When the Court traded law and liberty for political expediency by SEAN J. ROSENTHAL.

What makes a Supreme Court decision bad? And what are the worst precedents handed down by our highest court?

I’ve been thinking about this a lot recently, and here are my nominees for the worst SCOTUS opinions to date.

The standard I’m using for “worst” is three-fold:

• First, the holding of the case is unambiguously still guiding precedent.
• Second, the holding of the case is inconsistent with the Constitution.
• Third, the case either A) has egregious consequences for individual liberty or B) is clearly ideological- or policy-driven rubbish as a matter of constitutional law (whether or not I happen to like the consequences).

Under the first prong, I will exclude from consideration a number of infamously horrific decisions: Dred Scott (ruling black people aren’t citizens), Plessy v. Ferguson (allowing separate-but-equal), Buck v. Bell (permitting compulsory sterilization), and Korematsu v. United States (upholding Japanese internment camps).

Dred Scott and Plessy have been clearly overruled. Buck and Korematsu may not be technically be overruled, but I think the reason is just that a similar case hasn’t provided the opportunity. I may be wrong about that for Buck andKorematsu — I hope not — but I am making the assumption that they’re not good law anymore.

Using the second and third prongs, I think the case that wins the “honor” for the worst active Supreme Court decision in American history is Helvering v. Davis (1937). Helvering upheld the constitutionality of Social Security on the basis that Congress has a general power to spend on whatever it deems to be in the general welfare.

This ruling completely upended the system of enumerated powers, in which Congress only had the powers delegated to it by the Constitution, and eviscerated the Tenth Amendment that restricted the federal government to its defined roles.

Since Helvering, Congress can spend money on anything it wants, facilitating the welfare state and the immense growth of the federal government in the last 80 years. If I had to make a rough estimate, I’d say about 75% or more of the spending currently done by the federal government relies on this holding inHelvering, making the overwhelming majority of what the federal government does unconstitutional.

Thus, Helvering is the central case that flipped the system from limiting the government to what is explicitly allowed to permitting anything that isn’t explicitly banned — effectively ending federalism.

Here are various runners-up, in approximately chronological order:

1. Slaughter-House Cases / United States v. Cruikshank (1873 / 1875)
   Rulings: Eviscerated the Privileges or Immunities Clause of the 14th Amendment, preventing the Amendment from broadly protecting individual rights to this day.
2. Chae Chan Ping v. United States (1889)
   Ruling: Upheld the Chinese Exclusion Act on the basis that Congress has an inherent power to restrict migration into the United States, despite Congress not actually being enumerated this power.
3. Hans v. Louisiana (1890)
   Ruling: Declared that the symbolic meaning of the 11th Amendment prevents citizens from suing their states, even though the text makes no such reference, and thus inadvertently damaged the 4th Amendment by foreclosing the most effective means of enforcing it.
4. Home Building & Loan Association v. Blaisdell (1934)
   Ruling: Allowed states to alter banking contracts after the fact and thus effectively eliminated most of the Contracts Clause that prevents states from impairing private contractual obligations.
5. United States v. Carolene Products / Williamson v. Lee Optical (1938 / 1955)
   Rulings: Removed virtually all protection for unenumerated rights, particularly economic liberties, and granted the government nearly unlimited power to blatantly and unambiguously promote special interests at the expense of the public.
6. Wickard v. Filburn / Gonzales v. Raich (1942 / 2005)
   Rulings: Allowed Congress’s power to regulate interstate commerce to be used to regulate purely local and essentially non-commercial activities, and thus empowered Congress to regulate essentially anything it wants.
7. Baker v. Carr (1962)
   Ruling: Declared that a “One Person, One Vote” standard is essential to democracy, despite the fact that the Constitution doesn’t follow OPOV in elections for the Senate or the presidency; facilitated gerrymandering by requiring every state to redo its districts every census to comply with OPOV.
8. Jones v. Alfred H. Mayer Co. / Runyon v. McCrary (1968 / 1976)
   Rulings: Declared that Congress’s power to ban slavery includes a broad power to ban virtually anything that could conceivably be deemed discriminatory, including private individuals refusing to sell private houses or admit students to private schools based on race, and thus transformed the power to stop slavery into a broad power to restrict private and voluntary choices.
9. Buckley v. Valeo (1976)
   Ruling: Granted broad deference to Congress on campaign finance restrictions that limit political speech, despite the 1st Amendment’s core protection being for political speech.
10. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)
    Ruling: Granted administrative agencies broad deference in creating regulations based on administrative interpretations of laws and thus granted administrative agencies of the executive branch broad lawmaking powers.
11. McCleskey v. Kemp (1987)
    Ruling: Declared that Georgia’s application of the death penalty did not violate its victims’ Equal Protection rights, despite admitting that racism played a substantial role in determining who received the death penalty and, by implication, insulated the entire criminal justice system from any obligation not to be discriminatory in effect or operation.
12. Morrison v. Olson (1988)
    Ruling: Allowed Congress to create an independent counsel with the power to investigate and prosecute people independent of the president, even though the president is vested with executive power, and prosecutions are purely executive powers.
13. Kelo v. City of New London (2005)
    Ruling: Declared that using the power of eminent domain to take property from poorer people and give the property to large corporations (who pay more taxes) to be a “public use” under the Takings Clause of the 5th Amendment.
14. NFIB v. Sebelius (2012)
    Ruling: Allowed Congress to force people to buy health insurance from private companies on the basis of the regulation being a “tax,” by implication allowing Congress do virtually anything with the taxing power that no independent power, even the expansive Commerce Clause, would allow.

I could think of a few other cases, but I feel like the worst ever and 14 runners-up are at least a pretty good start.

Feel free to disagree with any choice and add your own nominees for badly decided cases in the comments.

Sean J. Rosenthal

Sean J. Rosenthal graduated from Georgetown University with a major in history and mathematics in 2011. He will be graduating from Boston University School of Law with a J.D. and an LL.M. in Banking and Financial Law in May 2015.

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