Worst. Supreme. Court. Ever.
The U.S. Supreme Court is destroying our democracy. They've been at it now for more than two decades. Only Congress can undo the damage the court has done and continues to do. Will they? Don't hold your breath.
Dred Scott v. Sanford, that was a pretty bad Supreme Court decision.
Chief Justice Roger B. Taney put his inhumanity on display for the world to see when he wrote in his decision that people of African descent were “an inferior order and altogether unfit to associate with the white race.... They had no rights that the white man was bound to respect.” Taney's cruelty knew no bounds, as evident by his statement in the decision that “[t]he Negro might justly and lawfully be reduced to slavery for his own benefit.”
Taney's racism isn't the only reason why Dred Scott is an historically bad court decision. At the time, that sentiment was not just prevalent, it was pervasive -- primarily in the southern states but not unusual in so-called free states, where slavery was and in many cases always had been illegal. What makes the case one of the greatest miscarriages of justice in our nation's history is that it was not decided on sound legal grounds -- or any legal grounds at all. It was completely political. (Read more about the case here.)
The case came before the court just prior to the inauguration of James Buchanan in March 1857. Buchanan is said to have exerted undue influence on Associate Justice Robert Cooper Grier, a "Northerner," to join the southern majority to avoid the appearance of the court deciding along regional lines. Republicans at the time accused Taney of informing Buchanan of the decision prior to its official announcement.
The first part of the decision found that Scott wasn't a "citizen of a state," and in fact no person of African descent could be considered a citizen. That precluded federal diversity jurisdiction, yet the court still ruled on the case. It found Congress acted beyond its authority when it enacted the Missouri Compromise, which declared Missouri -- the state in which Scott originally sought to be declared a free person -- a free state. (Scott had resided for many years in what was then the territory of Wisconsin and what is now the state of Minnesota.)
This marked only the second time the court had ruled that an act of Congress was unconstitutional, following Marbury v. Madison in 1803. According to the court, declaring a slave free once the slave had migrated to a free state violated the Fifth Amendment by depriving property owners of their rights.
Lastly, the court supported the Missouri Supreme Court's ruling that Scott and his family were not free once they returned to Missouri, where their owner at the time in question resided. (The woman who owned the Scott family at the time subsequently sold them to her brother, who resided in New York.)
As despicable as the decision appears to most people today, it's true horribleness stems from the fact that it was decided for completely political reasons rather than legal ones. Taney (and Buchanan and other slavery-supporting Democrats) believed Dred Scott would decide the matter of slavery in the U.S. once and for all. Instead, the decision had the opposite effect: it emboldened the Republicans and other slavery opponents, divided the Democrats along sectional lines, and ultimately led to the Civil War.
'They all belong behind bars'
In a March 8, 2012, article on the Newsreview.com site entitled "Top 10 Worst Supreme Court Decisions," Jack Highton claims Dred Scott is the court's biggest injustice. As bad as the Dred Scott decision was, there have been even-greater crimes perpetrated by the Supreme Court in its long history. The dubious distinction of justices at their most awful goes to a much more recent court-ordered calamity: Bush v. Gore in 2000.
Vincent Bugliosi, who passed away on June 6 at the age of 80, is best known as the long-time Los Angeles County Deputy District Attorney who prosecuted the Charles Manson murder trial. But his more lasting legacy may be his essay published in The Nation on January 18, 2001, entitled "None Dare Call It Treason." That essay was later expanded in the book, "The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President."
Writing about the five justices who comprised the majority in the 5-4 Bush v. Gore decision, Bugliosi said the following:
"[T]hese five Justices have gotten away with murder, and I want to do whatever I can to make sure that they pay dearly for their crime. Though they can't be prosecuted, I want them to know that there's at least one American out there (and hopefully many more because of this article) who knows (not thinks, but knows) precisely who they are. I want these five Justices to know that because of this article, which I intend to send to each one of them by registered mail, there's the exponential possibility that when many Americans look at them in the future, they'll be saying, 'Why are these people in robes seated above me? They all belong behind bars.'"
Bugliosi examines the decision as a prosecutor investigating a crime. He destroys the "legal" grounds on which the majority based their decision: that the flawed voting process in Florida constituted a violation of the Fourteenth Amendment's Equal Protection Clause. The Equal Protection Clause protects people whose fundamental rights have been infringed, particularly when the people are members of a suspect class, such as African Americans (strict scrutiny, requiring a "compelling" government interest); gender (intermediate scrutiny, requiring an "enhanced rational basis"), or the least-scrutinized tier, when the government merely must show a rational basis for the discrimination.
Voting is a fundamental right, but as Bugliosi asks, whose rights were the court protecting? Not the voters whose ballots were challenged in the Florida recount. Their votes were ultimately voided. You protect their right to vote by tossing out their votes? The only person who would be harmed by counting the undervotes was George W. Bush. Bush's legal team raised the Equal Protection issue as one of three arguments against continuing the recount during the early stages of the legal proceedings. As Bugliosi writes:
"The proof that the Court itself knew its equal protection argument had no merit whatsoever is that when Bush first asked the Court, on November 22, to consider three objections of his to the earlier, more limited Florida recount then taking place, the Court only denied review on his third objection--yeah, you guessed it, that the lack of a uniform standard to determine the voter's intent violated the equal protection clause of the Fourteenth Amendment. Since the Court, on November 22, felt that this objection was so devoid of merit that it was unworthy of even being considered by it, what did these learned Justices subsequently learn about the equal protection clause they apparently did not know in November that caused them just three weeks later, on December 12, to embrace and endorse it so enthusiastically? The election was finally on the line on December 12 and they knew they had to come up with something, anything, to save the day for their man."
Bugliosi masterfully destroys every so-called legal basis for the decision. It comes down to this: The five conservative justices made a political rather than legal decision to ensure the Republican candidate won the White House. Bugliosi closes his essay thusly:
"That an election for an American President can be stolen by the highest court in the land under the deliberate pretext of an inapplicable constitutional provision has got to be one of the most frightening and dangerous events ever to have occurred in this country. Until this act--which is treasonous, though again not technically, in its sweeping implications--is somehow rectified (and I do not know how this can be done), can we be serene about continuing to place the adjective 'great' before the name of this country?"
A litany of politically motivated Supreme Court decisions
Things have only gotten worse in the aftermath of the epically bad Bush v. Gore ruling. It's telling that three of Highton's 10 worst Supreme Court decisions were handed down in this century. In addition to Bush v. Gore, there's FDA v. Brown & Williamson Tobacco in 2000, which found that the FDA had no right to regulate tobacco as a drug; and the infamous Citizens United v. FEC case of 2010.
In a June 9, 2015, review of New York University legal scholar Burt Neuborne's new book entitled Madison's Music, AlterNet's Steven Rosenfeld lists the "eight gigantic problems caused by decades of misreading the founding document of American democracy." Here they are in a nutshell:
1) Spending money is not a form of speech, you black-clad idiots!
2) You have taken away our vote by creating a class of rich and influential "supercitizens" whose money renders our franchise worthless.
3) You prohibit states from enacting laws to implement taxpayer-financed campaigns.
4) You have destroyed century-old rules preventing undue corporate influence on elections.
5) You have cemented the two-party monopoly by giving the parties complete control over the nomination process.
6) You have restricted the right to open primaries only to the Democrats and Republicans; third parties are thus prevented from gaining the support of independent voters and disillusioned Democrats and Republicans.
7) You allow the power elite to control the redistricting process.
8) You are rationing access to the political process by allowing the power elite to throw up obstacles that prevent poor people from registering and voting.
Could the tide finally be turning?
The rich own Congress. The rich own the Supreme Court. You could even argue that the rich control the Executive Branch. But there are some hopeful signs. In a June 15, 2015, article in The Nation, William Greider notes that by blocking President Obama's Trans-Pacific Partnership trade agreement (at least temporarily), House Democrats may have signaled that they're preparing to return to their historic role as the champions of "working people and economic justice."
(Paul Krugman likewise senses a shift in the Democratic party away from the "center" and toward more progressive stances, as AlterNet's Janet Allon writes in a June 15, 2015, article.)
Greider claims that "[w]e are in deeper trouble than either political party will acknowledge (it would sound unpatriotic)." Could we be witnessing the beginning of the end of the Imperial Presidency that began with FDR? If so, the transition promises to be bumpy. As Greider states, "[e]stablished powers will feel threatened and try to derail these popular rebellions." However, there's no other way to "retreat from some of [the] most arrogant and dangerous illusions" in our nation's history.
We need a Supreme Court that will base its decisions on the rule of law rather than on politics. We need a Congress with the courage to impeach Supreme Court justices whose flawed decisions indicate incompetence -- if not outright treason. But most importantly, we need an electorate willing to, in Greider's words, "seek political power and act again like citizens."