Cato Institute scholar reviews “worst” Supreme Court decisions

September 15, 2008Duke Law News

Sept. 15, 2008 — Legal scholar Robert Levy gave listeners a crash course in the twelve decisions he considers the Supreme Court’s worst at a Duke Law School lecture on Sept. 11.

Levy’s talk, sponsored by the Federalist Society, bore the same title as his book, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

A senior fellow in constitutional studies and member of the board of directors at the Cato Institute, Levy said that he and co-author William Mellor asked “74 like-minded legal scholars” to submit lists to them of bad decisions. He admitted that there were “famously bad” early decisions such as Dred Scott v. Sandford and Plessy v. Ferguson, but said he did not include those decisions because they had long since been discredited .

“As repugnant as those decisions were, they are no longer the law of the land,” he said.

All of the decisions in his book came after 1934.

“Much of the Court’s lasting, enduring mischief came much later during the New Deal and continues today,” Levy said.

Among the decisions in Levy’s “dirty dozen” was Wickard v. Filburn in 1942. The case concerned a farmer who grew wheat in excess of federal regulations curbing wheat production in order to stabilize prices. Because the farmer, Roscoe Filburn, ate his excess wheat or fed it to his animals, he rejected the federal government’s claim of regulatory authority under the Interstate Commerce Clause of the U.S. Constitution, Levy said. Ultimately, the Court ruled in favor of the government.

“[The farmer] said, ‘How could it be interstate commerce [when] it’s all on one farm in one state? I’m not buying it, I’m not selling it, there’s no commerce involved. It’s not commerce and it’s intrastate,’” Levy explained.

That decision “opened the regulatory floodgates for the government to regulate anything and everything,” Levy said.

Another example Levy highlighted was Korematsu v. United States, a civil liberties case dealing with the internment of Japanese-Americans during World War II. Decided in 1944, the Court agreed with the federal government in Korematsu that national security concerns outweighed civil liberties.

“Of course, the Constitution is supposed to guarantee fair treatment and equal protection under the law, but apparently those guarantees can be waived during wartime, even if American citizens are arrested and imprisoned indefinitely, which is exactly what happened,” Levy said.

In addition to discussing his list of worst decisions, Levy also outlined his libertarian judicial philosophy and detailed the ideological differences between libertarians and conservatives and liberals.

“Libertarians remind their conservative friends that too much unchecked authority in the hands of the executive branch threatens the notion of separation of powers which has been a centerpiece of the Constitution for more than 200 years,” Levy said. He also accused liberals of applying their “healthy distrust of government” inconsistently.

“Why is it that the left can’t seem to see past just two departments of government when they moan about too much government, the Defense Department and the Justice Department?”
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