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. Continue reading