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Bad decisions from history

 

These cases are chosen as examples not because a handful of bad decisions can define the quality of every decision the courts make, but instead to illustrate that the courts can, with the stroke of a pen, cause immeasurable pain, and to illustrate that this is nothing new.

 

Historic Case Number One, Dred Scott v. Sandford, 1857

 

In the Civil War, over 600,000 Americans died in uniform.  CourtZero does not have a crystal ball to know whether or not Congress and the states would have resolved their differences and abolished slavery without a civil war, but the Supreme Court guaranteed that war when it decided Dred Scott, taking the issue away from the voters and the states.

 

Mr. Scott was a slave.  He moved (or rather, his master moved with him) to Illinois, a free state.  After that they moved to Missouri, a slave state.  Missouri’s law, however, declared that once a man was free, he was always free.  Mr. Scott sued to be once again free, as he had been under the law in Illinois.  His courage is astounding, especially when one remembers that he had complained of being beaten in his suit, and eventually lost.

 

The Supreme Court was not content just to decide against Mr. Dred Scott and to uphold his slavery and that of his wife.  He had already complained of being beaten.  The Court went on to declare that the requirement for new western states to be admitted to the Union was unconstitutional.  This was an incorrect and activist view of the Constitution, and made it impossible for any solution other than a war that killed 2 % of the country’s population.

 

 

Historic Case Number Two, Plessy v. Ferguson, 1896

 

After the Civil War and the passage of the 14th Amendment, which requires “equal protection under the law”, Homer Plessy, who was one-eighth black, was arrested for refusing to leave a railroad car that prohibited colored people.  The Court decided that this treatment was not unconstitutional, despite the post-war amendments, and declared that the doctrine of “separate but equal” was the law of the land.

 

Some might be sympathetic to the court because of the climate of the times, but that sympathy would ignore the fact that the post-war amendments specifically addressed how the law was to treat racial differences.  The Plessy court simply ignored the Constitution, saying that “a statute which implies merely a legal distinction between the white and colored races…has no tendency to destroy the legal equality of the two races.”  That is not profound reasoning in the face of the 14th Amendment. 

 

The Court’s “separate but equal” doctrine gave legitimacy to every Jim Crow law, and allowed segregation to expand into every possible setting until it was set in concrete.  CourtZero’s crystal ball can not tell if the Jim Crow laws would have died in time of their own obsolescence, but does know that the Court guaranteed that bigots could always find legitimacy from the highest court in the land. 

 

The dissenting opinion noted that the law should be color-blind.  What pain might the nation had avoided if the law truly had been color-blind as early as 1896?  We doubt that affirmative action would be an issue today if the Plessy Court had not been an activist, anti-constitutional court.

 

Historic Case Number Three, Rowe v. Wade, 1973

 

Roe v. Wade hardly needs an introduction.  Everybody knows that it means that abortion-on-demand is legal in the United States.  We challenge everyone to actually read the opinion.  The Court used the 14th Amendment (which was designed to protect Blacks from unfair laws and which had been disregarded in the Plessy case) to say that a white woman has a right to terminate the life of her unborn child.  We at CourtZero know that Roe v. Wade is a lightning rod, and that people hold passionate and genuine points-of-view on both sides of the issue.

 

That does not mean that Roe is a good court decision.  First, it does not do a good job at all at explaining how it found a right that is not spelled-out in the Constitution.  Second, the decision does say that the whole reasoning of Roe was out the window when an unborn child reached viability, but did not describe how the law should treat viable fetuses or how courts should deal with advances in medical technology making fetuses viable earlier and earlier in pregnancy.

 

Third, and most important, the court simply did not consider whether or not the unborn had any rights.  Given that this decision was such a landmark, and such a departure from law up until that point, one would think that they would first give us good reasoning for the notion that an unborn child is not a person, therefore possesses no rights.  The Court didn’t bother with an explanation for that at all, but instead began with the conclusion and worked backward.  In their reasoning, the existence of the developing human to be aborted was not even considered. 

 

CourtZero’s crystal ball can not tell what states might have laws allowing or prohibiting abortion today if not for Roe v. Wade.  CourtZero does know that those who are passionate about the protection of the unborn have been bound and gagged, legally and socially, and that a radical social change was forced upon the nation before it was ready for it. 

 

If you have suggestions for other historic cases to be included, send mail to postmaster@courtzero.org