What do Constitutional law professors do when the Supreme Court is not in session? This past year it seems they talked about mistakes the court has made in the past. This past year two different law reviews held symposiums on, depending how they titled the issue, “Supreme Mistakes” (volume 39, no. 1 Pepperdine Law Review) or “The Worst Supreme Court Case Ever(?)” (volume 12, no. 3 Nevada Law Journal). If one wanted to go a little further back you could include Prof. Jamal Greene’s article “The Anticanon” (125 Harv. L. Rev. 379 (2011) as also covering the same territory.
As you would expect the articles spend a great deal of effort explaining exactly what makes a bad Supreme Court opinion and why the opinion that particular author chose is the worst. The Pepperdine symposium is novel in that it has an author lay out the reason why an opinion is bad and then another author defends the opinion in question. Pepperdine’s parade of horribles is made up of the usual suspects: Dred Scott, Plessy, Buck v. Bell, Korematsu, and surprisingly, Erie v. Tompkins(!) Professor Greene’s list is similar with the exception that Buck and Erie are left out and Lochner is included. None of the cases discussed at the Pepperdine symposium are startling for being on the list. The articles defending each one become rather redundant; except for Korematsu the best reason these cases are not so bad is that they all result from the particular historic moment which birthed them. Korematsu has that defense as well as the historic deference the court has been willing to extend to the President in his role as Commander-in-Chief and the pass the President receives during war-time. In the closing essay of this issue Professor G. Edward White tells us that the defense of historic context is not good enough. A truly terrible case cannot only be horrible historically, it must have been considered bad at the time it was handed down.
The Nevada Law Journal’s symposium is a little more open-ended. None of the usual suspects appear; in fact few well-known cases are listed. The familiar ones include Bush v. Gore, Ashcroft v. Iqbal, and Hustler v. Fallwell. To my mind the fact that these article focus on more obscure cases and the reasoning (or lack thereof) behind them make many of their choices as the worst Supreme Court case more convincing. The stories and rationales are more personal to each of the authors. The reasons provided for why each case is the worst varies as much as the cases themselves. Some are considered to be the worst due to the result, some for reasoning, and still others for just how the court handled the case. Personally my favorite is Carnival Cruise Lines v. Shute (the only case selected by two authors) in which the court upheld a choice-of-law forum printed on the cruise passenger’s ticket. I like it because it involves three subjects I did well in; Civil Procedure, Contracts, and Constitutional law, and I like cruises.
There is no doubt that criticizing and critiquing the Supreme Court is a constitutional scholar’s greatest joy; the equivalent of a sports fan second-guessing his favorite team’s manager.