A Stitch in Haste

I recently posited a quick litmus test for determining whether someone is a libertarian.

Well, here's a test to see whether someone is a libertarian or a conservative: Review this Human Events list of the supposed "Top 10 Supreme Court Decisions That Should Be Reversed" and see how many you agree with. A conservative would agree with all or most of them; a libertarian would scratch his head at many of the choices (not all, but most).

Speaking of litmus tests, I suppose that, to be a proper (i.e., dogmatic) conservative, it's mandatory that Roe v. Wade top any such list. Ditto probably for Lawrence v. Texas being an automatic Number Two.

In any case, here is my list (in descending order) of the ten worst Supreme Court decisions that are still good law. See if you can sense a pattern. And if you like my list more than the Human Events list, then congratulations — you're a libertarian and not a conservative.

1. McCulloch v. Maryland, 17 U.S. 316 (1819)
--Rendered the Necessary and Proper Clause an expansion of, rather than a limitation on, Congressional power and laid the groundwork for changing the default standard of judicial review from strict scrutiny to mere rationality.

2. The Slaughterhouse Cases, 83 U.S. 36 (1872)
--Rendered the Fourteenth Amendment Privileges or Immunities Clause a nullity and delayed the incorporation of the Bill of Rights to apply to the states and not just to the federal government.

3. Wickard v. Filburn, 317 U.S. 111 (1942)
--Rendered the Commerce Clause a nullity (or, worse, a monstrosity) and initiated the entire federal regulatory leviathan.

4. University of California Regents v. Bakke, 438 U.S. 265 (1978) and progeny, especially Grutter v. Bollinger, 539 U.S. 306 (2003)
--Rendered the Equal Protection Clause a nullity in the context of higher education by permitting reverse discrimination in college admissions in the name of creating "diverse" environments.

5. Kelo v. New London, No. 04-108 (2005)
--Rendered the "public use" clause of Fifth Amendment eminent domain a nullity.

6. Buckley v. Valeo, 424 U.S. 1 (1976) and progeny, especially McConnell v. Federal Election Commission, 540 U.S. 93 (2003)
--Rendered the First Amendment less than absolute in the context of campaign advertising and financing.

7. Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980)
--Reinforced the rendering of the First Amendment less than absolute in the context of truthful commercial advertising.

8. The Supreme Court's Entire Fourth Amendment Jurisprudence
--Almost every search-and-seizure case the Court hears results in a new exception to the Fourth Amendment. Exceptions become the rule, and the rule becomes the exception. The Fourth Amendment may not yet be a nullity, but it is essentially a "Swiss Cheese" amendment, since it is now so full of holes.

9. Korematsu v. U.S., 323 U.S. 214 (1944)
--Elevated the War Power of Congress and the Commander-in-Chief Power of the Executive above the Fifth Amendment Due Process Clause in the context of national security. Note that Korematsu is, technically, still good law; it was never expressly overturned. That is not to say that we are likely to bring back internment camps any time soon. On the other hand, given the current Administration's cavalier attitude toward civil liberties in a time of threats to national security (i.e., war), the legacy of Korematsu must not be forgotten. (See also this post.)

10. Baker v. Nelson, 409 U.S. 810 (1972)
--A non-case by the Court, technically a "dismissal for want of a substantial federal question." This non-ruling, issued shortly after Loving v. Virginia, 388 U.S. 1 (1967), is occasionally used, incorrectly, to assert that the Supreme Court has expressly held that there is no constitutional right to same-sex marriage. That is patently false; for details, see my previous post. This non-ruling has been rendered a nullity by other Supreme Court cases that have clarified and expanded upon Loving, especially Zablocki v. Redhail, 434 U.S. 374 (1978), but still gives anti-gay bigots a tool, albeit a blunt one, when attempting to confuse the issue.

Special Bonus Case:

11. Bush v. Gore, 531 U.S. 98 (2000)
--I include Bush v. Gore not because I believe it was incorrectly decided, but rather because in my view the Court should have declined, on political question grounds, to hear the case at all. Taking the case seriously damaged the Court's reputation, especially in the eyes of those who were upset that the Court prevented fraudulent Gore voters from stealing the election. Had the Court sidestepped the issue, the election would still have gone (correctly) to Bush, since the Florida legislature (or, if necessary, the House of Representatives) would have sided with Bush anyway. The Court should not have sullied itself by involving itself with that unfortunate incident.

Hat tip to Rossputin — but be sure to read my response to his view that the famous "Footnote 4" of U.S. v. Carolene Products, 304 U.S. 144 (1938) is the worst Supreme Court decision of all time.