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. 

The Curious Case of A National Suicide Pact

I continue with my reading in the letters of Thomas Jefferson and of Abraham Lincoln. My admiration for the constitutional acuity of Jefferson never diminishes as I read, but only grows.

Jefferson, writing to Judge Spencer Roane, puts the character of an issue in his day in sharp relief, and, in words that are applicable today as then. There, speaking of the Supreme Court's decisions by John Marshall, he characterizes the decisions as utterly beyond constitutional bounds. In fact, he declares that, if the Constitution in fact authorized the Supreme Court to be the sole and final voice of interpretation of the Constitution, then it was a "felo de se," a “felonious act of suicide."

Jefferson's letter responding to Judge Roane, and steering away from a view expressed in a letter published in the Richmond Enquirer, sets out his view that each branch of the federal government was bound to its own construction of its powers and duties under the Constitution. Moreover, he concluded that the Constitution did not extend to any single one of the three branches of the general government a general power of interpretational superiority to the other branches. Rather, each branch was duty bound to interpret the Constitution as necessary to its performance of its own duties. To the extent that the checks and balances of the Constitution empowered one branch to exercise authority over another, that could only be done as expressly stated in the Constitution.

Thus, for example, impeachment is clearly a mechanism by which the executive and judicial officers may be restrained by Congress from unlawful or, in its judgment, unconstitutional acts. But there was no power granted to the President, for example, simply to suspend or dissolve Congress, or the courts. So an Order of the President dissolving Congress and calling for new elections might impress the President, but it would not compel Congress to end its deliberations.

In his letter, Jefferson, with the long view of eight years in the Presidency, and a decade following that of contemplation, knew precisely how to illuminate this political philosophy of his: he explained the underlying dispute in one of the most oft-cited and discussed cases of constitutional law, Marbury v. Madison.

As Jefferson saw the matter, in a series of last minute, midnight appointments, John Adams signed and sealed a set of commissions for justices of the peace in Alexandria. Those signed commissions literally were laying on a table in the office of the Secretary of State when Jefferson took office, and he forbade that they should be transmitted to those named, including Mr. Marbury. Jefferson remonstrated against the decision -- even though it dismissed Mr. Marbury's claim against Jefferson's Secretary of State, James Madison -- because the Court, when it could and should have simply said, "Case dismissed," used the occasion to set out its view on its supremacy in constitutional construction.

Jefferson states the view that, in the hands of judges such as John Marshall, the Constitution is made into a thing of wax, to be bent and twisted to the preferences of judges.

That might sound familiar to some of you.

There has been an ongoing battle, just some 210 years long, over the character of the Constitution as a changeable thing. Judges, including William Brennan, Harry Blackmun, Thurgood Marshall, and Ruth Ginsburg, all exhibit a manner of constitutional construction that is in keeping with the view that the Constitution is like a living being that it is capable of growing and developing through the Court's construction of it. Jefferson, as President and as emeritus to that office, like Antonin Scalia and Clarence Thomas, take the Constitution as a thing of fixed meaning, not capable of expansion merely by preferential interpretations given to the document by themselves or any judicial majority.

Yet, in his day, Jefferson saw this propensity to view the Constitution as a thing capable of being transformed in the hands of unchecked judges. That is the central concern of his letter to Judge Roane. That was his concern then. That is our danger now.

Yes, our danger now.

Today, courts across the nation are proceeding apace, in the name of applying the Constitution, to strike down State laws and State constitutional amendments on the subject of the definition of marriage. Here I am not stating a case against recognition of same sex marriage, or rejecting the power of a State, through the exercise of its republican mechanisms, to do so. Instead, I am confirming what you already know: that the judicial cabal, principally consisting of federal trial and appeals court judges, has claimed for itself a superiority the republican will of the People in some twenty six States of the Union.

Article III of the Constitution sets out the powers, duties, and boundaries of the Judicial Branch of the General Government. If the Supreme Court, or an inferior federal court, exercises power or authority, it does so, if legitimately, only within the bounds and terms set out in Article III.

Yet, one can search in vain for the "Marital Supervisory Authority Clause" within Article III of the Constitution. It is not there to be found.

And, one can search in vain for the "Supremacy of Constitutional Construction Clause" within Article III of the Constitution. It is not there to be found. 

Indeed, one can search in vain for the “We'll Do as We Damn Well Please Clause” within Article III of the Constitution. It is not there to be found. 

These powers of the Courts -- to exercise a supervisory control over State laws regulating marriage, to the exclusive and final construction of the Constitution, and to do as they damn well please -- are the product of two hundred years of deformation of the Constitution. They most assuredly are not express powers grained to the federal judiciary in Article III.

Some, including friends and family, may celebrate today's, or recent, decisions by federal courts, regarding such matters as marriage equality, or the rights of undocumented aliens, or the like. As ever, I just note for your consideration what Jefferson warned in his letter to Judge Roane. You gain such victories in these circumstances -- not by popular sovereignty, which is the truest and best bulwark of liberty, -- by a softly tyrannical oligarchy. Though that oligarchy patronizes your preference today, it can be turned on a wind, just like a sailing ship.

If you would not lose those liberties that you prize, you should not applaud the abuse of them in the name of liberty.