I was not alive for the Dred Scott decision in 1857, Plessy v Ferguson decision in 1896 or Korematsu in 1944. In my adult lifetime I have seen plenty of very bad Supreme Court decisions and I’d like to briefly discuss a few today. Let’s explore.
To kind of set the stage for what I consider to be bad let’s look at the three I cited above. Dred Scott defended slavery over humanity. Plessy legalized segregation. Korematsu codified discrimination solely based on ethnicity. To make my list a decision has to be truly harmful to society and un-American.
The 20th century ended with Bush v Gore in 2000. It decided a presidential election based on the partisan leanings of the nine justices. It was so obviously blatant when you consider that Clarence Thomas’ wife, Virginia, actually worked for George W. Bush. Because it stopped a recount of the ballots in Florida we will never know who really won the 2000 election. Was Gore cheated or will George W. Bush’s presidency forever be viewed with an undeserved asterisk? In either event the decision undermined democracy and shattered transparency.
In 2008 we had the Heller decision. Basically it said that municipalities have no authority to control guns within their boundaries. We have different ordinances of all types in densely populated urban areas than in the wide open spaces of rural counties. Doesn’t it stand to reason that gun regulations would be different in the Nevada desert than in Manhattan?
All partisanship aside, by far the biggest problem in American politics is the gargantuan influence of money in elections. Citizens United and some subsequent decisions opened the floodgates to corporate (overtly) and foreign (somewhat covertly) money.
The Second Amendment guarantees the right to bear arms and the First Amendment guarantees the freedom of speech. America has a gun culture and a representative democracy cannot function well sans participation. That all said we can still use some guardrails on the highways.
In the 2013 ruling Shelby County the Court invalidated part of the 1965 Voting Rights Act which was aimed at stopping states and localities (mainly in the south) from discriminating via gerrymandering. Not only was Shelby County guilty of discriminating via gerrymandering, theirs was a textbook example of it complete with before and after results proving the effectiveness of the practice.
While those decisions from 2000 through 2013 were horrendous they were pretty much alone. This year the Supreme Court outdid itself! I’m just going to look at three decisions although they were far from alone. They are Trump v Hawaii, National Institute of Family and Life Advocates v Becerra and Janus v American Federation of State, County and Municipal Employees, Council 31.
Trump v Hawaii basically said that regardless of his words the President’s actions when it comes to anything as long as the President claims it has to do with national security goes regardless of whether national security is actually involved, is served or the action clearly discriminates based on ethnicity or religion (which is a clear violation of the First Amendment). In the process Chief Justice Roberts disavowed Korematsu which is a perfect example of ethnic discrimination. Confused? Join the club. My only explanations are malarkey and hypocrisy.
In National Institute the Court ruled that an organization that willfully withholds information and thereby presents false information to a pregnant woman is within their rights to do so and that the State requiring them to post true, complete and/or accurate information is an undue burden. Since when is telling the truth an undue burden?
In an earlier ruling the Supreme Court had decided that non-union employees of a government entity could not be required to pay the portion of union dues that went to fund political activities. The idea was that they may not agree with the union’s stand and being required to help finance it was a violation of their First Amendment rights. My argument was that if my utility provider (a legal monopoly which I have no realistic choice but to patronize) takes a political stance that I disagree with I cannot discount my utility bill. (I can cite that actually happening to me in Florida and to top it off the utility’s position was outright false.)
In Janus the Court took it a giant step further and beyond even debatable fairness. It decided that a non-member cannot be compelled to pay any portion of union dues but they still receive the same compensation as a dues paying employee. Talk about the free milk and a cow story! The real motivation was to weaken the union movement’s political clout.
Remember these three decisions are only the tip of the iceberg. A case can be made that the Supreme Court did more harm to America in 2018 alone than in the 19th and 20th centuries combined. While I’m tempted to say I’ve seen the worst of the Supreme Court I have to temper that remark with the fact that the future looks anything but rosy.
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