Uncommon Priors

There have been a lot of bogus Supreme Court cases in the history of the Court. The classic baddies are, of course, Dred Scott, Plessy, and Lochner, with Korematsu and Buck v. Bell running close behind. But none of those cases are good law any more (although Korematsu’s status might be disputed). What about lousy cases that are still law — and a) are lousy because of the social harm they’ve done, rather than anything particularly about the legal reasoning in them, and b) can be recognized as lousy regardless of one’s partisan political alliances? (This last requirement excludes the right from saying Roe v. Wade, and the left from saying Bush v. Gore.)

Obvious candidates from the most recent handful of terms are Kelo, Eldred, Raich, etc. But I’d look a little further back, and call it a race between Buckley v. Valeo and Wisconsin v. Yoder. The first, of course, made it impossible to seriously regulate the extreme political influence of the wealthy and organized relative to ordinary folks. The second permits parents to sacrifice their children’s well-being, development, and autonomy to parental religious belief. Buckley probably gets the nod, just because most kids are still getting schooling — it’s a minority of hyper-religious parents who deprive their children of anything resembling an education at all — while the electoral system is a complete mess.

Other nominations? Whren almost made it on the list too — pretextual stops are not our friends.