Although it has a reputation as a Temple of Justice, the US Supreme Court has made some horrendous decisions.
In some eras of our history, the US Supreme Court has been the worst enemy of freedom and justice in America. For much of American history, the Court failed people of color, blacks, working people, and many others.
In fact, Supreme Court decisions led to some of the worst injustices in American history. Jim Crow Segregation, in particular, would not have existed with the Supremes’ blessing.
Unfortunately, many people still view the US Supreme Court as a sacred institution dedicated to justice. A brief history can debunk that mythology and show the threat an all-powerful Supreme Court poses to ordinary Americans.
The Ugly History of the US Supreme Court
The best way to expose the Supreme Court’s ugly history to examine its worst decisions. Some of the worst US Supreme Court decisions include:
Dred Scott v. Sandford 1857
Many historians think this case, popularly known as the Dred Scott Decision, helped trigger the Civil War.
Scott, a slave, claimed he was free because he had lived in Illinois (a free state) and the Louisiana Territory. Scott’s master, however, disagreed and kept him in bondage in Missouri.
To elaborate, Scott’s attorneys maintained their client was free because the Compromise of 1820 forbid slavery in the Louisiana Territory (the modern Great Plains States). In addition, they claimed the Northwest Ordinance banned slavery in Illinois and other states north of the of Ohio River and east of the Mississippi.
In Dred Scott v. Sandford, the US Supreme Court ruled Scott was not eligible for citizenship because he was a negro (of African descent) and a descendant of slaves. In addition, the Court ruled that both the Northwest Ordinance and the Compromise of 1820 were unconstitutional.
Moreover, Chief Justice Roger B. Taney concluded the Fifth Amendment gave Americans “right to own slaves” in his Dred Scott opinion. Taney’s opinion angered many Americans because it implied laws banning slavery in Northern and Western states were unconstitutional.
Some Dred Scott critics, including Abraham Lincoln, though the decision was part of a larger plot to expand slavery throughout the Union. Lincoln’s views echo modern conspiracy theories about the Federalist Society and Republican court packing efforts. See US Senator Sheldon Whitehouse’s (D-Rhode Island) recent rants on The Al Franken Podcast for a good example of the Federalist Society conspiracy theory.
One result of Dred Scott was to drive many moderate northerners and westerners into the anti-slavery Republican Party. Less than three years after Scott, voters elected Lincoln president and gave Republicans majorities in both houses of Congress.
The Republican victory led to succession, the formation of the Confederacy, and the outbreak of Civil War. Tellingly, the Supreme Court delivered the Scott decision on 6 March 1857. On 12 April 1861, Confederate artillerymen began the Civil War by firing on the Union Army base at Fort Sumter, South Carolina.
Plessy vs. Ferguson 1896
Plessy was the worst of several cases that provided a legal basis for Jim Crow Segregation.
In the case, Homer Plessy sued the State of Louisiana to stop enforcement of the Separate Car Act. The Act required railroads to maintain separate cars for black and white passengers on all trains. Lawyers for Plessy, who was black, and the railroads claimed the Separate Car Act violated the 14th Amendment, which gave African Americans citizenship.
In a seven-to-one decision, the Supremes ruled the Separate Car Act was constitutional. Thus, it was legal for governments to force citizens and organizations to segregate and discriminate because of race. Hence, Plessy v. Ferguson provided the legal basis for the Jim Crow Apartheid system in the South.
Lochner v. New York 1905
This case is not as infamous n as Plessy, but it was almost as nasty. In Lochner, the Supremes ruled laws limiting the hours organizations could require employees to work were constitutional.
In the case, Joseph Lochner challenged a New York State law called the Bakeshop Act. The Act limited the hours bakers could work to 60 hours a week and 10 hours a day.
Lochner’s attorneys claimed New York State violated the 14th Amendment by fining him for having bakers work over 60 hours a week. Lochner claimed the 14th Amendment gave him a right to contract with employees the state could not interfere with.
Five of the nine justices agreed with Lochner and invalidated the law. Historians think Lochner v. New York set labor law back decades by making it illegal for states to regulate work conditions. It was not until the New Deal of the 1930s, that the 40-hour week became the law of the land.
Schenck v. United States 1919
Schenck is probably the worst US Supreme Court decision you have never heard of.
In Schenck, the Supremes ruled it was Constitutional for the federal government to imprison a US Citizen for exercising his First Amendment right to free speech by expressing a legitimate political opinion. To explain, Schenck v. United States the Court upheld a federal law called The Espionage Act of 1917.
The Espionage Act of 1917 had nothing to do with spying. Instead, it regulated speech during World War I. President Woodrow Wilson’s (D-New Jersey) administration charged Charles Schenck and Elizabeth Baer of violating the Espionage Act.
Their crime was to distribute pamphlets that alleged the World War I draft was unconstitutional under the 13th Amendment. To elaborate, the 13th Amendment bans slavery. Schenck and Baer alleged the draft was slavery and unconstitutional. Hence, nobody had an obligation to obey the conscription laws.
Schenck and Baer’s opinions were legitimate free speech. However, the Wilson administration viewed them as a threat to national security and had the two arrested. A federal court convicted the two who appealed to the Supreme Court.
In a unanimous decision, the Supremes found the Espionage Act constitutional. Illogically, Justice Oliver Wendell Holmes compared Schenck and Baer’s pamphlets to falsely shouting “fire! in a crowded theater.” Bizarrely, the Court’s ruling came a year after the war. By then, the draft was over and most of the drafted men had returned to civilian life.
Schenck is one of the most frightening Supreme Court Decisions because it is the basis of the modern security state. Notably, federal prosecutors are using the Espionage Act against critics of the security state, such as Edward Snowden and Julian Assange.
Buck vs. Bell 1927
Buck vs. Bell is one of the most notorious US Supreme Court decisions. References to this case have appeared everywhere, from the Nuremberg Trials to TV dramas such as Law & Order.
In Buck vs. Bell, the Supremes ruled it was Constitutional for the Dominion of Virginia to sterilize a woman because she was poor. Notably, the author of the Buck vs. Bell opinion was Oliver Wendell Holmes, the genius behind Schenck.
Regarding Carrie Buck, Holmes wrote “Three generations of imbeciles are enough.” Holmes believed he was preventing America from being “being swamped with incompetence.”
The damage from Buck vs. Bell was vast. Author Adam Cohen estimates the decision allowed state governments to sterilize up to 70,000 Americans. In addition, historians think the US sterilization effort inspired a far worse program in Nazi Germany. Cohen notes that eugenics, the ideology that inspired Holmes, also motivated the Nazis.
Frighteningly, some legal scholars think Buck vs. Bell still stands and allows forced sterilization in the United States. Buck vs. Bell is still in force because the Supreme Court never overturned it.
Korematsu v. United States 1944
There are several myths about Korematsu, but the decision was horrendous.
First, the Supreme Court did not rule that President Franklin D. Roosevelt’s (D-New York) internment of Japanese Americans in what FDR himself called “concentration camps” was Constitutional. Instead, the Supremes unanimously declared the internment policy unconstitutional in a case called Endo v. Eisenhower or Ex parte Endo. Note: the Eisenhower referenced here is Milton Eisenhower, General Dwight D. Eisenhower’s older brother, who served briefly as head of the federal agency in charge of the internment camps.
In Korematsu the Court ruled it was Constitutional for federal authorities to arrest and prosecute people violated who violated FDR’s order to report to internment camps. Hence, the court ruled it was unconstitutional to keep Americans in camps but constitutional to force them into camps. Ironically, the Supreme Court delivered the Korematsu and Endo decisions on the same day.
In Korematsu, Supremes ruled the internment order, Executive Order 9066, was Constitutional because of military necessity. However, there was no evidence to back that argument. Three members of the court dissented. One dissident, Justice Robert Jackson, compared the court opinion by Justice Hugo Black to the logic of Soviet dictator Vladimir I. Lenin.
Disturbingly, Korematsu is still theoretically the law of the land in America. Like Buck v. Bell, the Supreme Court has never overturned Korematsu.
Kelo v. New London 2005
In Kelo, the US Supreme Court ruled it was constitutional for local governments to seize citizens’ property and sell it to private corporations.
In a five to four decision, the Supremes ruled it was Constitutional for the City of New London, Connecticut, to seize Susette Kelo’s family home, and give it to a real estate developer. The Justices’ reasoning was that such takings are fine as long as they took the property for “economic development.”
The case, Kelo v. New London , was a watershed because it marked the beginning of a new era at the Supreme Court. In the early 21s Century, the Supremes began putting the interests of corporations over the rights of citizens. Since, Kelo such takings have tapered off because of public anger. However, this horrendous decision is still the law of the land.
Citizens United v. Federal Election Commission 2009
Citizens United is probably the most unpopular US Supreme Court decision since Roe v. Wade.
In Citizens United, the US Supreme ruled a law preventing corporations and labor unions from funding campaign propaganda was constitutional. In particular, the Supreme Court ruled the Federal Election Commission (FEC) violated the First Amendment by preventing a group called Citizens United from distributing a propaganda film called Hillary: The Movie.
Critics allege Citizens United allows organizations to spend unlimited amounts of money in political campaigns. In addition, candidates have no control over that money. Many critics blame Citizens United for the flood of “dark money” corrupting American politics. Another criticism is that Citizens gave corporations undue influence in politics.
In recent years, several presidential candidates have promised to only nominate Supreme Court justices who pledge to overturn Citizens United. Like Kelo, the Citizens’ decisionextends corporate power.
Shelby County v. Holder 2013
Critics allege this decision gutted the Voting Rights Act of 1965. The Voting Rights Act required the US Justice Department to review and approve changes to state and local electoral laws. They designed the Act to prevent the suppression of black voters.
In Shelby County, five justices ruled that the Voting Rights Act of 1965 was unconstitutional. Hence, local and state governments could implement any voting restrictions without federal review.
Critics blame Shelby County for the rising wave of voter suppression laws across the country. The Brennan Center alleges that 18 states passed 30 laws that will make it harder to vote in the first half of 2021. In addition, politicians introduced over 400 voter restriction bills in 49 state legislatures in the first half of 2021, the Brennan Center estimates.
Hence, the United States Supreme Court’s reputation as a defender of our freedoms is overblown. In reality, the Supreme Court has a long history of upholding and defending laws that violate ordinary people’s rights and protect the powerful.