Inspired (and how) by a post up at Crime & Federalism, which is at
http://federalism.typepad.com if you can't just follow my blogroll link, I wanted to write about the Cases that Get You.
Everyone hears about a case sometime or other. Even if you've never cared a whit about the law, something has reached up and grabbed you by the throat (or heart, or mind) and shaken you. "My Lord, they don't really believe that's the right decision," you think. Or, "Wow... I'm so amazed that the Justices actually came out and got that one right, and in such stirring language, too."
Those of who have gone (will go, are in) law school tend to have a few of these. The Good, the Bad, and the Ugly.
Let's leave aside the Good for now, and talk about Bad and Ugly. The wrong decisions, the poor reasoning.
One need not look high up to see bad reasoning; it is on display every day of the year, in one courtroom or another, by lawyers or by judges or by individuals. It's on t.v. But sometimes it comes out of the Supreme Court, the highest court in the land and the one which is "Not final because we are infallible; but we are infallible only because we are final" in the words of Robert H. Jackson, see
http://en.wikipedia.org/wiki/Robert_H._Jackson and the main page at
http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States.
So: here's what Mike posted:
Seminal Opinion:
Was there a particular case — a Seminal Opinion — that strongly influenced your attitude toward the legal system or the legal profession, or that helped you decide the role you wanted to play within the profession? Did one majority or dissenting opinion plant seeds from which your lawyer psyche grew? If so, what was it and what difference has it made in your professional goals or practice?
quoting
David Giacalone of Harvard in a post which was
picked up by Prawfsblawg.
And I answered at length, as follows:
Seminal? Twig-bending? (as the twig is bent, so grows the branch)
I hated Wickard, but there were so _many_ I hated. Scalia's ED v Smith, as noted, the "peyote" case, got it wrong where it counted. O'Connor in the gravesite case, Lyng v. Northwest Indian CPA, same criticism: my God that was badly decided.
The Reynolds case which is still binding law as to marriage is interesting, too; the Supreme Court in 1878 laid down what remains the Law of the Land on marriage as one's conscience and religion dictates, by addressing much the same question as ED v. Smith, which is why that case is only half wrong (right on the precedent, awful on the reasoning and decision to apply that precedent): "whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land." See 98 U.S. 145.
The one where the jurors are partying, Tanner v. U.S., 483 US 107 (1987), but because it's not an "extrinsic influence" (wrong, doubly wrong) there's no way to bring in the "not relevant" evidence of the massive, inconceivably awful due process violation presented by drugged, high, felony-drug-weight-selling jurors. This is my least favorite rule ever, Rule 606(b); Mike, I promised I'd cover some of that kind of thing. "Substantial policy considerations" my ASS. That decision makes me very angry, to this day.
One of the worst decisions ever: Johnson and Graham's Lessee v. M'Intosh, one of the famed Marshall trilogy which demolished Indian rights in their own land, by judicial approval of legislative and executive and private theft. In M'Intosh, aka McIntosh, reported at 8 Wheat. 543, the Court decided that since Indians cannot hold absolute rights in land (!) that when the government allowed them to have any rights in the property they lived on, it was a life tenancy only; when they attempted to sell their land for money to another white man, but the government had sold the same land later to a different white man, title derived from the Native American grant was no good. Amazing outcome, uplifting language, despicable language. It burns me, even at this great distance of 182 years.
I meant to write "amazing outcome, uplifting and lofty language, startling outcome, despicable reasoning." But close enough, I was in rant mode.
So, M'Intosh has been on the books for over 180 years, since March of 1823.
What's your least favorite long-standing rule?
I also listed some of my least favorite cases (the Bad, and the Ugly) above. Do you have a most-hated, a Best of the Worst outcome or rule?
- find police officers in contempt for arresting black but not white suspects for the same acts
- find district attorneys in contempt for failing to pursue indictments and convictions against rich or white or otherwise powerful defendants
- find legislatures in contempt for blatant racism.
After all, that seems like it goes beyond the mere infringement of the separation of powers, and right on into judicial oligarchy. Yes, we have outrageous conduct by the immunized and absolutely privileged actors in the Crim. Justice system, but Ours Not To Question Why.
But, so help me, there's something pathetic about the abdication of responsibility in a decision like this. Yes, judges can't go out and enforce their own decisions. But how much worse is racism when it has the imprimatur of Law upon it?
"Yes, we arrest blacks but not whites for the same conduct; bring charges against them at a different rate; convict them on the same facts at a differential rate; put them to death once convicted at differential rates based _solely on their ability to pay lawyers to throw wrenches into the grinding machinery of death_ - but it's not a problem. After all, it's just a disparate _impact_." says the hypothetical apologist in my head.
Well chosen, Adam. Also, I like your group blog.
I also think Kelo has achieved the rare distinction of descent into instant infamy, despised by liberals and conservatives alike and disowned by its author.
Griswold, in contrast, really matters, even today.
The Supreme Court, as I read that case, took seriously the 9th Amendment, and read in the language of the other Amendments a right to be free from certain infringements of marital privacy. It was an odd case, in 1965, but imagine what a wonderful world we'd live in if it had come out the other way!
There could be no federal restrictions (this is intrastate and arguably not commerce, and no other federal area of power is implicated) on a state's right to:
- prohibit married couples from using contraception
- criminalizing the sale and use of same
- jailing those who attempted to use, sell or even give information about them.
Now, I don't know if that looks insane to you, but it does to me. The federalism question is real; the interest before which it falls is ultimate. What's more important to a struggling family than being able to choose whether or not to be forced to have more children? Maybe Catholics and Mormons and some other anti-contraception folks liked the state law at issue; obviously it had enough support from various
bigots, idiots, morons, prigs, and jerkspersons with whom I would disagree vociferously to be passed into law.But it's a bad law, a very bad law. It should be unconstitutional to limit that particular freedom. Why? Because of a basic theory of what government is: a regulation of public harms, public acts, and public matters. What's so public about regulating contraception? The public morals? Prudery? Hatred of sex? Hatred of women, or the poor?
As always, class rears its ugly head. The rich could get contraception anyway, and could afford good lawyers just in case. Plus, they could always just use abortion if it failed. In contrast, the poor could not afford lawyers, and pet legislators. For them, another mouth to feed could be the last straw; it might result in the deaths of the adults in the family.
So, to respond, no, I don't think Griswold is one of _my_ worst cases. I will, of course, defer to your taste if you feel it is one of yours. I think the hateful Plessy and Dred Scott decisions are up there- but I would note that Dred Scott was a brilliantly reasoned decision which was flawed only because it assumed the conclusion: that Dred Scott was not a citizen, had no standing, and therefore had no enforceable rights. Which makes it, yes, hateful, but the work Taney did in setting up an intellectual framework for protection of the individual was quite nice.
Which is as good as saying, Hitler was a monster and a mass murderer and a psychopath, but he had good taste in shoes. Lovely, but quite beside the point.
Griswold is also, as most lawyers and law students will know, a critical precursor case to Roe v. Wade, which I have promised to blog briefly about and have not yet, as of 8/31/05.
*Not all comments welcome. Flippant, facetious, fierce, or fatuous, fine. Fraudulent, felonious, fabricated, facially insufficient, and farkin' futile, fuggeddaboutit.