Okay, so for some reason after about 227 years since it was founded, some people have gotten this totally deluded idea in their head that the Supreme Court is some kind of supreme authority that is infallible. Anytime someone debates me about Supreme Court decisions the predetermined conclusion is that after I give them the overwhelming evidence they are wrong, they will use an appeal to authority and claim that because I am not on the court my opinion is wrong. Let me state this for the record though, even with my mere 2 years in pre-law I am still more fit to serve on the Supreme Court than certain justices. Just to give a specific example so I don’t look like a braggart, a certain Justice while speaking about abortion claimed the right to privacy is found in the 14th Amendment however as any first-year law student or a kid with a Pocket Constitution can tell you, that is completely wrong. The right to privacy is guaranteed by the 4th Amendment, and before we get to the “one-time mistake” argument, she has repeated this inaccurate claim more than once.
That aside, there have always been periods where the Court has made questionable decisions. People routinely choose to ignore the political aspect of the court when a decision matches their political sensibilities. But as I said, The Court is not infallible and its members are not some legal gurus. These are officials appointed by other politicians with lifetime tenures. They do not have to even be qualified and they are not accountable to the people of the United States. Literally, anybody could conceivably be confirmed as a Supreme Court Justice if one party has the white house and a majority in the Senate. (Prior to the tantrum thrown by Democrats earlier this year it required a super majority of 60 votes)
Luckily decisions made by them are never totally absolute. This is a good thing since some past decisions have deprived people of their rights based on politics. In 227 years there have been a total 188 cases have been overturned on some serious constitutional issues, that means an average of .01 cases a year overturned or 1.2 cases overturned for each year the court has existed. 188 sounds small in the grand scheme of things, but that is just the number of decisions overturned to date. And considering it is a question of fundamental rights, 188 is 188 times too many. Here are 15 of these decisions and a brief explanation of them. Let’s see if you still have the same faith in the court after reading these.
The Facade of the United States Supreme Court. Image from britannica.com
This was considered a “Landmark Labor Law Case” at the time it occurred. The Plaintiff, Mr. Joseph Lochner, claimed that the Bakeshop Act of 1885 violated the 14th Amendment by limiting how he could enter into a contract with his employees. Mr. Lochner had been found guilty of violating this act twice and he appealed the second conviction on this basis which is why it made it all the way to the court. Both times he had violated a provision of the law which prohibited him from letting any employee work more than 10 hours in a day or 60 hours a week. NewYork State claimed that this was for the health of the workers since in 1885 Bakeshops were not a very healthy working environment. Mr. Lochner’s Attourney Mr. Henry Weismann argued that the modern Bakeshop was a marked improvement and that with the introduction of proper ventilation it was comfortable to work there in the summer or the winter. He claimed that the enforcement of the law was an unreasonable exercise of the state’s police power.
In a 5-4 decision, the court ruled in favor of the plaintiff, citing that the law regulating workers hours did not constitute a legitimate exercise of state police powers, rather favoring the freedom of contract. They disregarded the argument that the workers did not have equal bargaining power. The main flaw in the case is that the Constitution did not guarantee any freedom of contract. This precedent was overturned in another 5-4 ruling in West Coast Hotel Co. vs Elsie Parrish. In this case, the court decided that the Constitution did indeed permit the state to restrict the right of contract when such restrictions protected community, health, and safety, or vulnerable groups.
This was considered one of the first major Supreme Court cases and tested the concept of federal jurisdiction and the ability of an individual from one state being able to sue the government of another state. Alexander Chisholm was the executor of the estate of Robert Farquar, and in this capacity, he sued The State of Georgia for payments due to him for goods that Robert Farquar had supplied Georgia during the Revolutionary War. The State of Georgia however claimed that the lawsuit was invalid, as that Georgia was a sovereign state and had to consent to be sued. In a 4 to 1 decision (at this time the court had only 5 justices) the court ruled that Section 2 of Article 3 in the Preamble to the Constitution meant that the jurisdiction of the federal courts superseded the sovereignty of the states. This ruling however was later overturned by the 11th Amendment to the United States Constitution.
This is another, more recent case that also deals with government immunity, this time the Qualified Immunity of a Police Officer from a civil rights case brought by a Bivens Action. In 1994 during a celebration for the conversion of a former military base into a national park, at which the Vice President was a keynote speaker, Elliot M. Katz who was part of a group named “In Defense of Animals” unfurled a banner protesting the possibility that Letterman Army Hospital might be used for animal experimentation. Donald Saucier who was on duty as an MP that day along with his colleague Evan Parker had been warned of the possibility of demonstrations and having identified Katz as a demonstrator, they grabbed him from behind and escorted him to a nearby military van where Katz alleged they shoved or threw him into the van. Katz brought a case against the soldier invoking the Bivens decision and claimed the officers had violated his Fourth Amendment Rights and had exercised excessive force against him. Mr. Saucier appealed the case citing that he had qualified immunity as he felt his actions were at the time justified.
In a 6 to 3 decision, the court determined that Saucier was entitled to qualified immunity and that in the determination of qualified immunity the court in question must establish two facts. The first is whether the facts presented show that an officer’s actions violated a constitutional right, and then whether or not the right that was allegedly violated was clearly established. It was clearly stated that the steps were to be followed in that exact order. This precedent stood for 8 years till it was partially overturned in Cordell Pearson vs Afton Callahan. In Pearson v Callahan the court then ruled that the Saucier decision was not mandatory, and rather that the procedure was up to the discretion of lower courts.
This in an interesting case involving the authority of the government to revoke citizenship. Mr. Perez was born in 1909 in the town of El Paso Texas and resided there till about 1920 when his family moved to Mexico. During the second world war, he was permitted to enter the United States under the premise that he was a Mexican alien Railroad Worker and had been born in Mexico. In 1947 however, he returned to Mexico and applied again for entry to the United States, this time citing that he had been born in Texas and was indeed a US Citizen. Upon entering the country again he was immediately charged for failing to sign up for the military draft. Under oath, Mr. Perez admitted that he had returned to Mexico between 1944 to 1947 to avoid military service and that during that time he had voted in a Mexican Presidential Election in 1946. In 1953 Perez surrendered himself to immigration officials in San Francisco as an unlawful immigrant but also claimed he was a citizen of the United States by birth and was entitled to remain here.
In 1958 the court upheld earlier rulings that Perez had lost his American Citizenship with a 5 to 4 vote. The argument was that Congress had the authority to revoke citizenship and that Perez’s voluntary choice to vote in a foreign election was grounds for loss of citizenship. In my opinion, this was the right decision considering all of the mitigating factors. Sadly in 1967, the court overruled its previous opinion in the case of Beys Afroyim vs Dean Rusk. In Afroyim v Rusk they ruled that according to the 14th Amendment, Congress did not have the right to revoke the citizenship of an individual without his or her consent.
This case kinda hits close to home for me since it was a case involving a law prohibiting Sodomy, or sex outside of the vagina. A Law Officer named Keith Torrik was delivering a then defunct warrant to Michael Hardwick, who due to a clerical error had missed a court case over a citation for public drinking. Mr. Hardwick’s roommate invited Officer Torrik into the apartment and showed him to Mr. Hardwick’s room where Officer Torrik observed Mr. Hardwick engaging in consensual oral sex with anther man since the door to the room was open. After Mr. Hardwick threatened to have officer Torrik fired for invading his privacy, Officer Torrik arrested both men on Felony charges of Sodomy.
Even after a district attorney declined to prosecute the charge because of the expired warranty along with his own personal objection to the law in question, Mr. Hardwick still decided to sue the Attorney General of Georgia for a declaratory ruling that the sodomy law was invalid. He argued that as an active homosexual he was liable to be charged for engaging in sexual activity. After the first court dismissed his case, a Federal Appellate Court overruled the lower court’s decision and found in favor of the plaintiff, Mr. Hardwick. The Georgia Attorney General however appealed the decision to the Supreme Court. In a 5 to four decision the court upheld the anti-sodomy law citing their belief that homosexual acts are not protected under privacy law, with one Justice even citing the moral repugnancy of the act as a reason to rule in favor of The State of Georgia.
It is interesting to note a heterosexual married couple was also listed as plaintiffs in this case, they argued that even though they wished to engage in sodomy the Georgia law prevented them from doing this. They however failed to prove the standing for their claim and were dropped from the suit. I mention this because it proves the point that this decision had negative implications even for heterosexual couples. In the end, the ruling was overturned by the 2003 decision from John Geddes Lawrence and Tyron Garner vs The State of Texas. In a 6 to 3 decision, the court ruled that the Bower decision violated the right to due process.
Taking a step away from social politics, I turn your decision to this 1968 Anti-Trust law case. Lester J. Albrecht was an independent newspaper carrier who had been acquired by Herald Publishing Company, an outfit that printed the St. Lewis Globe-Democrat. According to an agreement between the publisher and Albrecht, there was a maximum price he was not allowed to exceed. Exceeding this limit meant that the publisher could terminate his distribution territory and arrange for another carrier to serve those customers. Albrecht had failed to adhere to this agreement though, and after a period of protest Herald proceeded to inform his customers that they would distribute the paper at a lower price causing 300 of Albrecht’s 1200 customers to terminate their service with him.
Albrecht brought forth a complaint that the Herald Companies actions amounted to price fixing which was prohibited under the Sherman Anti-Trust Act. After an initial jury found in favor of Herald Company, Albrecht petitioned for the court to issue a Judgment Notwithstanding the Verdict which the court declined to do. Albrecht then appealed to the Eighth District Court of Appeals which upheld the lower court’s decision. However the Supreme Court in a 7 to 2 decision the court ruled in favor or Albrecht stating that the actions of the Herald Company’s actions were not unilateral but concerted, and that price fixing was not illegal per se. The second half of this decision was overturned by a unanimous decision in State Oil Company vs Barkat U. Khan when the court ruled that vertical maximum price fixing is not inherently unlawful and should be handled on a case by case basis using Rule of Reason.
This is one of my favorite cases not only because it occurred the year I was born but also because it was later overturned with the help of my favorite Supreme Court Justice. In 1989 the Michigan Chamber of Commerce challenged the constitutionality of the Michigan Campaign Finance Act. This law made it illegal for corporations to spend treasury money to support or oppose candidates in elections. There was a loophole however if the corporation held an independent fund solely for political spending it was exempt from this law. The Michigan Chamber of Commerce argued that the law violated the 1st and 14th Amendments by violating corporations rights to free speech and also their right to equal protection under the law. Their opponents however claimed that corporations did not have the same rights as individuals. In a 6 to 3 decision, the court ruled against the Michigan Chamber of Commerce.
In an opinion written by Justice Marshall, he stated that the court recognized the State of Michigan’s interest in combating a “different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” While I have great respect for Mr. Marshall and agree with the sentiment of what he said, I do not agree with its legality. If indeed there is no correlation between the public’s ideas and the corporations then there is no need to stop the corporations spending for promoting their interests as any amount of money would not sway the public opinion nor the results of an election if indeed there is no correlation between the opinions of the public or the opinions of the corporation. This decision was overturned 20 years later in the case of Citizens United vs The Federal Elections Committee. In that case, the court ruled that the FEC had violated the 1st Amendment rights of Citizens United when they intervened in their plans to air “Hillary: The Movie”.
In some ways, this case is tragic as it was not overturned in time to help the plaintiff. In 1935 Frank Palka (his name was misspelled as Palko on court documents) broke into a music shop to steal a phonograph and then shot and killed a police officer while fleeing. Palka was tried for 1st Degree Murder but was only found guilty of 2nd Degree Murder so he was given a Life Sentence. Prosecutors however appealed in accordance with Connecticut law and won a new trial at which Palka was found Guilty of 1st Degree Murder and sentenced to Capital Punishment. Palka appealed this, however, claiming that the second trial violated his right to due process and constituted Double Jeopardy and that it violated the 14th Amendment as it deprived him of due process.
At this time the court had been ruling on a case by case basis whether the 14th Amendment could be used to force compliance with the Bill of Rights, in the words of Benjamin Cardozo, the 14th Amendment Equal Protection only applied to rights that were essential to facilitate “the very essence of a scheme of ordered liberty.” Unfortunately for Mr. Palka, the court decided in an 8 to 1 decision that Double Jeopardy protections were not essential to the preservation of that “scheme of ordered liberty” and they upheld his conviction. Frank Palka was executed on April 12th, 1938 using the electric chair. It wasn’t until the case of John Dalmer Benton vs the State of Maryland in 1969 that the decision was overturned when the court recognized that Double Jeopardy applied to states as well. However, this was 31 years too late to help Frank Palka.
After Julian Carroll (D) became Governor of The State of Kentucky in 1974, Howard P. Hunt became director of the Kentucky Democratic Party. When the state purchased workman’s compensation insurance from Wombwell Insurance, Hunt conspired with the Vice President of the insurance agency to award the state’s contract to Wombwell in exchange for kickbacks that were to be sent to other insurance agencies selected by Hunt. $200,000 of that money was given to Seton Investments Incorporated, which was publically run by Charles McNally, but in reality was a front company that was really run by Hunt and Carroll’s Secretary of Public Protection and Regulation, James Gray. McNally received $75,000 for acting as a front man while Gray and Hunt spend the rest of the money on Florida condominiums, automobiles, and other luxuries. It is unknown whether Governor Carroll was in on this scheme as well.
In 1983 when the scheme was exposed, McNally, Hunt, and Gray were all brought up on federal charges of Mail Fraud, Tax Fraud, and Conspiracy. Hunt pleaded guilty to the Mail Fraud and Tax Fraud and was sentenced to 3 years in prison. Grey and McNally were found guilty on charges of conspiracy and fraud. The lower court also stated that the defendants had deprived the Citizens of Kentucky of “their right to have the Commonwealth’s business and its affairs conducted honestly, impartially, free from corruption, bias, dishonesty, deceit, official misconduct, and fraud,” as well as “money and other things of value.” They appealed the decision claiming that it was not legitimate services fraud because Hunt, who they had been charged with abetting, had no fiduciary responsibility to the state and that their due process had been violated since the lower court failed to inform the jury of this. The Six Circut however noted Grey’s fiduciary responsibility as a government official and decided that Hunt had the same de facto responsibility due to his extensive involvement in government affairs and his involvement in the allocation of the insurance contract to Wombwell.
In June of 1987 however, the court overturned their convictions in a 7 to 2 decision. In the majority opinion, Justice Byron White stated that the fraud statute did not protect the public’s intangible right to honest government, only protected money and property. In a dissenting opinion however, Justice John Stevens argued that “nothing in the words ‘any scheme or artifice to defraud,’ or in the purpose of the statute, justifies limiting its application to schemes intended to deprive victims of money or property.” Congress seems to have agreed with Justice Stevens. A year later Congress passed the Anti-Drug Abuse Act of 1988, a provision of which overturned the ruling of the court that corruption didn’t constitute fraud.
This is the most famous example of a grossly unjust Supreme Court Decision that was later overturned when those in power acknowledged that it was totally contrary to the spirit and letter of Constitutional Law. Dred Scott was born in 1795 to a female slave in Virginia. After moving to St. Louis Missouri in 1830, Mr. Scotts “Owner” sold him to a US Army Surgeon Dr. John Emerson. When Doctor Emerson moved to Fort Snelling in 1836 Mr. Scott was married to another slave, Harriet Robinson, in a civil ceremony performed by Robinson’s “Owner” who was also an officer of the peace. The next year Emerson was reassigned and rather than bringing Scott and Harriet with him, he decided instead to leave them in Fort Snelling and rent them out. In 1830 after Emerson was reassigned again to Louisiana, he sent for Scott and his wife who proceeded south to serve their “master” and his family. Along the way, they gave birth to their Daughter Eliza in what was considered free territory between Illinois and what would become Iowa. This made Eliza a free person under state and federal laws and the Scott’s could have sued for their freedom upon entering Louisiana. For some reason, they chose not to.
Between 1838 and 1840 the Scott’s moved twice, once when Dr. Emmerson was reassigned again to Fort Snelling and once more when Mrs. Emmerson moved returned to St. Louis with the slaves while her husband served in the Seminole War. In 1842 Dr. Emmerson retired from the Army and later died in 1843 while in the Iowa Territory. His wife Irene inherited the Scott’s and leased them out till 1846. Then in 1846, he attempted to purchase his families freedom. Irene Emmerson however refused which prompted Scott to pursue legal recourse.
It was at first expected Scott would win the case as legal precedence stated that slaves who spent extensive time in free states had a right to be emancipated. Scott also had a sympathetic Judge in Alexander Hamilton (No apparent relation to the founding father) who was known to be sympathetic to slave freedom suits. His Legal Council was being funded by the daughter of his former owner as well, who had married a banker. Everything looked like it was going good for Dredd Scott. However in June of 1847, the case was dismissed on a technicality, Scott had failed to prove he was enslaved by Irene Emmerson because the witness who testified had never actually seen the lease documents since his wife handled those matters.
In December of 1847, Judge Hamilton granted Scott the second trial. Sadly due to an initial appeal by Irene Emmerson which was overturned and then a series of local disasters (A fire and Cholera outbreak), the new trial did not begin until January 1850. During this time Scott and his family were leased out under the custody of the St. Louis Country Sheriff who was instructed to put the profits in an escrow account to be paid out to the winner of the case. At the second trial, the Scotts overcame the Hearsay technicality by having the wife of the previous witness testify and thus they won their freedom. Emmerson however was unwilling to accept the loss of the slaves, and even though she had transferred ownership of the slaves to her brother John F. A. Sanford and moved to Massachusetts she appealed the decision to the Missouri Supreme Court. In 1852 the court reversed the trial court’s decision and declared the Scotts were still slaves. They based their decision on the reasoning that the Scotts should have sued for freedom in a free state.
In 1853 Scott again sued for his freedom, however this time he did not have the financial support of his former owners family as the financial burden had become too substantial for them. However, since John Sanford had returned to NewYork State the Scotts were able to take the case directly to federal court. Also in addition to their earlier complaints, Scott also claimed that Sanford had assaulted his family and held them captive for six hours on NewYears Day 1853. However, in 1854 the federal court judge instructed the jury to judge the case by Missouri law. Since the Missouri Supreme Court had decided against Scott the jury upheld that decision.
Scott appealed the decision to the Supreme Court and was represented pro bono by Montgomery Blair and George Ticknor Curtis, whose brother Benjamin Curtis was a Supreme Court Justice at the time and was one of the dissenting votes. In a 7 to 2 ruling split between party lines, The Court ruled against Dred Scott. The 7 Democrats drafted an opinion stating that Scott should not have even been entitled to a trial as he was a slave and could not be considered a citizen, so he had no legal right or standing in the courts. They went on to also claim that the Missouri Compromise was Unconstitutional and that territories or states that had abolished slavery still had no right to free slaves. Some point out that 2 of these Justices were encouraged by James Buchannon to make a decision that would put the question of slavery beyond political debate. Knowing the policies of the Democratic Party it is clear he intended for the members of the court to rule against Scott, and it is even speculated that Taney informed Buchannon of the planned decision shortly before his inauguration. This kind of communication is considered inappropriate by today’s standards and even by standards at the time.
In their Dissenting Opinions, Justices McLean and Curtis heavily criticized the decision. McLean illustrated that there was no basis for the claim that blacks couldn’t be citizens as at the time of the ratification of the Constitution, black men could vote in 5 of the 13 states. In his words, the decision made by the Democrats was “more a matter of taste than of law”. Judge Curtis was a lot harsher, claiming that most of the majority opinion was Obiter Dicta. Both Justices attacked the overturning of the Missouri Compromise as well, citing the continental congresses addition of anti-slavery provisions to the Northwest Ordinance and other subsequent acts that barred slavery north of 36°30′ N.
Luckily it only took 11 years to totally overturn the Dred Scott Decision. In 1865 the 13th Amendment was ratified which totally abolished slavery and also involuntary servitude except as a punishment for a crime. Then 3 years later in 1868, the 14th Amendment was ratified which guaranteed equal protection under the law for freed slaves, as well as barring participants in a rebellion from running for office and said that no state would be paid for the loss of slaves or any other debt incurred by the Confederacy. Sadly Dred Scott did not live to see this as he died November 7th, 1858 only 18 months after being voluntarily freed after Irene Emmerson’s second husband who was an abolitionist and had come under criticism for his wife’s actions. Scott’s Wife Harriet died 18 years later on June 17th, 1876, but she died a free woman who got to see her late husband’s struggle vindicated.
These cases make a very stark point. In all areas of law, the court that rules on the constitutionality of laws has made unconstitutional decisions. And an alarming number of them have to do with our fundamental rights and freedoms. People put way too much weight in the decisions of the Supreme Court, especially States and Courts which can simply ignore these decisions so they can be brought up again and hopefully corrected sooner. There are a great many decisions made in recent years by the court that need to be overturned as they have no basis in law.
Why does this happen so much? There are many reasons. There is the political nature of how the Supreme Court is selected, the lack of restrictions on them compared to other judges, the lifetime tenure with little chance for impeachment, the fact they do not answer to voters at all. Maybe this could be fixed by having some committee of judicial review for the court or by making it easier to impeach a justice if they do something wrong. I think the most important thing that can be done though is for everybody to face reality and stop treating the court as some sort of god. Certainly, the cases I cite above are reason enough to change that view.