Houston Area Liberty Campaign

[By HALC.us staff]

Why the choice of Justices sitting on the bench is vitally important …and how since they’re human too, they can royally eff it up for about 300 million other people.

In this writer’s personal opinion, the following are the top five worst rulings by the U. S. Supreme Court.  This was quite a difficult task to undertake, as there has been so much from the Court that seems to fly in the face of what is “good,” “right” and Constitutional.

I will give a basic layman’s case breakdown, the Court’s decision and subsequent case history (as far as being contested further in the lower courts after being “reversed and remanded” or being overturned by subsequent U. S. Supreme Court cases.  I will also give my “gems of reasoning” as to Constitutional issues and arguments that have been or will be quoted by legal scholars for decades to come.

[In case you’re interested in other people’s take on this subject, check here, here and here for other folks’ opinions as to the top five or ten U. S. Supreme Court decisions.  My top five pretty much mirrored those reflected in these other instances.  I got the idea for this article in light of the recent clamor over the Elena Kagan nomination for U. S. Supreme Court.]

*Per curiam means “by the court.”  It’s a phrase used to distinguish the whole court’s opinion versus one judge’s opinion.  Sometimes it denotes an opinion written by the Chief Justice or Presiding Judge, or to a brief announcement of the disposition of a case by court not accompanied by a written opinion.

**Slip opinion is the second version of an opinion which is sent to the printer later in the day on which the bench opinion is released by the Court. Each slip opinion has the same elements as the bench opinion–majority or plurality opinion, concurrences or dissents and a syllabus–but contains corrections not appearing in the bench opinion. Slip opinions are posted on this Website within minutes after the bench opinions are issued and remain posted until the opinions are published in bound volumes of the United States Reports.

***Concurring opinion means means that the Justice did agree with the official opinion (“holding,” “held”) of the Court but used a different line of reasoning to arrive at the same conclusion and wrote his/her own opinion as to his/her interpretation of what the Constitution, U. S. laws, etc., say on the matter.

****Dissenting opinions means that the Justice did not agree with the official opinion (“holding,” “held”) of the Court and wrote his/her own opinion as to his/her interpretation of what the Constitution, U. S. laws, etc., say on the matter.

1. Korematsu v. United States.  Japanese internment in WWII … Between 1942 and the end of WW II, Japanese-born people who had become citizens before the war’s outbreak and those Americans of Japanese descent born in the United States were rounded up, detained and held for up to __ yrs in “war relocation centers.” That was the direct result of Pres. Franklin D. Roosevelt’s Executive Order 9066, signed in the wake of the Japanese attack on Pearl Harbor.  The order designated all West Coast residents of Japanese ancestry “enemy aliens.”  (Descendents of German and Italian ancestry were also targeted and placed into war relocation centers but not quite to the degree that Japanese people were.)  Yep, commit the crime of being or even looking Japanese, go to a war relocation center.  There were approximately 120,003 Americans of Japanese descent, either born here in the states or naturalized citizens, that either voluntarily reported to or were carried off to war relocation centers.

http://en.wikipedia.org/wiki/Executive_Order_9066

The first Korematsu case was argued before the Court May 11, 1943 and the Court’s decision was handed down June 1, 1943, in Korematsu v. United States, 319 U.S. 432 (1943) … or case preview here.

The second Korematsu case was argued before the Court October 11 and 12, 1944 and the Court’s decision was handed down December 14, 1944, in Korematsu v. United States, 323 U.S. 214 (1944).  Thankfully, Executive Order 9066 was rescinded by none other than President Gerald Ford on February 19, 1976.

In 1980, Jimmy Carter signed legislation creating the Commission on Wartime Relocation and Internment of Civilians (CWRIC). The CWRIC conducted an official governmental study of Executive Order 9066, related wartime orders, and their impact on Japanese Americans in the West and Alaska Natives in the Pribilof Islands.

In December 1982, the CWRIC issued its findings in Personal Justice Denied, concluding that the incarceration of Japanese Americans had not been justified by military necessity. The report determined that the decision to incarcerate was based on “race prejudice, war hysteria, and a failure of political leadership.” The Commission recommended legislative remedies consisting of an official Government apology and redress payments of $20,000 to each of the survivors.  A public education fund was set up to help ensure that this would not happen again (Public Law 100-383).

On August 10, 1988, the Civil Liberties Act of 1988, based on the CWRIC recommendations, was signed into law by Ronald Reagan. On November 21, 1989, George H.W. Bush signed an appropriation bill authorizing payments to be paid out between 1990 and 1998. In 1990, surviving internees began to receive individual redress payments and a letter of apology.

Kudos to Korematsu Justice Owen Josephus Roberts for wanting to preserve Constitutional rights for those detained unjustly and “punishment for ancestry.”  Justice Roberts’ dissenting**** opinion:

“I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.

This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States …nor a case of temporary exclusion…for his own safety…nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger….  On the contrary, it is…punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning…loyalty…towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.”

2. Dred Scott v. Sandford, 60 U.S. 19 How. 393 393 (1856) … or case preview here.  Living in a “free state” during a time shortly before the Civil War did not make a person “free.” Dred Scott v. Sandford was briefed to the Court in 1856 and decided in  1856.  Dred Scott was a slave born in Virginia who claimed he should have been emancipated when his owner had taken him to live in the free state of Illinois and the free territory of Wisconsin (now Minnesota). The court ruled that people of African descent held as slaves, and their descendants, whether they were free or slave, could never be U.S. citizens. The court also ruled that Congress had no right to prohibit slavery in the territories, and that slaves, not being citizens, could not sue in any courts as that was a right limited to a citizen.

http://www.sos.mo.gov/archives/resources/africanamerican/scott/scott.asp

Chief Justice Rowan Gamble of the Missouri Supreme Court (as quoted by Justice John  McLean and joined by Justice Benjamin R. Curtis in the Supreme Court Scott case) eloquently wrote in his Missouri Supreme Court dissenting opinion:

“[T]he perfect equality of the different States lies at the foundation of the Union. As the institution of slavery in the States is one over which the Constitution of the United States gives no power to the General Government, it is left to be adopted or rejected by the several States, as they think best, nor can any one State, or number of States, claim the right to interfere with any other State upon the question of admitting or excluding this institution.”

“A citizen of Missouri who removes with his slave to Illinois has no right to complain that the fundamental law of that State to which he removes, and in which he makes his residence, dissolves the relation between him and his slave.  It is as much his own voluntary act as if he had executed a deed of emancipation.  No one can pretend ignorance of this constitutional provision, and, “he says, “the decisions which have heretofore been made in this State and in many other slaveholding States give effect to this and other similar provisions on the ground that the master, by making the free State the residence of his slave, has submitted his right to the operation of the law of such State, and this, “he says, “is the same in law as a regular deed of emancipation.”

3. Kelo et al.  v New London et al., 545 U.S.—04-108 (2005) … or case preview here.  Property rights case. Kelo et al.  v New London et al was argued on February 22, 2005, and decided on June 23, 2005.  Stated in short that any taxing, governmental agency or governmental authority can “take” private real property and give it to another individual or group of individuals if the “new owner” can put the property to use at a higher taxing rate than the current owner. The “new intended owner” doesn’t even have to show a clear, concise intended purpose for the property.  I.e., if little old lady Kelo just wants to retire and live out her golden years in her dream home but the nearby water management district wants the property to maybe build a mini-waterway business complex that will be taxed at a higher rate, than little old lady Kelo is flat out of luck.

The Kelo plaintiffs claimed that the taking of their properties would violate the “public use” restriction in the Fifth Amendment’s Takings Clause. The trial court granted a permanent restraining order prohibiting the taking of some of the properties but denied relief as to others. Relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U. S. 229, and Berman v. Parker, 348 U. S. 26, the Connecticut Supreme Court affirmed in part and reversed in part, upholding all of the proposed takings.

Held: The city’s proposed disposition of petitioners’ property qualifies as a “public use” within the meaning of the Takings Clause. Pp. 6-20.  [See related HALC.us article here.]

Photo by Isaac Reese, © Institute for Justice, 2004

Pointed, salient pearls of wisdom from Justice Sandra Day O’Connor, joined by Chief Justice Scalia and Justice Clarence Thomas in O’Connor’s dissenting opinion:

“Over two centuries ago…Justice Chase wrote:

‘An act of the Legislature…contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority….[A] law that takes property from A. and gives it to B…is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.’ Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner…i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public….  To reason…that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property…effectively to delete…‘for public use’ from the Takings Clause of the Fifth Amendment.” [Citations added.]

4. Bush et al.  v. Gore et al., 531 U.S. 98 (2000) (per curiam)..  or case preview here. Bush et al.  v. Gore et al. was argued on December 11, 2000, and decided on December 12, 2000.  This case ruled that Florida vote recounts in the 2000 Presidential election violated Equal Protection afforded in the 14th Amendment, that the Florida Supreme Court had misinterpreted Florida election law and that there was not enough time left to set up alternative methods to resolve the disputed election under Florida law.

The upshot? The Supreme Court—and not necessarily the voters or even the House of Representatives—decided the 2000 presidential election. Perhaps it even started a trend (see Franken, Al) or broke a bad one (see Tilden, Samuel J.). Maybe your interpretation of Bush v. Gore is tainted, depending on if you voted for the “certified winner,” George W. Bush, or Al Gore and I guess third party candidates’ voters’ votes don’t figure in this argument.

In the end, what “good” came from this convoluted jab at the very heart of our notions of our having a hand in the molding of our nations’ laws and policies by electing the person best suited for the job? Well, some would argue that the “good” was that [sarcasm on…] we got them shiny, new-fangled, really expensive, not-by-competitive bid contract electronic voting machines, since they are never prone to mis-reading a vote, tampering, failure, or voter confusion by old folks as to “butterfy style ballots,” so there can be no hanging, pregnant or dimpled chads. [sarcasm off…]

http://en.wikipedia.org/wiki/United_States_presidential_election_in_Florida,_2000

Justice Souter pulls absolutely no punches.  He writes:

“…I am in substantial agreement with the dissenting opinions of Justice Stevens, Justice Ginsburg, and Justice Breyer.  I write separately only to say how straightforward the issues before us really are.
There are three issues: whether the State Supreme Court’s interpretation of the statute providing for a contest of the state election results somehow violates 3 U. S. C. § 5; whether that court’s construction of the state statutory provisions governing contests impermissibly changes a state law from what the State’s legislature has provided, in violation of Article II, § 1, cl. 2, of the National Constitution; and whether the manner of interpreting markings on disputed ballots failing to cause machines to register votes for President (the undervote ballots) violates the equal protection or due process guaranteed by the Fourteenth Amendment. None of these issues is difficult to describe or to resolve.
…
In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots….
Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the…meeting of electors, December 18….  To recount these manually would be a tall order, but before this Court stayed the effort to do that the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all disputed ballots now.”

5. Plessy v. Ferguson, 163 U.S. 537 (1896) … or case preview here.   …. “separate but equal” as to railroad cars, and hence at that time, nearly all other facets of life since railroad was pretty much the only way to travel if you didn’t own a horse. Plessy v. Ferguson was argued April 18, 1886 and decided on May 18, 1896.

Homer Plessy was a Louisiana black man who boarded a “whites only” railroad car. He was arrested and sued under the equal rights provisions of the 13th and 14th amendments. Ferguson was the Louisiana judge who ruled that the state had the right to regulate railroad companies in any way it saw fit. The Supreme Court justices, once again exhibiting their sense of racial tolerance and fairness, ruled that the law did not suggest black inferiority, and that the separation of the races in public facilities was hunky-dory, as long as those facilities were equal. The “separate but equal” ruling stood until it was overturned in the Brown v. Board of Education case in 1954.

http://wikihistoria.wikispaces.com/Plessy+v.+Ferguson

http://wikihistoria.wikispaces.com/Plessy+v.+Ferguson

Now we turn to Obama’s most recent Supreme Court nominee, Elena Kagan.  Former Solicitor General Elena Kagan of the Department of Justice, an Obama nominee for the U. S. Supreme Court, was an attorney on a recent controversial high-profile First Amendment case in her work with the Justice Department.

The case, Citizens United v. Federal Election Commission, began when a conservative citizens group, Citizens United, made a movie critical of former First Lady Hillary Rodham Clinton when she sought the Democratic presidential nomination. Citizens United v. Federal Election Comm’n, 558 U. S. __ , (2010).  Slip opinion**.  Citizens United sought to air ads for the movie.  Citizens United wanted to distribute the movie by local cable system video-on-demand services during the ‘08 Democratic primary campaign.

However, the federal courts said the movie looked and sounded like a long campaign ad and therefore should be regulated like one.

Citizens United v. Federal Election Comm’n was argued on March 24, 2009, re-argued September 9, 2009, and decided on January 21, 2010. The District Court’s judgment was reversed with respect to the constitutionality of 2 U. S. C. §441b’s restrictions on corporate independent expenditures. The judgment was affirmed with respect to BCRA’s disclaimer and disclosure requirements. The case was remanded for further proceedings consistent with the Court’s opinion.

In Kagan’s arguments, she stated that the Courts or Congress have never applied theories similar to BCRA 203 to any books and “for 60 years a book has never been at issue” but a pamphlet might be. BCRA is the Bipartisan Campaign Reform Act of 2002.

Hear Kagan in her own words argue that the Constitution does not prevent the government from banning political pamphlets.  Here is the transcript from those oral re-arguments before the U. S. Supreme Court on September 9, 2009.

The current justices on the U. S. Supreme Court are:

John G. Roberts, Jr., Chief Justice
John Paul Stevens, Associate Justice
Antonin Scalia Associate Justice
Anthony M. Kennedy, Associate Justice
Clarence Thomas, Associate Justice
Stephen G. Breyer, Associate Justice
Samuel A. Alito, Jr., Associate Justice

Unfortunately for those on the Constitution’s side, five of the Supreme Court Justices agreed with Kagan and other government attorneys: Chief Justice Roberts, and Justices Kennedy, Alito, Scalia and Thomas.

However, fortunately four of the Supreme Court justices did not agree with Kagan and other government attorneys: Justice Stevens, wrote the dissenting opinion, and Justices Ginsburg, Breyer and Sotomayor concurred.

Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia and Alito joined, in which Justice Thomas joined as to all but Part IV, and in which Justices Stevens, Ginsburg, Breyer and Sotomayor joined as to Part IV.

Chief Justice Roberts filed a concurring opinion, in which Justice Alito joined. Justice Scalia filed a concurring opinion, in which Justice Alito joined, and in which Justice Thomas joined in part. Justice Stevens filed an opinion concurring in part and dissenting in part, in which Justices Ginsburg, Breyer and Sotomayor joined.

Justice Thomas filed an opinion concurring in part and dissenting in part.

Campaign finance regulation critics may now test the ban on direct corporate donations to candidates.  “If all speakers are going to be treated the same, why wouldn’t a corporation be able to make a contribution to a candidate just like a PAC or an unincorporated association or an individual?” speculated James Bopp Jr., a campaign finance lawyer fighting limits on campaign donations.  The Citizens United decision might also fortify PACs and other political party groups wanting to end the ban on unlimited contributions to parties from labor and corporations.

Justice Stevens, in a 90-page opinion that dwarfed Kennedy’s, complained that the court majority overreached by throwing out earlier Supreme Court decisions that had not been at issue when this case first came to the court.  “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law,” Stevens said.

In layman’s terms, that is called “legislating from the bench,” or overreaching in legal terms.  Legislating from the bench means straining the will of the people’s democratically elected representatives in the legislative and executive branches.  Judges putting their own feelings into making their rulings on cases, rather than ruling in cases on what the law says you can or cannot do or what you should or should not do in a given set of circumstances, either a “case on point” or a “case in point.”   And you really DON’T want a judge basing his ruling in a legal case on feelings—only the law!!

The very basic thing you should take from the Citizens United case is that the Court’s majority ruling in this case now could open up the gates for non-persons to possibly be given the same rights as living persons.

Additional reading on Citizens United is here.  If we allow liberalism and overreaching case opinions to creep more into the U. S. Supreme Court, we might wind up with even more crappy Supreme Court decisions like those above…