Some of the country’s finest legal minds debate the worst decisions in Supreme Court history at Pepperdine University.
By Knowles Adkisson / The Malibu Times
Top constitutional scholars converged on the campus of Pepperdine Law School last Friday for a friendly debate on a serious subject: determining the five worst U.S. Supreme Court decisions ever made.
The all-day symposium, entitled “Supreme Mistakes,” featured five nationally renowned experts, each of whom argued in one-hour mock trials for why the decision they had chosen to debate was surely the worst of all time. The event will be aired on C-SPAN.
Each scholar was paired with a responder, usually a Pepperdine law faculty member, who attempted to prove why the decision was not as bad as it seemed.
Some of the characteristics cited by scholars to identify a terrible decision included: a harmful or pernicious human or social outcome, faulty judicial reasoning, a negative and lasting effect on the later development of law, and overreaching or abdication of the Supreme Court’s power.
Three of the decisions debated-Korematsu v. U.S., Dred Scott v. Sandford and Plessy v. Ferguson-involved affirmations of racism by the Supreme Court. In another, Buck v. Bell, the court in 1927 upheld a Virginia statute mandating the compulsory sterilization of the mentally retarded. The fifth, Erie v. Tompkins, drastically altered civil procedure law and opened the justices to charges of judicial activism.
Dean Erwin Chemerinsky, of the UC Irvine School of Law, argued that Korematsu, which upheld the conviction of a Japanese-American man arrested for not submitting to an executive order by President Franklin D. Roosevelt in 1942 that relocated 110,000 people of Japanese descent into internment camps during World War II, marked the low point of judicial reasoning on the nation’s highest court. Chemerinsky cited historian William Manchester’s account of how the people affected by the order, 70,000 of them American citizens, were given 48 hours to dispose of their homes, businesses and furniture, while their investments and bank accounts were forfeited.
“The only basis for detaining individuals during World War II was their Japanese ancestry. There was no individualized suspicion, there was no probable cause about any person. This mistake should never [happen] again,” Chemerinsky said.
Pepperdine Law Professor Bob Pushaw, in his role as responder, countered that the courts always give the president more power during wartime for purposes of national security. Pushaw said that while Roosevelt knew most Japanese-Americans were loyal, a small group of saboteurs “only had to succeed once” to inflame the fear of the American public. Pushaw suggested the same consideration applied today in the U.S. government’s prosecution of suspected terrorists.
But Chemerinsky, who since 2002 has represented a man detained at Guantanamo Bay who has never received a trial or hearing, dismissed that suggestion as unconstitutional.
“How the president chooses to wage war on the field of battle is not something the court should review,” he said. “But that’s very different from incarcerating individuals in the United States solely on the basis of race.”
Professor Dan Farber of UC Berkeley argued that Dred Scott ranks as the worst Supreme Court decision ever. The 1858 decision made slavery legal in the western territories of the country, overturning the 1820 Missouri Compromise, which limited slavery to regions south of the latitude 36°30′. Farber said the decision, in which Chief Justice Roger B. Taney wrote that African Americans had “no rights which any white man was bound to respect,” arguably caused the Civil War.
Since most of the decisions discussed Friday are almost universally regarded as bad law (Yale University Professor Akhil Amar quipped he could disprove Plessy v. Ferguson “in five minutes”) several of the scholars ignored the responders in favor of touting why the case they had chosen bested the others for incompetence. They appeared to enjoy the bickering, much as baseball fans would debate the worst bloopers in World Series history.
But though the event was an intellectual exercise, legal historians Ted White and Paul Finkelman concluded the symposium by assuring the audience that the lessons derived from the exercise were important.
“We should be training people to be aware of the pitfalls of law, the pitfalls of judicial hubris, the pitfalls of judicial history,” Finkelman said.
White noted that the U.S. Constitution, as a document, embodies the principles of all that Americans believe themselves to be.
“So when the Supreme Court, to which we’ve delegated the power to be authoritative in the interpretation of this document, gets it fundamentally, transcendentally wrong, then that’s a lesson for us. It’s a lesson as to what the Constitution is capable of doing in the hands of a small number of people.”