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.
Comments
Post a Comment