A Book Review: "The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom."
In two months the Supreme Court will conclude its 2007-2008 Term, some 216 years after it rendered its first decision. During those years, the Court decided thousands of cases.
While Americans have been considerably affected by the Court’s interpretation of federal statutes, its constitutional decisions have had the greatest impact on the limited government and concern for individual rights bequeathed us by the Founders.
As to which constitutional decisions are “worst,” lawyers usually disagree. (In a book I’m writing -- Fifty of the Worst Supreme Court Decisions -- my standard is cases, beginning with M’Colluch in 1819, adversely affecting in a major way republican institutions (e.g., federalism) and individual rights (e.g., speech).
To choose their “dirty dozen,” the authors considered “post-1933 cases that had the most destructive effect on law and public policy, either by expanding government powers beyond those that are constitutionally authorized or by imperiling individual liberties that are constitutionally protected.” (My emphasis.)
Given the authors’ stated goal -- i.e., the selection of a dozen cases that “expanded” or “imperiled,” which by itself was a workable objective -- regrettably they’ve created a serious contradiction for themselves: On the first page of their Introduction they write: “This book is about twelve Supreme Court cases [beginning in 1934] that changed the course of American history -- away from constitutional government.” (My emphasis.)
Cases “expanding government powers” or “imperiling individual liberties” are one thing, and not difficult to find. But cases that “changed the course of American history” are something else entirely, and not so prevalent. If the authors’ “dirty dozen” were intended to satisfy the “expanding” or “imperiling” standard, the book succeeds, albeit only in part. However, if all twelve must satisfy the “chang[ing] the course of American history” standard, only five succeed.
For example, in his foreword Professor Epstein rightly disagrees with the authors’ selection of Whitman v. American Trucking Associations, Inc., (administrative agencies, not Congress, enacting legislation) and United States v. Miller (limiting the right to bear arms).
He’s correct about Whitman because, as he says, it was Chevron U.S.A., Inc. v. Natural Resources Defense Council in 1984, “that inaugurated the principle of high judicial deference to administrative agencies on practically all questions of law.” Chevron would easily have satisfied the “expanding” or “imperiling” standard, and perhaps even the “changed” standard.
Professor Epstein is correct also about Miller, because the decision, strongly implying that Americans did not possess the individual right to bear arms, neither significantly “expanded” nor “imperiled” citizens’ right to own guns, which millions of Americans currently do (albeit subject to some regulations). Miller be said to have “changed the course of American history -- away from constitutional government” but only in a limited sense. (The case currently before the Court on the District of Columbia gun ban will be of far greater import, regardless of its outcome).
Bemis v. Michigan, a 5-4 ruling allowing the state to forfeit assets used in a crime even though they belonged to an innocent owner, is hardly an earth-shaking due process decision compared to many previous ones. While, like others, it may have “expanded” or “imperiled,” Bemis is hardly is a case that “changed the course of American history” --whatever the moral implications of an innocent being wrongly punished.
As to McConnell v. Federal Election Commission, prohibiting speech within a couple months of an election, the authors are correct that “Campaign finance laws attack the heart of our democratic political system,” and in that sense the case “expands” and “imperils.” However, McConnell involves only one category of speech -- political -- while, since 1933, the Court has sanctioned government suppression of other kinds of speech, e.g., symbolic, obscene, commercial, and more. McConnell is thus just another suppression of speech, but surely not one that has changed American history.
Although the authors are certainly correct that Kelo v. City of New London and Penn Central Transportation Co. v. New York, allowing confiscation of private property through eminent domain and regulation, for commercial as well as government purposes, were “expanded” and “imperiled” cases, Kelo was actually the product of the case to which they give “dishonorable mention”: Berman v. Parker. In that “urban renewal” case, decided a half-century earlier, the constitutional term “public use” was given a broad interpretation, and the nature of real property ownership changed dramatically. As the authors note, after Berman in 1954, “courts routinely deferred to legislatures and planning commissions in eminent domain actions . . .” -- making Kelo a mere consequence of Berman. And, in that respect, so too was Penn Central.
The last of the “dirty dozen,” discussed in Chapter 12, is the 2003 case of Grutter v. Bollinger, upholding racial preferences in undergraduate admissions -- a decision presaged by the Court’s 1978 decision in Regents of the University of California v. Bakke, to which the authors give “dishonorable mention. In Bakke, the Court approved the consideration of race to achieve “diversity” in undergraduate admissions. Despite the justifiable outrage that accompanied Grutter and the cogency of the four-justice dissent (especially Justice Thomas’s), the case added little if anything new to the reprehensible racial preference scheme propounded by Justice Powell in Bakke.
On the other hand, in five of their “dirty dozen,” the authors are correct in their assessment of the cases’ impact.
Home Building & Loan Association v. Blaisdell allowed states -- in repudiation of Article I of the Constitution’s Contact Clause -- to nullify private mortgage contracts because of depression-induced inability of mortgagees to make their payments.
In Helvering v. Davis, the Court upheld the Social Security system in the name of spending for the “general welfare.” As Epstein says, the case “transformed the Constitution’s General Welfare Clause from a limitation of government power to a source of added power.” We see the consequences at every session of Congress, and every term of the Supreme Court.
In United States v. Carolene Products, involving federal prohibition of interstate shipment of a certain type of milk, the Court severely limited review of a federal statute by asking only “whether any state of facts either known or which could reasonably be assumed affords support” for the legislation. Carolene Products thus effectively took government depredation of economic liberties out of the realm of judicial review. To say that the decision “changed the course of American history” is an understatement.
Wickard v. Filburn, upholding federal quotas for home-grown wheat to be consumed locally, engorged the Commerce Clause, profoundly changing the delicate equilibrium between the federal government and the states.
Korematsu v. United States, upheld the wholesale WW II removal of Japanese-American citizens from their homes. The decision unarguably expanded government power and imperiled individual rights -- indeed, it trampled on them -- and changed, hopefully for the better, the future treatment of American citizens who are prima facie innocent of any wrongdoing.
In trying to select twelve post-1933 “dirty” cases, Levy and Mellor gave themselves a difficult assignment. Although by the standards they set for themselves they have not completely achieved their goal, still, they have brought to the general public a challenging indictment of the Supreme Court that is at once accessible and provocative.