The Five Worst Supreme Court Decisions of All Time, but One is a Lie
Sterilization, Slavery, Racism, Internment, and, um, Filmmaking?
Unless you’ve been under a rock or <gasp> don’t have a Facebook profile, you’ve no doubt seen the latest “which of these ten concerts did I really not go to” craze. I love corny Facebook crazes as much as the next guy, but I’m not really a concert person. Plus, short of Tupac (the non-Coachella-hologram version) returning from the grave and going on tour, I probably will never be one.
I am, however, a big fan of podcasts. I particularly enjoy podcasts about politics, history, and the U.S. legal system. Something to provide a little brain food for my daily commute. One such podcast is Radiolab’s fantastic mini-series, More Perfect.
Thus, my interest was piqued when my wife told me about an episode of NPR’s Fresh Air podcast titled, “The Supreme Court Ruling That Led to 70K Forced Sterilizations.” Despite being familiar with the decision in the notorious case of Buck v. Bell — the case referenced in the title of the podcast — from my law school classes, I didn’t know much about the facts, background, or parties involved. The podcast is primarily a discussion with Adam Cohen, an author who wrote a book about the case. Even considering the depressing subject matter, dealing with eugenics and the forced sterilization of a mentally challenged woman, I was largely enjoying the podcast. And then, in response to a question about the worst Supreme Court cases in history, the author says this to the interviewer:
And when the Supreme Court has gone astray, it’s been in cases like Dred Scott, where the strong were allowed to say that the weak, that Dred Scott, a slave, was not allowed to sue for his own freedom, in Plessy v. Ferguson, where the strong were allowed to say that black people had to sit in, you know, the colored section of a railroad, in Korematsu v. the United States, when the government was able to say, round up all the Japanese and put them in internment camps. And we see it in things like Citizens United — just a tendency over and over again to side with the strong rather than the weak.
Yes, you read that right. In answering a question about the worst Supreme Court decisions in the history of the United States, the author includes Citizens United v. Federal Election Commission as part of his impromptu listing of deplorable cases. I realize that my opinion of Citizens United as being correctly decided is not a popular one. My Sisyphean attempts to rehabilitate this often misunderstood and universally hated Supreme Court decision have largely fallen on deaf ears. However, to mention Citizens United in the same breath as these other four cases is just unfathomable to me.
The podcast begins with a message from the sponsor of the episode:
Support for this NPR podcast and this message come from MSNBC, because facts have never been more important…
I agree, facts are important. So, let’s dive into the facts of all five of these cases, shall we?
Buck v. Bell, 274 U.S. 200 (1927)
Facts: The petitioner in this case, Carrie Buck, became pregnant at age 17 as a result of being raped. Pregnant and unmarried, she was committed, by her foster family, to the Virginia Colony for Epileptics and Feeble-Minded on the grounds of feeblemindedness, incorrigible behavior, and promiscuity. After delivering the baby, she was forcibly sterilized under the Virginia Sterilization Act of 1924.
Holding of the Court: Forced sterilization by the government does not violate the Constitution.
The Court Really Said That?: “ Three generations of imbeciles are enough.”
Dredd Scott v. Sandford, 60 U.S. 393 (1856)
Facts: The plaintiff in this case, Dredd Scott, was born a slave in 1795. In 1830, Scott was sold to a U.S. Army surgeon named Dr. John Emerson. Because of Emerson’s position in the Army, Scott was taken to, and lived in, many free (non-slave) states including Illinois, Wisconsin, and Missouri. In Missouri, Emerson leased out Scott for profit, which was in violation of the Missouri Compromise. Scott sued for his freedom based on his presence and residence in free territories.
Holding of the Court: Because Scott was a descendant of slaves, he was not a citizen, and therefore had no standing to sue.
The Court Really Said That?: “Every citizen has a right to take with him into the Territory any article of property which the Constitution of the United States recogni[z]es as property. The Constitution of the United States recogni[z]es slaves as property, and pledges the Federal Government to protect it. And Congress cannot exercise any more authority over property of that description than it may constitutionally exercise over property of any other kind.”
Plessy v. Ferguson, 163 U.S. 537 (1896)
Facts: The plaintiff in this case, Homer Plessy, bought a ticket for, and sat in, a “whites only” car on the East Louisiana Railroad. After refusing to vacate his seat when asked, he was arrested for violating Louisiana law.
Holding of the Court: The law was not unconstitutional because the Fourteenth Amendment of the Constitution was designed to enforce equality among the races, not to abolish distinctions made on the basis of color.
The Court Really Said That?: “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
Korematsu v. United States, 323 U.S. 214 (1944)
Facts: The petitioner in this case, Fred Korematsu, was a Japanese-American living in California during World War II. In 1942, by executive order and with the aid of the military, President Franklin Roosevelt authorized the internment of Japanese-Americans into “relocation camps.” Korematsu refused to obey the command to relocate and was convicted under federal law.
Holding of the Court: Internment of Japanese-Americas was constitutional because the Country was at war with Japan and, in times of war, the Court must show deference to Congress and military authorities.
The Court Really Said That?: “It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice.”
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
Facts: Citizens United, a conservative nonprofit organization, wanted to air a documentary that was critical of Hillary Clinton, a Democrat candidate for President, in the weeks leading up to the 2008 Democrat primaries. Because of existing campaign finance law (i.e the McCain-Feingold Act), this was prohibited. Under the McCain-Feingold Act, this documentary would have been considered an “electioneering communication.” Corporations and nonprofit corporations (such as Citizens United) were prohibited from such communications within 30 days of a primary election. Citizens United sued, challenging the prohibition as unconstitutional.
Holding of the Court: The portion of the law prohibiting corporations and labor unions from making independent expenditures, such as the electioneering communications at issue in the case, violated the First Amendment’s protection of free speech.
The Court Really Said That?: (I couldn’t really find any objectionable quotes, so here’s my favorite quote instead.) “Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content.”
Seriously, you don’t have to be a lawyer to pick out the one that doesn’t belong in that group of cases. And, if you are a lawyer, I’m sure there’s an “impermissibly suggestive lineup” joke in there somewhere.
Listen, I understand that people have strong feelings about Citizens United. Although I disagree, I understand why some people would think that it was wrongly decided. But can it really be said with a straight face that it was one of the worst cases of all time? If we just look at the facts, Citizens United was a case about not being able to air a negative documentary about a political candidate…not a case about racial prejudice or forcing sterilization or internment on an American citizen. In other words, in all four of the other cases, there was a clear victim that did not receive justice. Who didn’t receive justice in the Citizens United case?
I can hear people that disagree with me answering that last question with a resounding “us” or “the American People.” Although I think that sentiment is profoundly overstated, it would be disingenuous for me not to address the argument that the legal ramifications of Citizens United are what make it so horrible, not the facts.
On that front, even if you think that the Citizens United decision will at some point usher in a new age of money in politics and ruin the very core of our republic, this has not yet happened. Having an advantage in campaign funding and expenditures simply does not guarantee victory. In the 2016 Presidential Election, Donald Trump raised less campaign money and spent less campaign money than Hillary Clinton (by a large margin), yet still won. Clinton even received far more support from Super PACs, the evil spawn of the Citizens United decision that were going to help decide every election until the end of time. The other four cases had immediate, awful ramifications. Citizens United isn’t even in the same ballpark.
Lastly, the author on the podcast described all five cases as examples of the Court siding with “the strong rather than the weak.” As I’ve argued before, Citizens United actually assists “weaker” outsider candidates against “stronger” well-known incumbents. It is nearly impossible for lesser-known candidates to compete with the name recognition and free media of incumbent candidates without, sometimes sizeable, independent support.
Wherever your opinion falls with regard to Citizens United, I hope the next time you hear somebody say that it was “the worst decision ever,” you will at least ask them how they feel about the forced sterilization of rape victims.
