A Satchel of Embarrassments: Opinions for Which Justices Should Be Ashamed

Allow me to diminish myself in your eyes by making the following observation:

Of sitting Justices on the Supreme Court, two are genius writers/editors: Antonin Scalia and Clarence Thomas. Truth be told, I think Thomas is far and away the better of the two. But Scalia knows how to pack a punch, and when not to hold one, too.

His dissent in Obergefell v. Hodges, the decision imposing a constitutional duty to recognize same-sex marriages under the Fourteenth Amendment, contained a plaintive cry, a confession, that if he should ever join an opinion of the kind represented by the Court's majority in Obergefell, he would hide his head in a bag:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie. 

That quoted portion, "The Constitution promises liberty to all...," is taken from the opening paragraph of the majority's opinion. That opening reads as follows:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex. 

The quotation and the majority opinion containing it came from the mind of Anthony Kennedy. Scalia's remark certainly seems to suggest that Kennedy ought to be hiding his head in a bag.

Mind you, if a Justice serves for a decade, he will have the opportunity to join, write or dissent from perhaps as many as a thousand opinions issued after briefing and argument. Were I a justice on the Court, I would hope that I would get it right every time. Yet, Scalia's "head in a bag" comment put me to thinking. Setting aside considerations such as overall quality of a justice's service, which Justices would make my top ten list for the Scalia "head in a bag" category, the justices whose opinions ought to have embarrassed the authors into silence, or early retirement?

The problem with a list is that it will reveal the biases of its creator. The value of a list is that it may reveal the biases of its critics. If you have been following JimsJustSayin for a while, you know that I do not make a secret of my biases.

To be clear, a justice can sometimes go awry, off the beaten path. You may find a justice here that you think highly of, as a constitutionalist, as a libertarian, etc. This list is NOT my list of the TEN WORST JUSTICES EVER. This list gathers those justices who should definitely have put their head in a bag after authoring a particular opinion for the Court.

Two examples illustrate my meaning. I've included Justice Stephen Field, although he is clearly an excellent economic libertarian. He would not ever appear on my list of the worst justices. To the contrary, Harry Blackmun, who appears in the bag of this blog, would definitely be on that list of the worst justices. He was an overwrought and semi-competent researcher and not a powerful writer.

This task has required more extended writing. I have, for that reason, broken the post into separate parts. Each Justice in the Satchel of Embarrassments has a separate blog entry, you will find links to those entries, with a brief synopsis, below.

So dig in. Here, in reverse chronological order are the Ten Justices whose heads most certainly belong (or belonged) in bags, together with a brief sketch of the decision by each justice that warrants dropping their head into a bag:

Anthony Kennedy (Obergefell v. Hodges)

Justice Kennedy authored the opinion for the Court in Obergefell v. Hodges. He wrote the words, quoted by Justice Scalia, "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,"

John Roberts (National Federation of Independent Business v. Sebellius)

Roberts misread and misrepresented the Shared Responsibility Payment by calling it a tax. His intentional twisting of the statute did not constitute the ordinary meaning to be accorded to the language of the provision. In fact, he refused to say whether his twisted reading of the statute was anything other than a "fairly possible" reading. Worse, having concluded that the penalty was a tax, and thus within the power of the Congress, Roberts committed a further error.

Harry Blackmun (Roe v. Wade)

Blackmun's opinion in Roe v. Wade combines the worst in historical research with the worst in constitutional interpretation. It is, I'm sure, coincidental, but Blackmun's opinion for the Court in Roe v. Wade opens with language strikingly similar in tone and florid appeal to Kennedy's opening in Obergefell. Blackmun wrote:

"We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion."

Hugo Black (Korematsu v. United States)

Justice Black, though a KKK member earlier in life, often stood for civil liberties in a class alone, as an absolutist. Nonetheless, in this case, arising from the Japanese Exclusion Orders, Black authored dark chapter in our history, and made an indelible stain of racism on himself.

Robert Jackson (Wickard v. Filburn)

Justice Jackson wrote Wickard v. Filburn, and in doing so, he crafted a rule by which the power of the federal Congress to reach deeply into highly local, intra-State activities was established. That rule, the rule in Wickard v. Filburn, in a case from 1942, is relevant today as Americans wonder how Congress acquired the power to coerce them to purchase health insurance.

Oliver Wendell Holmes (Buck v. Bell)

Justice Holmes affirmed the constitutionality of Virginia's program of forced sterilization for the handicapped. His reasoning suggests that, because society chooses to create a social safety net, it can impose on those that fall into the net such "smaller sacrifices." It is no wonder that Nazi doctors invoked Holmes' reasoning to try (unsuccessfully) to avoid conviction for their identical program of forced sterilization. One might say, three generations of imbecilic Supreme Court opinions is enough.

Stephen Field (Chae Chan Ping v. United States)

Justice Stephen Field, a brilliant jurist, committed his constitutional foul ball in a case that recognized, for the first time, a power of the Congress to control immigration as part of the sovereignty of the United States federal government. What Justice Field omitted from his opinion was an actual provision of the Constitution granting Congress such power to exclude foreigners.

Horace Gray (Elk v. Wilkins)

Justice Gray makes his way into the Bag of Shame, shiny pate and all, because when he had the opportunity to give to the Fourteenth Amendment its plain, textual and natural reading, he did not do so. Rather, he strained at the Clause's obvious language to produce a decision in many ways indistinguishable from Dred Scott v. Sandford, except that Dred Scott at least predated the Fourteenth Amendment.

Roger Taney (Dred Scott v. Sandford)

Taney's conclusion, that even free born blacks were not, could never be, citizens of the United States or of the States, helped to precipitate the Civil War. His conclusion that Congress could not regulate slavery in the territories risked de-legitimizing Congressional regulation of the slave trade in the territories. It took a Civil War and two amendments to the Constitution to eradicate Taney's stain on the Constitution.

John Marshall (Marbury v. Madison)

John Marshall laid the groundwork for the rise of the Supreme Court from a separate, co-ordinate, and equal branch of the federal government, one described in the Federalist No. 78 as "the least dangerous branch" to "the most dangerous" one. 

Fascist Pillars of the Supreme Court

Sometimes the odd pairing of symbol and substance cannot be winked--in the case of the Supreme Court what you do not know may well hurt you.

The United States Supreme Court has been in its own home just some seventy-five years. When the Union was formed, the Justices of the Supreme Court had no quarters at all, except such as each provided for himself. The entourage of clerks (each justice now may have as many as four) was unknown. The Clerk of the Supreme Court was not paid a salary and he derived his income solely from the receipt of filing fees. Justices were required, together with local federal trial judges, to ride circuits in the newly formed federation, and were subjected to all the discomforts with which the common man was acquainted in travel.

The ignoble status of the Court belied its destiny as the modern Titan of the Constitution. That status was utterly in keeping, however, with the view expressed by Alexander Hamilton, in The Federalist No. 78, that the judicial branch was designed and directed in a way that insured that it would always be the branch of the federal government least dangerous to the rights and liberties of citizens. Writing as Publius, Hamilton reasoned thus: the legislative branch embodied the will of the people, expressed through the legislative enactments of the Congress; the executive branch embodied the force of the people, insuring obedience to the will of the people; the judiciary, however, embodied only the capacity to make judgments; the judiciary was incapable of expressing the will of the people and lacked even the force necessary to enforce its own judgments.

In the scheme of constitutional things, the conclusion of the Federalists regarding the judiciary was reasonable. That scheme, however, unraveled over time. In the course of the Court's history, a definite march toward predominance is easily discovered. From early decisions in which the Court asserted the right to decide the constitutionality of federal and state laws to the most recent decisions in which the Court has cast itself as the preeminent guardian of liberties guaranteed to state citizens under the Fourteenth Amendment, the Court's unfaltering march is toward aggrandizement and consolidation of power on the Court. Today, even sitting Justices reputed to hold a constraining view of the role of the Court, such as Antonin Scalia, seem drawn to the expansion of the Court's powers. In a recent speech, Scalia explained his developing view that Congress was not entitled to deference in its legislative judgments when its legislative judgments consisted of passing statutes of uncertain constitutional stature and then leaving the ultimate disposition of those statutes to court challenges with expedited review in the Supreme Court.

Nor has the danger to the Republic from the consolidation of power in the Court gone unnoticed by leading statesmen in our history. In his first inaugural address, Abraham Lincoln alluded to the Supreme Court's disastrous decision in Dred Scot vs. Sanford. In Lincoln's view, many who sympathized with the Southern cause were willing to allow the policy of the nation to be settled in litigation between private parties. The new president expressed the view that, if Supreme Court decisions were regularly substituted for the popular judgments of the people, our democracy would be at an end:

"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

Lincoln's warning about the danger to our republican form of democracy has been left as an artifact, trodden underfoot on the pathway of the Court's ascendancy.

An aside about the history of the Court's quarters and the plan of its architecture is appropriate here.

Again, the Court had no home at all when the Constitution was ratified. When it did find quarters at the first, its quarters were shared. Initially, in February 1790, the Court used, in the afternoons, the same space as the New York General Assembly employed in the mornings. Later that year, the Court, along with the government, removed to Philadelphia. There the Court again shared space in the Pennsylvania State House and then in the Philadelphia City Hall. By 1800, the federal government removed again, to its permanent home: the District of Columbia. There, again, the Court had no home to call its own. Instead, the Court used space in the Capitol otherwise intended for committee meetings. After about eight years, while renovations were proceeding in the Capitol building, the Court actually convened for a period of time in a public house. During and after the War of 1812, the Court got around a bit, meeting in a leased home on Capitol Hill and eventually returning to the committee room that had become their chamber. Finally, in 1819, the Court entered into a period of greater permanence, actually managing to remain rooted in the same chamber in the United States Senate for four decades. In 1860, as the consequence of building expansion by the Senate and the House, the Court removed from its home downstairs up to the Old Senate Chamber, where it would remain until 1935.

It was in the Roaring Twenties that the justices' desire for a permanent and dignified home came into conjunction with the willingness of Congress to provide a home for the Court. Former president and then Chief Justice William Howard Taft headed up the building commission for the Court's new home. Congress readily approved the commission's choice of a plot on East Capitol Street adjoining the Library of Congress and looking onto the Capitol grounds. Chief Justice Taft used his position and influence to insure that his friend, Cass Gilbert, was selected to serve as the architect of the Supreme Court building.

Gilbert had achieved considerable public regard prior to the selection. He designed what was, at the time of its completion, the tallest building in the world, the Woolworth building in New York City. His other public buildings included the Treasury Annex in Washington, DC, and the public library buildings in Detroit and St. Louis.

The effect achieved by Gilbert in his design of the Court matched his goal: the construction of a colossal temple for the judicial arts and science. But not only did Gilbert achieve the creation of colossus. The Court itself continued its march toward the accretional expansion of its authority as well as, in fits and starts, naked power grabs.

In design and construction, except for the Courtroom itself, the Supreme Court building is a showcase of America's natural resources. The granites, marbles, veneers and other natural surfaces all were derived from the quarries and forests of the United States. In stark contrast, however, Gilbert used imported marbles in the construction of the Courtroom itself. For the imposing pillars of the Courtroom, Gilbert wanted to use a fine Italian marble. At the same time, Gilbert was aware that quality control for the selection and harvesting of marble from Italy could be quite irregular. Gilbert's desire for the finest marble faced frustration from the irregular quality of marble obtained from premier Italian quarries. To avoid that frustration, Gilbert turned to the one man who possessed the ability to guaranteed that the finest marble quarried in Italian quarries would be selected to fill the Court's order.

Benito Mussolini, Italy's fascist premier since 1922, was that man. It was to him that Cass Gilbert sent the a sycophantic message suggesting that no finer marble could be found than the Italian quarries produced, and that, with appropriate quality control, Gilbert and Mussolini would succeed in showcasing that marble in one of the most important buildings in the world. In essence, Gilbert appealed to Italian nationalistic vanities and avarice.

The plea succeeded. And when first the Court sat in a home of its own, in October 1935, the pillars with which the late Gilbert's son, Cass Gilbert, Jr., finished the Courtroom proper were the wondrous product of the fascist dictator's efforts to insure that Italy's finest marble supported the edifice of America's highest court.

And it was in that Courtroom, supported on each side by Mussolini's pillars, that the Court carried forward its consolidation of constitutional power. To be certain, there were apparent setbacks. During Franklin Delano Roosevelt's New Deal, conflict between the Court, on one hand, and the Executive and Legislative branches, on the other, made the idea of packing the Court with ideologues inclined to approve New Deal socialistic programs appear likely. These setbacks were ones of appearance, however, more than substance. After all, Roosevelt did not simply ignore the Court into oblivion. Rather, he focused significant thought and energy on the problems it made for his relief programs. FDR's conduct lent emphasis to the role of the Court as a key locus of federal power.

Judicial appointments in the late 1930's, of Hugo Black and William O. Douglas, and in the late 1950's, of William Brennan, further solidified the Court's role as ultimate arbiter of constitutional questions. In the era of Black, Douglas, and Brennan, the Court used the "Incorporation Doctrine" to assert new authority over state and local governments. Proponents of incorporation, such as Black, Douglas and Brennan, have concluded that the Due Process Clause of the Fourteenth Amendment incorporates some or all of the individual requirements of the Bill of Rights into the Fourteenth Amendment.

Incorporationists conclude that, under the requirement that States not deprive any person of due process, the protections of the First Amendment, which are specific guarantees against federal suppression of religious and political freedoms, protect federal citizens from similar usurpations by state and local governments and actors. In like vein, incorporationists reason that federal citizens are protected by state or local government violations of the rights guaranteed by the other provisions of the Bill of Rights.

Of course, by their ratification of the Fourteenth Amendment, the States donated over to Congress the power to enact legislation to accomplish the purposes of the Fourteenth Amendment. Nothing in that amendment, however, suggested that the States deputized the Court to act as ultimate arbiter of the rights of federal citizens. In the present day, however, it is precisely the Court, and not the Congress to which the amendment specifically refers, that is the power-broker under the Fourteenth Amendment. This very point is the one demonstrated by the Court's 1997 decision in Flores versus City of Boerne. In Flores, the Court struck down the part of the Religious Freedom Restoration Act that Congress made applicable to States and localities. The Court opined that it, not Congress, would decide what rights under the Fourteenth Amendment were in jeopardy and required the assistance of federal intervention.

Along the way to present situation, the Court has exhibited many of the same tendencies toward fascism that overtook Benito Mussolini. Such a charge made without support warrants dyspeptic regurgitation. The outlines of that support, at least, have already been amply supplied here.  I cannot help a sense that those who react dyspeptically to this charge suffer from delusions about the present structure and function of the government of this Nation.

I suppose, if one were to adopt Marge Schott's reasoning, we could focus on the significant aesthetic contribution of Mussolini to our temple of justice. Schott, then the owner of the Cincinnati Reds baseball franchise, you will recall, took heat for her thoughtless bromide that Hitler started out as a man who helped his people and improved their lives. We could temper our distaste for Mussolini and his proclivities by recalling that it was Il Dulce who guaranteed that our Supreme Court was constructed with the finest marble. With a similarly blind eye, we could temper our distaste for the present imbalance of powers by delighting in the real if invalid benefits individuals have garnered from a Court that has usurped both Force and Will from both federal and state loci of power. After all, has not the Court has guaranteed individual liberties against State, Congressional and Executive infringements? If we do not put too fine a point upon it, the Court has frequently acted, even if beyond its authority, to the benefit of individual rights and liberties.

Fascism takes its name from the word for "bundling." In the case of fascists, what is bundled is power. Modern dictionaries define fascism as a system of totalitarian government. The nearly completed march of the American federal judiciary toward predominance in the federal balance of power and in the federal-state balance of power resembles just such a bundling of varied sticks and branches of power. And so the symbol, pillars of Italian marble, guaranteed superior by a fascist dictator, finds substance in the bundled and unconstrained power of the United States Supreme Court.

An Octaroon's Take on the Zimmerman Verdict and Aftermath

My great grandfather's birth certificate is conspicuously marked with the letter "N."

If you follow the math, my great grandfather being black means, without more, that I am one-eighth black.  In the days of race classification laws and miscegenation statutes, I would be categorized as an octaroon.  I like that.  Jim Henderson, octaroon.

Now if you have met me, you may be surprised at that categorization.  At some points in my life, I have been the whitest white guy I knew.  As I have grown, and as the various coconuts have dropped from the family tree, I was already comfortable with my Native American ancestry (Cherokee, and, perhaps, some Ojibwa).  So discovering my bloodlines lead back to Africa just was not bound to bother me too much.

Now, in the aftermath of the acquittal of George Zimmerman, whose mother is Hispanic and whose father was Caucasian, we are forced to come front and center with America's most famous doubloon, Barack Hussein Soetoro Obama.  (Zimmerman can only qualify as America's most infamous doubloon because of his divided Caucasian and Hispanic heritage.)  As we know from reading Obama's autobiography (technically it is a biography since it was written by his friend), he is a doubloon, like Zimmerman, but his ancestry divides between Caucasian and African.

At the front end of the Zimmerman affair, we had our noses rubbed in the mess that is Doubloon Obama, when he allowed as how, if he had a son, he would resemble Trayvon Martin, the young man killed by Zimmerman following the affray started by Martin.  No.  Actually, Obama, he would have resembled his own mom and dad, not the self-aggrandizing and pompous buffoon living inside your clothing.  A family had just lost its son.  Another family was facing the real possibility of the personal destruction of their son via a race baiting media and a publicity craving prosecution.  All that Obama could think to say was that a son springing from his loins would resemble a dead child.  It's always about the Obamas, don't you see.

Now we've had our noses rubbed in the Obama mess post-verdict.  Could the President of the United States take the time to call for calm, to speak of the abiding respect with which Americans view the jury trial system as a means of finding the closest proximation of truth in any fact dispute?  No.  He was too busy playing the race card with a gathering of sorority sistahs.

Did the jury get the decision right?

Well, they had weeks of evidence, hours of argument by attorneys, mounds of instruction from a judge.  The attorneys did not claim that the instructions given were wrong.  The prosecuting attorney has not said a word, not one peep, about the outcome being prejudiced due to judicial error or the exclusion of evidence (a claim that could not be countenanced by reality, since the court gave the prosecution most everything it wanted, and was seen by numerous observers to be bending over backward to assist the prosecution in making its case).

I guess we will never know what happened in those fateful moments, except through the fractured lenses of various individuals.  Zimmerman did not testify but there was a recorded police interview.  Rachelle Jeantel did not record her conversations with Trayvon, but she did recall them during testimony.  There is no doubt that Zimmerman's gun, in Zimmerman's hand, ended Martin's life.  The only doubt that ever existed is whether Zimmerman was justified in shooting Martin.

We can know, though, that Obama's legacy in the racial healing department will not be as it was anticipated five years ago it would be.  True, we elected the first president with African blood in his veins.  One might say, at least since his autobiography was written for him, that we elected the first president that identified with the black race.  (We should be careful not to go overboard in calling Obama a black president since he is, by the same measure, a white President.  He is, in fact, America's first doubloon President.)  And though white America's voted for Obama in numbers that show expiation for all race guilt arising out of the Nation's history of slavery, Jim Crow, and racialization, we seem further apart and striated by race than during the Presidency of George W. Bush.