The Worst Supreme Court Selections in American History

Friday, July 6, AD 2012

Chief Justice John Roberts’ recent decision upholding the Affordable Care Act, as well as his vote to overturn much of Arizona’s illegal immigration law, has made conservatives think that yet again a Republican president was bamboozled. Personally I think it’s a bit early to completely write off the Chief Justice. For most of his tenure he’s been a fairly reliable conservative vote, and there is still much time (presumably) before he retires. Then we will be better able to assess his legacy.

It did get me thinking, though. What are the worst Supreme Court selections in history? I’m looking at this question in terms of the president doing the selecting. Someone like Ruth Bader Ginsburg, a doctrinaire liberal, wouldn’t make the cut because no doubt she has voted in much the way Bill Clinton would have wished when he picked her. Similarly, I do not include someone like John Paul Stevens. Though over time he veered much further to the left than Gerald Ford or his Attorney General , Edward Levi (who basically made the selection) could have anticipated, Stevens’ jurisprudence was not that radically removed from Ford’s own preferences. In fact, Ford wrote of Stevens:

For I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thrity years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution’s broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylorand United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine’s minnows. In words perhaps somewhat less memorable then, “Shouting fire in a crowded theater,” Justice Stevens wrote, “There is something fishy about this case.”

He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. I wish him long life, good health and many more years on the bench.

Well, if Ford was willing to base his legacy on his choice of John Paul Stevens, then I’m happy to call Gerald Ford a miserable failure.

This, then, is a list of the biggest mistakes in Supreme Court selection. 

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15 Responses to The Worst Supreme Court Selections in American History

  • While I like your selections, I could also see arguments for James McReynolds and Harlan Stone. I guess in both of those cases it wasn’t that the Justices evolved but that the issues before the court that would have provoked the most conflict between them and their appointers were well after the appointments. Actually that point was after Wilson and Coolidge were both deceased.

  • Warren as Attorney General of California was a driving force behind the West Coast internment or evacuation of Japanese Americans, a move opposed at the time by J. Edgar Hoover who, no joke, received an award from the American Civil Liberties Union during the War. Warren later repented of the decision many years after the War, but his actions then clearly indicated that he would never let the Constitution stand in the path of anything that Earl Warren wanted done.

  • I would have had Blackmun number one on the list. He made the Supreme Court only because he was a childhood friend of Chief Justice Warren Burger and it was thought he would vote like Burger. A man of infinite vanity and small mind, Blackmun gets my vote for worst Supreme Court justice.

  • O’Connor voted pretty reliably conservative while Reagan was in office. Reagan was badly served by Goldwater, a closet pro-abort and open Planned Parenthood backer, in regard to that appointment.

  • Souter was completely contemptible.

    “David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, inluding the work of the Supreme Court, was universal. Toughened, or coarsened, by the their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter though he might not be able to serve with them anymore.

    Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v. Gore and wept.”

    http://blogs.wsj.com/law/2007/09/06/did-bush-v-gore-make-justice-souter-weep/

    A left wing partisan and all around doofus, his opinions have to be read to be believed.
    Souter was a warning against a stealth candidate who turns out to be a stealth candidate for the other side. Warren Rudman, the political mentor for Souter, was a pro-abort RINO senator from New Hampshire and he knew precisely what the nation was getting with his protege:

    http://www.visionandvalues.org/2009/05/when-biden-and-rudman-wept/

    Souter’s view of constitutional jurisprudence given a mocking to remember:

    http://www.nationalreview.com/bench-memos/200197/david-souter-dumbs-it-down/matthew-j-franck

  • O’Connor voted pretty reliably conservative while Reagan was in office.

    I believe it was Jan Crawford’s book that detailed how O’Connor moved leftward as a result of Clarence Thomas. I’m not sure how much credence to put into that, but she certainly started her leftward drift around that time.

    As for Blackmun, I wouldn’t put him above Warren only because the latter was the Chief Justice and more instrumental in transforming the Court. Also – and this is pure conjecture – but I have a feeling that Ike regretted that pick more than Nixon regretted Blackmun.

    As for who was the worst – a slightly different topic perhaps worthy of a separate post – my vote would be Thurgood Marshall. Not only was he horrid from a constitutional standpoint, but his legal reasoning never impressed me.

  • Though wasn’t it O’Connor who said in 1983 that Roe was “on a collision course with itself” because medical advances were lowering the age of fetal viability and undermining the premise of Roe that unfettered abortion was OK through at least the 2nd trimester, if not longer, because the fetus wasn’t yet viable?

  • O’Connor was all over the map throughout her career when it came to abortion. In the AZ legislature she cast pro-choice votes, but then she signaled to President Reagan her personal opposition to abortion. I think Reagan was convinced that her personal opposition to abortion would carryover into her jurisprudence – which is the same reasoning Bush employed when he first nominated Miers. O’Connor did vote to ease some of the restrictions on abortion while on the Court, but ultimately could not vote to overturn Roe itself.

  • Arthur Goldberg, once a mouthpiece for the labor union goons. Breyer, who is mediocre, clerked for Goldberg, who went on to become UN ambassador without distinction. Although Goldberg found a “right to privacy” in Griswold v. Connecticut, he’s best remembered as a vigorous opponent of the death penalty as “cruel and unusual punishment.” Another weakhearted lib on a court dominated in recent decades by pinkos.

  • Souter is a snake, a very bad man.

    Joe Biden and Rudman jumped for joy after Souter’s Casey vote, evil indeed.

    http://www.jillstanek.com/2009/05/when-biden-wept-for-joy-his-history-with-david-souter/

  • On a somewhat smaller fiasco scale, back in the 80’s the Right To Life in our state endorced a ‘conservative Lutheran Pastor” for state assembly. We worked our tails off to get this guy elected. He did and we ended up with the most pro abortion liberal leaning representative we ever elected in this state. We had to live with that end result for many years as once he got in there we couldn’t get him out. Kind of like the SC. I guess anyone can be wolf in sheeps clothing, and the best can be snookered. Too bad millions of unborn have had to be sacrified to these bums.

  • Oh and now our very liberty. I don’t care how anyone tries to defend roberts he’s Benedict Arnold in my book.

  • Paul

    Reference Chief Justice Warren.

    I read Brown v Board of Education I.

    That is one of the worst written documents I have read (believe me I have read an awful lot of bureaucratese). Excerpt he remembered to have one imperative sentence saying Plessey was overturned one has difficulty finding meaning.

    Of course that was his first major opinion did his writing get better with time.?

    Thank you.

    Hank’s Eclectic Meanderings

  • If one looks back to an earlier period, in Jones v Opelika [319 US 584 (1942] one finds Roberts J complaining that, in some six years, the court had fourteen times reversed one or more of its earlier decisions, many of them recent. He observed that such decisions tended “to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that he opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.”

    As one particularly egregious example, a case, Minersville School District v Gobitis [310 US 586 (1940)] that was decided by a majority of eight to one, was overruled three years later in West Virginia School Board of Education v Barnette [319 US 624 (1943) by a majority of six to three. Of the six, three of the Justices (Black, Douglas & Murphy JJ) had changed their minds, two (Jackson & Ritledge JJ) were new appointments and one was the former lone dissident (Stone CJ, formerly Stone J)

    Whatever one thinks of the decision in question, such judicial capriciousness can only bring the law into disrepute. Surely, the highest court having once decided what the law is, it should be for the legislator to say what it ought to be.

  • I dunno.

    “The power to tax is the power to destroy.”

    The inexplicable Roberts fuster-cluck devastates the economy and personal liberty.

    It creates an omnipotent federal government. The law will make health costs skyrocket and hamstring the private sector.

    It will destroy jobs and consign millions to penury. It will debase the currency and lower all Americans’ living standards.

    And, they will blame Bush.

    FTSCOTUS

Obama Wants Living Constitution Theory For SCOTUS Nominee

Saturday, May 2, AD 2009

With the announced retirement of Supreme Court Justice David Souter President Obama wasted no time in addressing the issue of what he’s looking for to fill this vacancy.  In so many words he clearly stated his desire for an activist judge with an eye towards reengineering America [emphasis and comments mine].

“It is also about how our laws affect the daily realities of people’s lives [meaning he wants a Justice who holds fast to the Living Constitution Theory,ie, an activist judge finding invisible law where none existed], whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”

The following excerpt clearly reveals President Obama’s contempt for legislative history in effect eliminating a potential nominee that adheres to the theory of original intent.

“I will seek someone who understands that justice is not about some abstract legal theory or footnote in a casebook.”

One thing is for sure, it will be an extremist liberal and pro-abortion nominee.

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13 Responses to Obama Wants Living Constitution Theory For SCOTUS Nominee

  • Obama’s nominee is unlikely to be an originalist, and they will certainly uphold Roe. This does not mean, however, that Obama has contempt for legislative history or the judicial record. For starters, it’s justices like Scalia who dislike legislative history (because it’s easy to find support for almost any position in the congressional record). As to the judicial record, upholding Roe at this point is respecting the principal of stare decisis. Originalists care about the original understanding of the Constitution, and less about legislative history and the judicial record.

  • John,

    I’ll take your word on it since you’ll be barristering soon enough!

  • John,

    I forgot to mention that they do use legislative history, but not in all cases.

  • Just to be clear, ‘legislative history’ is a tool of statutory interpretation which involves looking at the Congressional record and statements from bill sponsors, etc. Scalia, as a ‘textualist’, thinks only the text of the statute should matter. Obama’s nominee is more likely to favor ‘legislative history’ than a Scalia-type nominee.

    ‘Original intent’ or originalism has to do with Constitutional interpretation; and the theory of the living constitution (which, imo, all justices adhere to in practice to one degree or another) is another theory of Constitutional interpretation.

  • Stare decisis-“To stand by that which is decided”-when we feel like it.

    Stare Decisis tends to be invoked by judges who like a prior decision and ignored by judges who believe the prior decision was a piece of judicial idiocy. Of course when a court is dealing with constitutional issues stare decisis plays less of a role because the constitution, and the correct interpretation of it, is more important than prior decisions of any court. As Roe amply demonstrates however, too often the tool of Constitutional interpretation used by the Supreme Court and many other courts might rightly be called “making it up as they go along”.

  • The doctrine of stare decisis is of limited value in constitutional matters, since erroneous court decisions cannot be rectified by subsequent legislation. While this judicial doctrine has value, the weight it merits should be inversely proportional to the degree of wrongness and degree of importance of the prior decision to which it would be applied. From the standpoint of actual legal reasoning all that Roe has in its favor is stare decisis, given that its rationale is ridiculously deficient, and that is not much. But for the reasons Don suggests, that will be enough for any Obama appointee who favors abortion rights on policy grounds. He will find the scoundrel’s refuge in stare decisis for sure.

  • As Donald and Mike describe, stare decisis tends to be arbitrarily invoked and ignored depending on the judge and the issue. The post originally read ‘Obama’s contempt for legislative history and the judicial record‘. In response, I was pointing out that Obama’s nominees would be unlikely to show contempt for the judicial record (i.e. stare decisis) with regard to Roe, rather than expressing a more general opinion about the importance of stare decisis.

  • I had never been to this blog until now. Why does this blog look so shamelessly like Vox Nova? Couldn’t you guys find another theme? Come on… 🙂

  • Katerina,

    You guys have a beautiful set up and have the best theme. We couldn’t’ find another one that was better. You guys chose the best template out there!

    Imitation is a form of flattery you know!

    😉

  • Cannot fault anyone for having good taste.

  • Yeah, the reference to “legislative history” doesn’t make sense here. “Legislative history” is a term referring to how Congress enacted a statute — committee reports, House reports, and the like. It’s not a term that refers to the Constitution. And moreover, Scalia (who is at least a “fainthearted originalist,” as he describes himself) is a huge opponent of looking to legislative history . . . his opinion is that Congress enacted whatever is actually in the law, and that it’s dangerous for judges to go beyond the law to look at what some Senate committee might have said that’s different.

  • Obama’s judges will be interested in stare decisis ONLY until they run into a case … such as what happened in Lawrence v. Texas … in which they suddenly decide to overturn precedent.

    This Weekly Standard piece from a while back explains the left’s new-found affinity for stare decisis:

    THE HEARINGS on John Roberts’s and Sam Alito’s nominations to the Supreme Court featured a Latin phrase most people hear only in connection with Supreme Court confirmations: stare decisis. Stare decisis is the legal doctrine holding that in general, an issue once decided should stay decided, and not be revisited.

    ***
    Nowadays, it is liberals, not conservatives, who talk about stare decisis in committee hearings, generally in the context of abortion. Oddly, though, it’s also liberals who want nominees to agree that the Constitution is a “living document.”

    ***
    How is it that liberals have become, simultaneously, the champions of both fidelity to precedent and an ever-changing Constitution?

    Part of the answer, of course, is that the left’s commitment to stare decisis is selective. Many of the Supreme Court’s iconic liberal decisions overruled prior case law. Brown v. Board of Education (1954), overturned Plessy v. Ferguson (1896); Gideon v. Wainwright (1963), which established the constitutional right to a free public defender in felony cases, overruled Betts v. Brady (1942); Mapp v. Ohio (1961), which applied the exclusionary rule to state court prosecutions, overruled Wolf v. Colorado (1949); and so on. Nor need we reach far back into history for such instances. Just two years ago, in Lawrence v. Texas (2003), the Court found a constitutional right to perform acts of homosexual sodomy, thereby overturning Bowers v. Hardwick, which itself was no historical relic, having been decided in 1986. Yet none of the liberals who now wax eloquent about stare decisis criticized Lawrence’s violation of that principle.

    ***
    When liberals talk about a “living Constitution,” what they really mean is a leftward-marching Constitution. Liberals – especially those of an age to be senators – have spent most of their lives secure in the conviction that history was moving their way. History meant progress, and progress meant progressive politics. In judicial terms, that implied a one-way ratchet: “conservative” precedents can and should be overturned, while decisions that embody liberal principles are sacrosanct. To liberals, that probably seemed more like inevitability than inconsistency.

  • Why does this blog look so shamelessly like Vox Nova? Couldn’t you guys find another theme? Come on… 🙂

    We had the ‘Kubrick’ theme for the first five months, but Kubrick doesn’t have the sidebar on individual posts. This made navigation less convenient and, as it turns out, meant the sitemeter was only catching about 40% of the visits. This format was the easiest to transition to from Kubrick. Plus, as Tito said, it looks good and there’s nothing wrong with flattery through imitation from time to time.