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Awful Eight: (Dis)Honorable Mentions


Before we get to The Worst Supreme Court Decision of All Time, let’s take a quick look at some doozies that didn’t quite make the cut. The (Dis) honorable mentions below were either mercifully overturned, superceded by an even worse ruling, or are too new to figure out what just happened. Like our Awful Eight, they span the political range from conservative to liberal, and are sprinkled throughout the last three centuries.

Lochner v New York (1905): The Court had previously decided the government could limit working hours for a dangerous industry like coal mining, but overruled a New York law limiting the hours a baker could work because baking was not an “unhealthy trade” like coal mining. Therefore, safety was not an issue and could not be regulated. The Court relied on a fictitious “liberty of contract” as part of the Due Process clause in the 14th Amendment – i.e. that if workers found the terms and conditions of employment unsatisfactory they could seek employment elsewhere… as if unskilled laborers in Queens could simply quit and take a job on Wall St. Lochner ushered in the Lochner era, a period of about 30 years where the Court overturned more than 100 laws aimed at workplace safety. Lochner was overturned in 1937, which then saw the judicial pendulum swing in the other direction to unfettered regulation. It does not make the Awful Eight because it is irrelevant today. Lochner was decided 5-4.

Slaughterhouse Cases (1873): When the Louisiana legislature decided they wanted to relocate slaughterhouses downstream of New Orleans so as not to pollute the water supply, they did so by creating a government-sanctioned monopoly. All slaughterhouses had to relocate and pay a franchise fee to a quasi-government entity in order to operate. The Court upheld this, ignoring the privileges and immunities clause in the 14th Amendment, because the monopoly was sanctioned by the state of Louisiana, not the federal government. The 14th Amendment was intended to protect only federal privileges and immunities. It does not make the Awful Eight because the Louisiana legislature changed their constitution eleven years later to prohibit such monopolies, thus lessening the impact of the Slaughterhouse Cases. It has not been overturned, however, and the privileges and immunities clause remains impotent today. The Slaughterhouse Cases was decided 5-4.

Chevron USA, Inc. v Natural Resources Defense Council (1984): A landmark case if ever there was one, this ruling codified the doctrine of “administrative deference”- i.e. if a statute was ambiguous a government agency could fill in the gaps. It has become so synonymous with administrative law that deference of this type is often referred to as “chevron deference.” The Constitution is silent on the limits of power of government agencies (the Framers could scarcely have comprehended the EPA), so the Court invented a mechanism for them to fill in the gaps if a law is unclear. The net result is unelected bureaucracies creating public policy. For instance, the IRS decided that the “market reforms” dictated by Obamacare forbade small businesses from reimbursing employees for private health insurance. Instead if a company- even a Mom & Pop- wants to help with the employees’ medical costs they must enroll in an ACA-approved group plan or face fines of $100 per employee per day. The interpretation, requirements and penalties were never voted on. Chevron was decided 6-0.

Griswold v Connecticut (1965): We discussed this decision in one of our earlier Awful Eight cases, Roe v Wade. In Griswold the Court fabricated out of whole cloth the “right to privacy” based on “penumbras and emanations” of the Bill of Rights. In other words, they found an excuse to overturn a law they didn’t like. In this case, the law they didn’t like was an arcane 19th century statute in Connecticut that forbade the use of contraception. The Court decided the government had no right dictating individual decisions regarding birth control.   Fifty years later the same Court was perfectly fine with the government dictating you buy insurance covering birth control (NFIB v Sibelius). Go figure. Griswold was decided 7-2.

Obergefell v Hodges (2015): A Court composed entirely of Harvard and Yale Law graduates, with eight of the nine living in either the east or west coast states, with six Catholics and three Jews, with four being native New Yorkers, with no protestant nor Southerner nor (heaven forbid) evangelical among them, found a right that had eluded 147 previous years of jurisprudence; eliminated any and all political and democratic debate on the topic; and took it upon itself to redefine marriage for everybody. Prior to hearing any arguments, two Justices (Ginsberg and Kagan) signaled how they were going to vote by performing same-sex marriages. Obergefell was decided 5-4.

Up next: Two Generations Lost

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