Supreme Failures from the Court
It should come as no surprise that many conservative legal thinkers consider Roe v. Wade to be among the worst decisions ever handed down by the Supreme Court. The fiftieth anniversary of Roe is also the first since it was overturned by Dobbs v. Jackson Women’s Health. But many terrible decisions remain. The anniversary prompted us to ask: What are the worst of the worst?
We decided to ask self-identified conservative and libertarian legal scholars to send us their own lists of what they considered to be the Court’s worst opinions. We then compiled a list of the twenty cases mentioned the most often and sent it back to scholars, asking them to rank the worst opinion, the second worst, etc. We gave every first-place vote ten points, every second-place vote nine points, and so forth. In all, we surveyed more than 100 leading conservative and libertarian legal scholars and received about fifty responses. There were some disagreements among the respondents, but there was strikingly widespread agreement about the very worst opinions.
Overall, our Dishonor Roll of opinions fell into four broad conceptual groups, the first of which included decisions that denied the full humanity of others. A second group represented the abuse of judicial power through the creation of nonexistent constitutional rights. Opinions in the third group failed to recognize or enforce limits on government power that actually are in the Constitution. And a final group consisted of opinions fundamentally misunderstanding the relationship of church and state and the contours of religious freedom. There is some overlap of opinions that could fit into more than one of these groups. Arguably all, or nearly all, could be said to fall into either the second or third—imposing what is not in the Constitution or failing to enforce what is. But we invited participants in the survey to comment, if they wished, on why they thought these were judicial blunders, and our groupings represent the reasons they gave.
Leading the first group was the worst disaster in the Court’s history: Dred Scott v. Sandford (1857). The majority opinion, by Chief Justice Roger Taney, held that African-Americans “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” In other words, African-Americans, whether enslaved or free, could never be citizens of the United States and their rights need not be respected as a matter of federal law. Moreover, Dred Scott held that Congress had no power to prohibit the spread of slavery into federal territories. As Abraham Lincoln recognized, the ruling jeopardized the nation’s commitment to its founding principles of equality and liberty and threatened even the people’s right to rule themselves. Dred Scott is widely considered to have exacerbated the sectional conflict that Taney and the majority probably thought they were ameliorating, and to have hastened the onset of the Civil War.
Fortunately, Dred Scott was overturned by the Thirteenth and Fourteenth Amendments to the Constitution (one of four Supreme Court decisions to be overturned in this way). These amendments did much to recognize the majestic principles, articulated in the Declaration of Independence, that all persons are “created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”
