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Commentary & Opinion

Stephen Gottlieb: Worst Supreme Court Decisions In Two Decades

What’s the worst thing the U.S. Supreme Court has done in two decades?

Bush v. Gore? The very name evokes tragedy.  Thousands dead in Iraq for a war we shouldn’t have fought. Thousands more dead in Afghanistan because the Supreme Court’s choice for president sent military support to Iraq instead. The Court’s presidential choice also encouraged savage, predatory business behavior that we’re still paying for. It put off any reckoning with the environment for a decade, more if you include the House of Representatives’ current intransigence.

That’s quite a record for a single U.S. Supreme Court decision. You might have to go back to Dred Scott v. Sanford which helped bring on the Civil War to match the impact of Bush v. Gore, although if we go back that far, disasters you’ve probably never heard of, like U.S. v. Cruikshank and the ironically named Civil Rights Cases, were responsible for a century of murder and mayhem with impunity in the segregated south. But Bush v. Gore certainly ranks with the biggest – and worst.

Another? You’re thinking Citizens United v. Federal Election Commission? That’s the one that said corporations are people, money is speech and the first amendment means we have to choke on all their greasy dribble. There are multiple proposed amendments to repeal it – the Tester Amendment, the Udall Amendment, the McGovern Amendment and Amend 2012. Obama and major independent citizens’ organizations all called for reversing Citizens United by constitutional amendment.

Citizens United made it easier to flood the airwaves with false, malicious garbage that candidates can deny because it didn’t come from them. Aside from forcing candidates to address the campaign garbage problem, it’s harder to identify the effects of Citizens United. Supporters of the two parties had to work harder to raise lots of money to sling and catch campaign garbage, but beyond the bonanza for campaign media consultants, what else? In fact the parties have more or less kept pace with each other’s spending, corporate spending included. That the parties and their supporters had to work harder to get all that money probably changed their messages, but that’s harder to measure because everyone’s doing it, so what’s the baseline of clean elections to measure against?

No actually I have another candidate for the worst of the worst – although it’s hard to rival Bush v. Gore, but that was the Rehnquist Court and mine is the Roberts Court. Try League of United Latin American Citizens v. Perry, a mouthful often referred to as LULAC. Got you there, haven’t I? But LULAC is why the House of Representatives is much less representative of the American people than the Senate is, even though the malapportionment of the Senate is grossly unfair, giving the smallest states as many votes as the largest. The House of Representatives is supposed to reflect the majority of the people but it doesn’t. Republicans and the Tea Party have power in the House of Representatives far out of proportion to their unpopularity with the American public. Right-wing Republicans can think they’re popular only because they’ve kicked all opposition out of their districts. For that you have to thank LULAC, in which the Supreme Court was asked to rule on a mathematical test for gerrymandering. Gerrymandering takes election returns and rejiggers them so that the losers win. But the Court refused. Can you imagine how bad this country would be if the majority of the people actually elected the people’s House? To paraphrase what Republicans used to demand about a Chief Justice they didn’t like, Impeach John Roberts.

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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