They were justices like William Johnson (1804-1834), Samuel Miller (1862-1890), John Harlan I (1877-1911), Louis Brandeis (1916-1939), Oliver Wendell Holmes (1902-1932), Harlan Stone (1925-1941), Benjamin Cardozo (1932-1938), Hugo Black (1937-1971), William O. Douglas (1939-1975), Frank Murphy (1940-1949), Robert Jackson (1941-1954), Earl Warren (1953-1969), William Brennan (1956-1990), Thurgood Marshall (1967-1991) and John Paul Stevens (1975-2010).

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. 

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.

Magnificent dissents

Despite the long litany of woes heaped on the people by the court majority over 224 years, some great dissents have illustrated what it means to be an American. It does not mean wearing a flag pin or flying flags on pickup trucks.

It means dissents as In re Yamashita (1946). The court upheld the hanging of a Japanese general ordered by a military commission, declaring that the findings of a military panel were unreviewable. Justice Murphy dissented because the general was denied due process and a fair trial.

“No exception is made to those who are accused of war crimes or those who possess the status of an enemy belligerent. Indeed, such an exception would be contrary to the whole philosophy of human rights which makes the Constitution the great living document that it is.

“The immutable rights of the individual belong not alone to the members of those nations that excel on the battlefield or that subscribe to democratic ideology. They belong to every person in the world, victor or vanquished, whatever may be his race, color or beliefs. They rise above every status or outlawry. They survive any popular passion or frenzy of the moment.

“While people in other lands may not share our beliefs as to due process and the dignity of the individual, we are not free to give effect to our emotions in recklesss disregard or the rights of others. We live under a Constitution which is the embodiment of all the high hopes and aspirations of the new world.”

In Olmstead (1928), the court upheld wiretapping but Holmes and Brandeis dissented. Holmes declared it would be better for “some criminals to escape than that the government should play an ignoble part.”

Brandeis in his dissent declared: “The makers of our Constitution undertook to secure conditions favourable to the pursuit of happiness. … They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men … Our government is the potent, the omnipresent teacher. It teaches the whole people by its example. If the government becomes a lawbreaker it breeds contempt for the law.”

After his disastrous ruling in Schenck, Holmes came to his senses with a marvelous dissent six months later in Abrams (1919). He deplored the 20-year prison sentence for publishing two harmless leaflets.

He pointed out that the defendants were punished “not for what the indictment alleges but for the creed that they avow.” He concluded with a ringing declaration of free speech: “We should be eternally vigilant against any attempts to check the expression of opinions that we loathe.”

Justice Harlan Stone was the sole dissenter in Gobitis (1940) when the court upheld a school flag-salute statute. The Jehovah’s Witnesses objected because to them saluting the flag was worshiping a graven image.

“It is a long step, and one which I am unable to take, to the position that government may, as a supposed educational measure, compel public affirmations which violate religious conscience,” Stone wrote.

“The very essence of liberty is the freedom of the individual from compulsion as to what he shall think and what he shall say. This seems to me no more than the surrender of the constitutional protection of the liberty of small minorities to the popular will.”

Stone was proved right just three years later in Barnette when Justice Jackson made his great statement about the Bill of Rights: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

“One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly may not be submitted to a vote. They depend on the outcome of no elections.”

In Zorach v. Clauson (1952) the court upheld a New York public school board policy of allowing students released time to attend religious classes. Justice Douglas, to his everlasting shame, wrote the majority opinion. “We are a religious people whose institutions presuppose a Supreme Being,” he wrote.

In a sizzling dissent, Justice Jackson answered Douglas:

• “The day that this country ceases to be free for irreligion it will cease to be free for religion.”

• “ The wall which the court was professing to erect between church and state has become even more warped and twisted than I expected.”

• “Today’s judgment will be more interesting to students of psychology and of the judicial processes than to students of constitutional law.”

It’s dissents like these that should make Americans proud.

Jake Highton teaches at the University of Nevada, Reno journalism school.
 

Reader Comments

Posted 04/05/2012 5:24AM by Anonymous 

A fine job. Noteworthy that three of the worst decisions came in the past 12 years. My only disagreement is that I would have District of Columbia v. Heller (2008) on my own top ten list. Of course, if the Roberts Court invalidates the individual mandate, I think you should revisit the rankings. 


Posted 04/06/2012 10:45AM by Anonymous 

Next, please develop an article on the 100 worst decisions by the Supreme Court, because 10 just doesn’t do justice to the scope of the problem. In reviewing the decisions that look so flawed in retrospect, it helps us appreciate the limitations of the current Gang of Nine. I’d like to add Korematsu v. United States, 323 U.S. 214 (1944), a landmark case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II. In a 6-3 decision, the Court sided with the government, ruling that the exclusion order was constitutional.  


Posted 04/27/2012 9:52AM by Anonymous 

As 4/6 said, the exclusion of Korematsu, which permitted the concentration camps of Japanese-Americans, the majority of whom were citizens, is an affront to this list. Aside from Plessy and Dred Scott, none of the above cases discriminate against American citizens on the basis of their skin color. In Korematsu, SCOTUS upheld a system that deprived American citizens of their life, liberty, and property solely on the basis of their ancestry.