Chapter One Introduction

“We have long suffered under base prostitution of

law to party passions in one judge, and the imbecility of another.”

—Thomas Jefferson The Constitution of the United States was, and as

amended is, an excellent document. It is the oldest written

constitution still in force in the world and has been used as a model for the constitutions of many other nations.

Although I generally agree with the views of Justice Marshall, expressed in his opinions and expressed in the foreword to this series, I disagree with his view that the Constitution was defective from the start. Of course it had defects. Some of the major defects were quickly corrected by passing the first ten amendments known as the Bill of Rights in 1791, just two years after the Constitution went into effect. The First Amendment, which includes the right to free speech and the right to freedom of religion, was light years ahead of the standards of other nations at the time, and is still far ahead of the standards of human rights throughout most of the world today.

Most of the problems cited by Justice Marshall stem from those whose duty it is to interpret the Constitution:

the nine justices of the Supreme Court, and not from the document itself.

For example, Justice Marshall cites Dred Scott v. Sandford in his foreword. In that case, the Supreme Court ruled that slaves and former slaves were not citizens of the United States. Justice Marshall blames the Framers of the Constitution for the Dred Scott decision (see Chapter Fourteen).

However, nowhere in the Constitution does it state that Americans of African descent are not citizens of the United States. The Constitution defines "We the People" of the United States as the number of "free Persons" residing in the States. Slavery was recognized in the Con-stitution as part of a compromise to form this nation. In the document, slaves were to be counted as three-fifths of a free person for the purposes of representation in Congress. However, at the time the Constitution was written there were a significant number of Negro free Persons.   These   citizens   were   allowed   to   vote.  The Supreme Court should   have recognized  free African-Americans as citizens. The majority of the justices of the Supreme Court who ruled in the Dred Scott case were from the slave states, and their biases and prejudices shaped the opinions that they wrote. I blame the members of the Supreme Court for the Dred Scott decision, not the Constitution. Although we are a nation of laws, not men, it takes men (and women) to interpret those laws. The Supreme Court's erroneous decision in the Dred Scott case, not the Constitution, led to the War Between the States. Concerning women's rights, Justice Marshall implied that the Constitution was defective in that it denied women the right to vote. Nowhere in the Constitution does  it state  that only men had the right to vote.  As withthe rights of Negroes, the Supreme Court, with no constitutional basis, unanimously ruled in 1875 that women did not have the right to vote (see Chapter Eighteen). And that was after the Fourteenth Amendment, with its equal protection clause was enacted. It took the Nineteenth Amendment, which overturned that decision of the Supreme Court to clarify the Constitution and to man- date that women had the right to vote.

I agree with Justice Marshall that too much effort is now being spent waving the flag and printing the Constitution on fast food placemats. The major thrust of this book is to examine the worst twenty or so decisions of the Supreme Court, out of thousands of cases, so that we can avoid making similar mistakes in the future.

Black Mondays

The title to this book was selected because most of the Supreme Court's decisions are announced on Monday. This has been so for most of the court's history. In recent years, however, the court's backlog has made it necessary to issue some decisions on other days of the week.

Criteria for Selection of Cases

Numerous associations and law professors were asked for nominations of the Supreme Court's “worst decisions.” In order to qualify for inclusion in this book, a case had to have been poorly reasoned as well as had a major impact on the freedoms of American citizens. In a few cases the Supreme Court admitted that it had erred in its decision in an earlier case. In others, such as the Japanese Internment case, later actions of Congress and overseas reactions made it clear that the decision was overruled by the “court of history.”

Most cases never reach the Supreme Court. Many of the worst decisions of courts come at the lowest levels. Many of those cases are not appealed. In addition, the Supreme Court declines to review thousands of cases every year. Although a denial of review can be a horrendous decision, I only considered cases when the Supreme Court granted review and issued an opinion in a case. Hundreds of cases were considered and the list was narrowed to twenty-four.

Most of the cases selected for inclusion in this book had strong dissenting opinions. Some were close cases (five to four) and very few were unanimous. The unanimous decisions tended to rely on a series of earlier cases where the court tended not to focus on the express language of the Constitution.

What Potter Stewart said of pornography-he could not define it but "knew it when he saw it”—applies to an attempt to define the worst decisions. Both are in the minds of the readers. One man's pornography is another man's art. What is a bad decision for one person might be good decision for another.

Concerning the pornography decisions of the court, unlike other areas of law, it was very difficult to single out one case that...Continue Reading