More Worst Supreme Court Decisions (part III, if you’re counting).

A few years ago, I wrote two (1, 2) postings about the worst Supreme Court decisions ever (and as I noted here, one of those [Bowers] has since then been overturned). I think it’s about time to add to the pantheon.

• Ex parte Quirin has not really attracted much attention since being decided over sixty years ago, until it became a key part of the D.C. circuit’s endorsement of the Bush administration plan to try suspected terror suspects by military tribunal (full text). Quirin is a bad decision because the presumed facts were not true and the SCOTUS didn’t look carefully enough at the case to determine whether the executive branch was lying. A cautionary tale that doesn’t seem to be tied to any one administration.



• Wickard v. Fillburn. Another case that is unlikely to be recognized by anyone except first year con-law students, or those of us cursed with the memory of that class. (I had Jim Chen. He thinks he’s very clever. And maybe he is, maybe he is.) Anyway, so Wickard. Congress has a very limited number of ways they can set national policy; they are primarily set out in Article I, section 8 of the U.S. Constitution. The primary way that Congress justifies its lawmaking is through their power to regulate interstate commerce. Before the New Deal, attempts by Congress to butt in were pretty much held in check (except for some bizarre exceptions, see my previous for the description of In re Debs, for example). But after Roosevelt threatened to expand and pack the court, decisions that used to go 5-4 against congressional power to get into the economy started running the other way. Wickard was the case that moved this trend into the ‘absurd’ category. The Agricultural Adjustment Act set quotas for crop production and penalties for exceeding those quotas in an attempt to prop up prices. Mr. Filburn ran a little dairy farm in Ohio and grew some wheat to feed his cows during the winter. When the feds busted him for growing too much wheat, he appealed all the way to the Supreme Court, maintaining that Congress had no power to tell him what to do on his farm, since he certainly wasn’t involved in Interstate Commerce. The result? Tough luck, Mr. Filburn, you can be regulated because whether you sell it or not there’s a national market for wheat. So why is this a bad decision? Well, for starters, it authorizes the federal government to do terribly intrusive things to people in the name of commerce power, when there is no commerce happening at all. Also, the modern SCOTUS has curtailed much of the expansion of the commerce clause through such cases as US v. Lopez (this invalidated the Gun-Free Schools Act) and U.S. v. Morrison (declared the Violence Against Women Act unconstitutional) this case still is good law. I wonder why, hrm. Could it be that conservatives will follow their theory if it means that they can invalidate laws that they disagree with but won’t follow the same theory if it might mean that laws such as, oh, drug laws make it through? I really wonder (I recommend this analysis of Wickard and the commerce clause in the context of the Raich decision; I don't agree with everything he says but it's well written and hits most of what I have a problem with).



• The Civil Rights cases (1883). Another in the ‘you’ve probably not heard of it but it sucks nonetheless’ series. So, recall what I said above about the limited number of powers given to Congress. The fourteenth amendment was a critical post-Civil War amendment that guaranteed that people no matter their color had a right to citizenship and the due process and equal protection guarantees that go along with that. This amendment went a long way towards correcting the awful Barron v. Baltimore decision I talked about four years ago (and I shall not get into the rather silly selective incorporation doctrine that has finally gotten around to making these guarantees actually mean something). However, it has a little clause at the end of it:
  

  Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

  
  That seems clear, doesn’t it? Not to the Supreme Court. The Civil Rights cases held that Congress did not have the power to enforce civil rights legislation under this amendment against any entity except the Federal or State government. Which meant that the 1875 Civil Rights Act was unconstitutional. It guaranteed that:
  

  "all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude"

  
  These cases set back the Civil Rights movement about 90 years, when similar language was passed and upheld in the Civil Rights Act of 1964 under… you guessed it, the commerce clause. Oh, and the Civil Rights cases were upheld as recently as 2000, when the Supreme Court reaffirmed them in the Morrison case. To sum up: a tortured reading of the commerce clause, ok. A straightforward reading of the Fourteenth amendment, not ok. All in a day's work for our court of last resort.