Top ten lists and rankings are very popular online: the best Presidents, the worst Presidents, the best-looking celebrities, best and worst athletes and sports teams. With the recent death of Supreme Court Justice Antonin Scalia and the battle shaping up over whether Barack Obama should appoint his successor, I decided to jump in with my list of the three worst Supreme Court Justices of all-time (in chronological order). Scalia, of course makes my list. I hope social studies teachers find this especially useful. They can involve students in creating their own lists based on clear criteria supported by evidence.
My criteria are significant influence and negative impact, which leaves out justices like John Rutledge, James Byrnes, and Thomas Johnson who each served for slightly more than a year, and Clarence Thomas who appears to have virtually no influence. For a more judicial discussion of the Supreme Court appointment process I recommend "Supreme Court Nominations: Questions and Answers" on the History New Network.
Article 3 section 1 of the United States Constitution lists no qualifications for judges other than "good behavior" while in office. However, Supreme Court Justices are expected to defend the principles of the Constitution and the primacy of law, even when laws run counter to their own ideological views. The three Supreme Court [in]justices that I pick as the worst in United States history each placed their own ideology ahead of the Constitution and the law. The first two, Roger Taney and Henry Billings Brown, are primarily remembered for one opinion each that helped institutionalize racism in the United States. Antonin Scalia did not have one landmarked bad decision. Instead his career on the court was marked by a continuous war against the Constitutional government and rule by law. Something all three of these judges shared was immense arrogance about their right to reshape then law.
Roger Taney was the Chief Justice of the United States Supreme Court from 1836 until 1864. The court decision and his majority opinion in the 1857 Dred Scott v. Sandford case helped to bring on the American Civil War. In this case the court ruled for the re-enslavement of Dred Scott, a Black man and former slave from Missouri who claimed to be free. Taney could have limited the scope of the court's ruling to Dred Scott's status alone, but he decided that this was his opportunity to defend and expand slavery in the United States.
Previously in a concurring opinion written for Prigg v. Pennsylvania (1842), Taney established his pro-slavery bias. He defended what he considered the constitutional guarantee of slaveholders' rights to ownership and the duty of states to enforce federal fugitive slave laws.
But Taney earned his spot on the worst list because of his majority opinion written for the Dred Scott case where he declared that people of African ancestry, whether enslaved or free, could never become citizens of the United States and because of this where not able to sue in federal court. Taney and the court also overturned the 1820 Missouri Compromise ruling that the federal government did not have the power to prohibit slavery in its territories and that because enslaved Africans always remained property, enslavers were free to bring them anywhere in the United States, including into free Northern states.
In his majority opinionin Dred Scott v. Sandford, Taney wrote:
"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who . . . form the sovereignty, and who hold the power and conduct the Government through their representatives . . . The question before us is, whether the class of persons described in the plea . . . [people of African ancestry] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States . . . [T]herefore, it is the judgment of this court, that . . . the plaintiff . . . is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction."
Henry Billings Brown is remembered for the majority opinion he wrote in the 1896 Plessy v. Ferguson case establishing the principle of "separate but equal" and making Jim Crow segregation the law of the land in the United States for the next half century. Somehow Brown decided that separate public facilities did not violate Constitutional principles of equal protection of the laws guaranteed by the 14th amendment as long as "equal" facilities and services were available to other citizens. This position justified racially segregated schools, buses, trains, restaurants, hotels, and the United States military. It was reversed by the 1954 Brown v. Topeka, Kansas Board of Education decision but was not fully overturned until passage of the 1964 Civil Rights Act.
Defending racial segregation, Brown wrote:
"Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."
Brown was a man of multiple biases and did not just use the courts to deny rights to African Americans. He bolstered his position on the worst justices list with his majority opinion in the 1901 Downes v. Bidwell case and by his vote with the majority in Lochner v. New York (1905). In Downes, Brown wrote that the 14th amendment right of citizenship was limited to people born or naturalized in the United States but not to people in its overseas colonies, especially if they were members of "alien races" and lived in areas where American forms of government would be "impossible."
In Lochner v New York, by a 5 to 4 vote, Supreme Court threw out a New York State law establishing a ten-hour work day and a 60-hour work week for bakery employees. The Court majority said the law, designed to protect workers from exploitation, was an "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract." The Lochner decision has been used as a precedent in cases challenging the ability of the federal government to regulate wages, hours, and working conditions and the rights of labor unions.
Antonin Scalia, who died last week, was a man of narrow-minded bigotry that he papered over with a theory of jurisprudence he called textualism and original intent.
Scalia claimed, "I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. I'm not very good at determining what the aspirations of the American people are . . . If you want somebody who's in touch with what are the evolving standards of decency that reflect a maturing society, ask the congress." However, as applied by Scalia, this judicial theory meant that since he was smarter than everybody else and very argumentative, the other justices should agree that words of the Constitution mean want he wants them to mean.
Scalia's closed mindedness extended to religious beliefs that he tried to impose on others through his position on the Supreme Court. It seems not only was he better than everyone else at interpreting the Constitution but also at understanding the Christian Bible. Although he claimed to be a devote Roman Catholic, Scalia rejected the Vatican II reforms of Pope John XXIII and only attended churches that still used the Latin mass. In a 2013 interview Scalia attributed evil in today's world, or at least the things he saw as evil, to the devil who Scalia charged was responsible for a decline in religious belief. According to Scalia, "In the Gospels, the Devil is doing all sorts of things. He's making pigs run off cliffs, he's possessing people and whatnot ... What he's doing now is getting people not to believe in him or in God. He's much more successful that way."
One of Scalia's most twisted arguments was his concurring position as part of the Citizens United majority that tossed out a federal law restricting corporate donations to political campaigns. For Scalia, corporations are entitled to the same rights as people including "corporate speech." The Citizens United decision allows wealthy individuals like the Koch brothers and powerful businesses to dominate United States elections through money "donated" to "independent" political action committees.
Scalia claimed his vote was in "conformity" with the First Amendment because "Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals" and corporations as legal "individuals" are entitled to equal protection of the law. Scalia concluded, "to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate."
Some of Scalia's other more outrageous and injudicious statements made over the years include:
On due process: "I'm not about to give this man who was captured in a war a full jury trial."
On racial equality: "It does not benefit African-Americans to -- to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less -- a slower-track school where they do well."
On the death penalty, choice, and same-sex marriage: "The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state."
On equal rights for people who are gay: "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"
Scalia had the ability to be completely blind to his own hypocrisy. He criticized the Court's decision recognizing same-sex marriage because "To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation." However he had no problem when five members of the group of nine determined the winner of the 2000 Presidential election putting George Bush into office.
President Obama will now nominate a replacement for Scalia on the Supreme Court. I would love to see a liberal activist in the mold of William Douglas, Thurgood Marshall, or Ruth Ginsberg but it is unlikely a Republican controlled Senate would even allow this nomination to go to the floor for a vote. However I would be glad to settle for a moderate and responsible justice like Earl Warren, appointed by Republican president Dwight Eisenhower in 1953, or William Brennan, appointed by Eisenhower in 1956.
Warren, while Chief Justice of the United States Supreme Court was largely responsible for the Brown decision ending legal school segregation, securing voting rights, extending legal protection for the accused, and protecting religious freedom and the right to privacy. Brennan was a staunch opponent of the death penalty, an advocate of a woman's right to reproductive choice, and a defender of political dissent.
In October 1985 Brennan explained his views on the Constitution and the role of Supreme Court Justices, views sharply at odds with Scalia's backward looking right-wing bigotry. Belief in these ideas should be a requirement for any judge appointed to the Supreme Court.
"We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time."
Note: I withdraw myself from any consideration by President Obama for nomination to the Supreme Court. I do not believe I am qualified. It is not because I am trained as a teacher and an historian and instead of as a lawyer. It is primarily because I am an activist with a political commitment to my fundamental beliefs and not to the basic integrity of the legal system. One of my heroes is William Lloyd Garrison, who publicly burned a copy of the Constitution at an anti-slavery rally in Framingham, Massachusetts on July 4, 1854. Garrison believed the Constitution, because it permitted slavery, was a "covenant with death," an "agreement with Hell," and a "refuge of lies."
Corrected. The justice was William Douglas not Paul Douglas.