# When has the Supreme Court messed up? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [November 8, 2006, 3:17pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559 "2006-11-08T15:17:40Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![FormerMarineGuy](https://avatars.discourse-cdn.com/v4/letter/f/65b543/32.png) [@FormerMarineGuy](https://boards.straightdope.com/u/FormerMarineGuy)\ **Post date:** [November 8, 2006, 3:17pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/1 "2006-11-08T15:17:40Z")
Although there will be factual answers here, I am putting this in IMHO because I am expecting opinions and varying point views here. From my simple and basic understanding of our government, the purpose of the U.S. Supreme Court is to interpret the Constitution of the United States. In what situations and circumstances has the Supreme Court of the United States misinterpreted the Constitution? ---
**Author:** ![Mouse\_Maven](https://avatars.discourse-cdn.com/v4/letter/m/ac91a4/32.png) [@Mouse\_Maven](https://boards.straightdope.com/u/Mouse_Maven)\ **Post date:** [November 8, 2006, 3:30pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/2 "2006-11-08T15:30:12Z")
The Supreme Court supported Franklin D. Roosevelts [Executive Order 9066](http://en.wikipedia.org/wiki/Executive_Order_9066) at the begining of WWII. Making it “legal” to hold Japanese-Americans in detainment camps. I can’t find more info here at work, but [A People’s History of the Supreme Court](http://www.amazon.com/Peoples-History-Supreme-Court/dp/0140292012/sr=8-1/qid=1162999695/ref=pd_bbs_sr_1/002-6969195-5635219?ie=UTF8&s=books) is an excellent resource. ---
**Author:** ![ivylass](https://avatars.discourse-cdn.com/v4/letter/i/9de053/32.png) [@ivylass](https://boards.straightdope.com/u/ivylass)\ **Post date:** [November 8, 2006, 3:30pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/3 "2006-11-08T15:30:59Z")
Kelo v. New London in recent memory. I believe the Dred Scott decision is also one that has not held up under the harsh light of history. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [November 8, 2006, 3:57pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/4 "2006-11-08T15:57:31Z")
[Plessy vs Ferguson](http://en.wikipedia.org/wiki/Plessy_v._Ferguson) stands out. ---
**Author:** ![AHunter3](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ahunter3/32/368_2.png) [@AHunter3](https://boards.straightdope.com/u/AHunter3)\ **Post date:** [November 8, 2006, 3:58pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/5 "2006-11-08T15:58:43Z")
_Plessy v Ferguson_ ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [November 8, 2006, 5:01pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/6 "2006-11-08T17:01:41Z")
Since the OP is asking about decisions that arguably misinterpret the Constitution, not simply those that have been harshly judged in the light of history, how about the grandaddy of them all – _Marbury v. Madison_? Although the principle of judicial review has become fundamental to our way of government, the Consitution does not identify the Supreme Court as the ultimate arbiter of a legislative act’s constitutionality. ---
**Author:** ![Doctor\_Who](https://avatars.discourse-cdn.com/v4/letter/d/ed8c4c/32.png) [@Doctor\_Who](https://boards.straightdope.com/u/Doctor_Who)\ **Post date:** [November 8, 2006, 5:33pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/7 "2006-11-08T17:33:09Z")
I don’t want to start a partisan shitstorm, but I’ll nominate _Roe v. Wade_ (and the cases subsequently interpreting it, e.g. _Casey_). In my opinion, the SCOTUS could have put the whole abortion debate to bed. Instead, they produced an opinion that relies on questionable Constitutional analysis and bizarre logic. Penumbras? Are you serious? It would have been much better and IMO sounder to have based the whole case on an unenumerated right to privacy illustrated by the Ninth Amendment. Please note: I am trying _really_ hard to avoid discussing whether the end result of Roe was “correct” or “incorrect” so as not to hijack the heck out of this thread. I’m just arguing that the reasoning of the opinion is IMO so bizarre as to be a potential misinterpretation of the Constitution. ---
**Author:** ![FormerMarineGuy](https://avatars.discourse-cdn.com/v4/letter/f/65b543/32.png) [@FormerMarineGuy](https://boards.straightdope.com/u/FormerMarineGuy)\ **Post date:** [November 8, 2006, 5:36pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/8 "2006-11-08T17:36:59Z")
[QUOTE=Doctor Who] Please note: I am trying _really_ hard to avoid discussing whether the end result of Roe was “correct” or “incorrect” so as not to hijack the heck out of this thread. I’m just arguing that the reasoning of the opinion is IMO so bizarre as to be a potential misinterpretation of the Constitution. [/QUOTE] To everyone so far. I appreciate what has been submitted so far, it is teaching me a lot. **Doctor Who** , the reason I kept this out of GQ is because I figured a lot of these cases will still be considered correct decisions in the minds of some, and will probably create some sort of debate. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [November 8, 2006, 5:39pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/9 "2006-11-08T17:39:23Z")
It may not be the most popular thing to say, but Brown v. Board of Education is laughable in its application of the Constitution. Because segregation imposes psychological harm on kids it is unconstitutional? Segregation may have been unconstitutional (and there is a lot of debate about this), but if it was unconstitutional, it’s ridiculous to say it was because of its psychological effects on kids. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [November 8, 2006, 5:46pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/10 "2006-11-08T17:46:45Z")
Bush v. Gore, 531 U.S. 98 (2000). ---
**Author:** ![FormerMarineGuy](https://avatars.discourse-cdn.com/v4/letter/f/65b543/32.png) [@FormerMarineGuy](https://boards.straightdope.com/u/FormerMarineGuy)\ **Post date:** [November 8, 2006, 5:55pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/11 "2006-11-08T17:55:21Z")
[QUOTE=Giles] Bush v. Gore, 531 U.S. 98 (2000). [/QUOTE] Without researching Bush v. Gore, I recall that this vote was strictly along ‘party’ lines in the Supreme Court. If the case were reversed, i.e. Gore v. Bush, would it still have been along party lines and Gore would have won the state? ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [November 8, 2006, 6:07pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/12 "2006-11-08T18:07:19Z")
Bowers v Hardwick (upholding sodomy laws) Baker v Nelson (“no federal question” raised by same-sex marriage suit) ---
**Author:** ![Rocketeer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rocketeer/32/4437_2.png) [@Rocketeer](https://boards.straightdope.com/u/Rocketeer)\ **Post date:** [November 8, 2006, 6:50pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/13 "2006-11-08T18:50:21Z")
The Dred Scott decision. Chief Justice Roger Taney, a southerner, used the case as a springboard for a sweeping justification for slavery. However, from what I understand, his decision was inconsistent with the law and extended way beyond the actual scope of the case. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [November 8, 2006, 7:18pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/14 "2006-11-08T19:18:58Z")
[QUOTE=Rocketeer] Chief Justice Roger Taney, a southerner, used the case as a springboard for a sweeping justification for slavery. However, from what I understand, his decision was inconsistent with the law and extended way beyond the actual scope of the case. [/QUOTE] Two aspects of Taney’s opinion were prima facie absurd. One was his finding that Congress had no power to ban slavery in the territories, despite the Constitution’s explicit grant of power to make “all needful rules and regulations” for such. The other was his insistence that an African American, _whether enslaved or free_, could never be a citizen of the United States, which he conjured out of thin air. Neither finding was necessary to decide the case, even for a judge determined to decide it against Scott. ---
**Author:** ![Bridget\_Burke](https://avatars.discourse-cdn.com/v4/letter/b/7cd45c/32.png) [@Bridget\_Burke](https://boards.straightdope.com/u/Bridget_Burke)\ **Post date:** [November 8, 2006, 7:46pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/15 "2006-11-08T19:46:03Z")
[QUOTE=FormerMarineGuy] Without researching Bush v. Gore, I recall that this vote was strictly along ‘party’ lines in the Supreme Court. If the case were reversed, i.e. Gore v. Bush, would it still have been along party lines and Gore would have won the state? [/QUOTE] Perhaps you could do a bit of research. Here’s Wikipedia’s summary, as background: [Bush v. Gore - Wikipedia](http://en.wikipedia.org/wiki/Bush_v._Gore) This is from an opinion piece: > [@](#): > > No one, not even the most enthusiastic supporter of Governor Bush’s campaign, should feel entirely comfortable with the result in Bush v. Gore. If I am right about what the Supreme Court did, then the best that can be said is that the Court trumped the supposed lawlessness of the Florida Supreme Court with lawlessness of its own. As I have suggested, I do not believe the United States Supreme Court had adequate reason to suspect the Florida Supreme Court of a nakedly partisan effort to “steal” the election. But the more troubling question is whether, even if the Justices view of the Florida Supreme Court was correct, they were justified in acting without really being concerned about whether they had a sound legal basis for doing so. > > Judges, like everyone else, sometimes act on instinct. That is inevitable and, as I said at the outset, often unobjectionable, within limits. But a close election is sure to inflame partisan passions and skew judgment in a partisan direction. That makes it all the more important for judges to hesitate, to question their own motives, and to make sure that their judgments have a solid basis in the law before they act. That may be a lot to expect. But if there is any court of which we should expect it, it is the United States Supreme Court. In Bush v. Gore, a majority of the Court, prompted by a general and unjustified sense that something needed to be done, plunged in, splintered along ideological lines, and played a prominent role in deciding the election. This was not a triumph for the rule of law [http://press-pubs.uchicago.edu/sunstein/chapter9.html](http://press-pubs.uchicago.edu/sunstein/chapter9.html) Surely there are essays out there proving that Bush v. Gore was a shining moment in jurisprudence. Perhaps someone else will post one for you. ---
**Author:** ![The\_Scrivener](https://avatars.discourse-cdn.com/v4/letter/t/eada6e/32.png) [@The\_Scrivener](https://boards.straightdope.com/u/The_Scrivener)\ **Post date:** [November 8, 2006, 8:02pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/16 "2006-11-08T20:02:18Z")
Admittedly a second-tier outrage, and you’ll want a lawyer to expound on this, but in two cases in the 1870’s-'80’s SCOTUS established a precedent for considering [public only? or all?] corporations as “legal persons”. This paved the way for many regrettable excesses of corporate power. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 8, 2006, 8:26pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/17 "2006-11-08T20:26:59Z")
[QUOTE=flurb] Since the OP is asking about decisions that arguably misinterpret the Constitution, not simply those that have been harshly judged in the light of history, how about the grandaddy of them all – _Marbury v. Madison_? Although the principle of judicial review has become fundamental to our way of government, the Consitution does not identify the Supreme Court as the ultimate arbiter of a legislative act’s constitutionality. [/QUOTE] To quote _America: The Book_, prior to _Marbury_ SCOTUS only had the power to check laws for spelling and punctuation. Eight of the thirteen colonies incorporated judicial review into their constitutions by about 1790, which suggests that the Framers do not mention judicial review because it was implicitly accepted. Remember, Congress can, in theory, withdraw the Court’s appellate jurisdiction over just about anything if it so wishes, thanks to the Exceptions Clause. ---
**Author:** ![FormerMarineGuy](https://avatars.discourse-cdn.com/v4/letter/f/65b543/32.png) [@FormerMarineGuy](https://boards.straightdope.com/u/FormerMarineGuy)\ **Post date:** [November 8, 2006, 8:37pm UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/18 "2006-11-08T20:37:36Z")
[QUOTE=Bridget Burke] Perhaps you could do a bit of research. Here’s Wikipedia’s summary, as background: [Bush v. Gore - Wikipedia](http://en.wikipedia.org/wiki/Bush_v._Gore) This is from an opinion piece: [http://press-pubs.uchicago.edu/sunstein/chapter9.html](http://press-pubs.uchicago.edu/sunstein/chapter9.html) Surely there are essays out there proving that Bush v. Gore was a shining moment in jurisprudence. Perhaps someone else will post one for you. [/QUOTE] Sorry if I sounded extra ignorant on the matter. I am sure I could do a lot of research on all of the cases, but I was unable to at the time (work). As I read the posts, I am researching each case. Knowledge is power. ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [November 9, 2006, 12:30am UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/19 "2006-11-09T00:30:58Z")
If nothing else, _Bush v. Gore_ should be suspect because neither Thomas nor Scalia reclused themselves (at the time, Thomas’ wife was working on Bush Administration applications, and Scalia’s sons were lawyers working for Bush). I recommend [_A Layman’s Guide to the Supreme Court Decision in Bush v. Gore_](http://www.electric-escape.net/node/648) as a starting point. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 9, 2006, 4:06am UTC](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559/20 "2006-11-09T04:06:06Z")
> [@](#): > > Two aspects of Taney’s opinion were prima facie absurd. One was his finding that Congress had no power to ban slavery in the territories, despite the Constitution’s explicit grant of power to make “all needful rules and regulations” for such. The other was his insistence that an African American, whether enslaved or free, could never be a citizen of the United States, which he conjured out of thin air. > > Neither finding was necessary to decide the case, even for a judge determined to decide it against Scott. Taney also established the precedent of the Supreme Court having the broad power to overturn acts of Congress. While the _Marbury_ decision had established the legal foundation for this power, it had only been used invoked in a very limited way and had laid dormant for decades (the _Dred Scott_ decision was the first decision since _Marbury_ to invoke it). Taney’s decision revived the practice and greatly expanded it. Every person who’s complained about judical activism since then has Taney to thank. [Next page](https://boards.straightdope.com/t/when-has-the-supreme-court-messed-up/379559.md?page=2)