Mimesis Law
14 August 2020

Fault Lines’ First Monday In October

October 3, 2016 (Fault Lines) — In honor of the Supreme Court’s new term starting today, we’ve asked Fault Lines contributors for their Worst/Best Supreme Court decisions. Here’s what they say:

Judge Mark W. Bennett:

Worst case: Far, far too many to choose from but Stone v. Powell (1976) is an oldie but favorite terrible case of mine. It was an early case of a long and painful trend of undermining not only the rights protected by the Fourth Amendment but of the Great Writ. The Byzantine procedural barriers created by the Supreme Court almost always prevent federal district judges from reaching the merits of habeas claims, and, this unraveling of the Great Writ is an American legal tragedy.

Best case: No contest, United States. v. Booker (2005). Without Booker, tens of thousands of federal offenders would be serving much harsher sentences than the already too harsh sentences they serve.

Greg Prickett:

Best case: Mapp v. Ohio. This is the case that changed criminal jurisprudence in the United States when it held that evidence seized by unlawful means was not admissible in a criminal prosecution. The police came to Dolree Mapp’s home and demanded to search it and the single mother told them to come back with a search warrant. Three hours later, the police kicked the door and searched without a warrant, and prosecuted Mapp based on evidence that had been illegally seized. The Court created the exclusionary rule and prohibited the evidence from being admitted.

Worst case: United States v. Kagama. Here, the Court invented the “plenary power” doctrine that Congress could make any law that it desired in regards to American Indians, both as individuals and as to their tribes. There is no support for this doctrine anywhere in the Constitution, but once the doctrine was stated, both the instant and subsequent Courts have endorsed it, over and over again to the detriment of the tribes.

Chris Seaton:

Worst case: Korematsu v. United States. This is the Supreme Court at one of its lowest moments, justifying the validity of holding American citizens with Japanese ancestry in “relocation centers” because we were at war, and some citizens of Japanese descent might pose a “security risk” since we were at war with Japan.  Worse still, the Court deferred to the military when they had the chance to condemn this practice, and narrowed their opinion to which order Fred Korematsu violated.  It’s a spineless descent into racism, and an important opinion to remember at a time when we’re repeatedly told we’re at war with people who look different from us, and some of those people might pose a “security risk” to our nation.

Best case: Hustler v. Falwell. Though not a criminal case, it’s one of the Supreme Court’s best opinions because it prevented public figures from silencing speech they didn’t like based on hurt feelings.  It strengthened free speech in America by removing the ability to sue a publication for intentional infliction of emotional distress absent a false statement made with actual malice.  This holding is what gives the comedic geniuses of America the freedom to be as ridiculously offensive as possible, and for the rest of us to laugh about it.  If you enjoy mischief, provocation, and the occasional good round of name-calling, take a moment and thank Larry Flynt for his service to our country.

Jeff Gamso:

Worst Case: In McCleskey v. Kemp the Court looked at data showing that in Georgia, and all other things being equal, a person who killed a caucasian was 4.1times more likely to be sentenced to death than a person who killed an African American and said it didn’t matter.  That might be enough to bring a successful workplace discrimination suit, but if we said it was enough to justify undoing a death sentence, then we’d be recognizing that our criminal justice system is so infected by race that nothing could save it.  So fuck ’em!

Best Case: Damn, there are so few really good ones, cases that have stood the test of time, cases that have actually been followed and honored in more than the breach.  OK, it doesn’t exactly do all that, but I’m going with Gideon v. Wainwright and the right to be represented even if you can’t afford a lawyer, a small step in response to Anatole France’s comment that “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”  Nobody of any credibility seriously disputes its underlying principles (except for people we really hate), and there’s actually a pretense of following it everywhere.  Of course, it’s too often toothless given that no legislature actually wants to provide adequate funds for indigent defense, and SCOTUS has pretty well gutted the 6th Amendment requirement of effective representation.  Still, it’s a dream with at least ankles if not full legs.

Andrew King:

Worst Case: United States v. Cruikshank. The facts of the case themselves are terrible; it considered to be the worst instance of racial violence during the entire Reconstruction. A mob of white Democrats stormed the courthouse in Colfax, which was held by freed black and white Republicans. This was functionally a coup of the democratically elected government. Up to 153 people were killed, only three of them white. The U.S. government attempted to prosecute the mob under the Enforcement Acts. At the time the Fifth District had held that the 14th Amendment incorporated the Bill of Rights. But the Supreme Court further neutered the 14th Amendment and the federal government’s ability to protect freed blacks in the South and effectively legitimized state disarmament of the freed blacks.

Best Case: It is tempting to pick from a number of good Free Speech cases, but I am going to go with Chicago v. McDonald. Although it’s still early to see what the breadth of the Second Amendment will be and thus its absolute impact, it’s still an important case. The case represents the idea that all constitutional rights are of equal dignity, and we cannot just ignore or interpret away the ones we might not personally like.

Josh Kendrick:

Worst Case: So many crappy Supreme Court opinions and so little space to write about them. I picked Davis v. United States because it not only has all the hallmarks of a terrible Fourth Amendment decision, but it’s an ominous sign of things to come. Basically the Court said the Fourth Amendment is intended to protect people from deliberate, reckless, or grossly negligent disregard of their right to be free from unreasonable searches and seizures. Regular old unreasonable searches and seizures are totally fine. The Davis opinion holds the exclusionary rule doesn’t apply to an unconstitutional search if the cops thought the search was constitutional.

The reasoning? Too much social cost to let criminals go just because they were caught in violation of the Fourth Amendment. In reducing itself to the level of the drunk asshole at the cocktail party bitching about loopholes, the Court ended with this gem:

It is one thing for the criminal “to go free because the constable has blundered.” It is quite another to set the criminal free because the constable has scrupulously adhered to governing law.

Yeah right. Who needs to scrupulously adhere to anything with these guys (and girls) in charge?

Best Case: Every once in a while the Court finds an acorn. And the recent acorns have been coming in the form of a thousand cuts into the Armed Career Criminal Act. The Act drastically increases punishment for those with serious violent criminal pasts, theoretically. Sounds good, huh? What’s not to like?

The ACCA is one of the least effective, half-assed, and vague laws Congress has passed. And in my new favorite cases, Johnson v. United States and Mathis v. United States, the Court is slowly choking the Act to death. Of course, a real Court would just kill it and be done with it, but the wheels of justice grind slow. At least there is a chance the ACCA dies before I do. Read the cases. You won’t understand them. But they make it really hard to find any prior offenses that trigger the Act. So instead of having to just whine argue to the judge that this law sucks, now we can wave these cases around. It’s a start.

Caleb Kruckenberg:

Worst Case: As Chris Seaton explained, the Court in United States v. Bryant figured out how to make life even worse for defendants in Indian Country. Because Indian Tribes are separate sovereigns, in order to respect their right to self-governance, they don’t have to abide by the Sixth Amendment. Tribe members facing misdemeanors don’t have to get free lawyers. At the same time, the feds don’t want to give up too much sovereignty, so tribes aren’t allowed to prosecute someone for major crimes. Serious crimes in Indian country go to federal court. But what kind of world would we live in if the feds couldn’t rely on prior uncounseled convictions to ratchet up federal sentences on serious crimes? Bryant unanimously ratified this kind of conduct, out of, obviously, respect for tribal sovereignty.

Best Case: Sometimes the Court has to repeat itself to make its point. In Mathis v. United States, the Court had to decide the proper way to determine what kinds of prior convictions qualify for certain very nasty consequences in federal prosecutions (and in immigration proceedings). The Court had already decided in Descamps v. United States just a few years earlier that the only thing that mattered about the prior conviction was what the elements of the offense were, not how the crime actually went down. If you murdered someone but pled guilty to disorderly conduct, the only thing relevant later was what the elements of disorderly conduct were. The lower courts didn’t like Descamps, so they ignored it and made up dumb exceptions that made no sense. The Court in Mathis wasn’t having it, and reminded everyone, “a good rule of thumb for reading our decisions is that what they say and what they mean are one and the same.”

Mario Machado:

Worst Case: Dred Scott v. Sandford, the decision that nullified the Missouri Compromise and put the U.S. well on its way to the Civil War, which resulted in a butcher’s bill of over 600K American lives and innumerable “reenactments.”

Best Case: For whoever detests waste in general and a “one size fits all” mentality, especially when it comes to warehousing human beings, United States v. Booker is music to the ears.  So I second Judge Bennett in my pick for the best decision.  The vast majority of federal cases are pled out or end in convictions, and Booker gives Judges the go-ahead to ignore the sentencing guidelines and use anything from empiricism to hocus pocus to craft an appropriate sentence (whatever that means) for each defendant.   Yes, Booker still does not affect mandatory minimums, and most judges still adhere to the sentencing guidelines, but in the trenches one takes whatever one can get.

David Meyer-Lindenberg:

Worst Case: Chaplinsky v. New Hampshire, for holding that speech which hurts people’s feels strongly enough is unprotected.

Best Case: Yates v. United States (2015), for the remarkable contortions that led the majority to conclude a fish isn’t a “tangible object” for the purpose of a federal law.

JoAnne Musick:

Worst Case: Bennis v. Michigan. Really, this one just pisses me as a “it’s just not right” sort of thing. The case involved a civil forfeiture of a car. The husband used the family car to engage the services of a prostitute. Under a public nuisance theory, the government sought to take his car. Never mind that his wife also owned an interest in the car. The law didn’t give her, as an innocent owner, any recourse. And the Supremes basically said, sorry we can’t help you. And that’s just not right!

Best Case: In re Gault. For the first time in our county’s history, the Supreme Court decided kids are people too. Well, not in those words, but in 1967, juveniles did not have many rights. They were not necessarily afforded counsel or even any sort of due process. Gault was a 15 year old boy who made an obscene phone call. As such, he was adjudicated and ordered confined until he reached 21 years of age. Appeal wasn’t even possible under then existing laws for Gault. He and his lawyers turned to federal habeas law and the Supreme Court held kids are people too and just like their adult counterparts, they too deserved procedural rights.

Thomas Johnson:

Worst Case: There are many cases where the high priests of the American Judiciary dispensed chaos, ruin and dismay on people in this country. My far more learned colleagues here at Fault Lines have already listed the most infamous. Unfortunately there are plenty of cases to go around and I submit to you Kelo v. New London (2005). In this case. the Supreme Court ruled that government can take property away from one private owner and give it to another private owner as long as there is some vaguely defined public benefit at some point as articulated by those who the property is being taken on behalf of: The well connected, powerful, such as large development firms, corporations.

Best Case: New York Times Co. v. SullivanThis ruling made it so a public official can’t prevail in a defamation action regarding his or her official conduct unless actual malice is proven. That means with knowledge that defamatory statements were false or with reckless regard to whether the statements were true or not.

Free and open debate about government and the conduct of our public officials is more important than worrying about the occasional honest factual errors that might hurt the reputations of public officials. Justice Black wrote:

I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials…An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment

Andrew Fleischman:

Worst Case: Imbler v. Pachtman. Deep from the recesses of its robes, the Supreme Court found, hidden in the federal civil rights statute, a “traditional immunity” for prosecutors that shielded them from almost all civil consequences for their decisions. Imbler is the source for some of the Supreme Court’s most shameful recent decisions, including Connick v. Thompson, which held that a municipality’s total failure to train prosecutors how to follow their constitutional duties could not lead to liability, reversing a fifteen million dollar verdict for a man falsely held on death row for decades. Without Imbler, suing the city wouldn’t have been necessary to seek redress. Absolute prosecutorial immunity remains the scourge of our justice system. While  prosecutors must be protected from frivolous lawsuits, the inability to seek damages when a prosecutor misuses his power, lies to a jury, or hides essential exculpatory evidence means that a prosecutor’s conduct is only as good as his conscience.

Best CaseArizona v. Gant held, for the first time in a long time, that officers were lying or mistaken when they pretended to be afraid that suspects, handcuffed in the back of squad cars, would escape back to their own vehicles and find weapons to shoot at officers. It is one of the few times in recent memory (Riley being the other one) where the Supreme Court heard from law enforcement “experts,” and correctly deduced they were slinging fearmongering nonsense to serve their own interests. Gant did not do much to help the average defendant, since police departments soon learned to claim that every search of a car was an “inventory search,” meant to prevent a lawsuit over lost or stolen property that could never come due to sovereign immunity. But it showed that police couldn’t win every 4th Amendment fight with officer safety, and it gave hope for the future.

Noel Erinjeri:

Worst Case: Whren v. United States. The case that said that violating the 4th Amendment was OK, if you could come up with some sort of reason why it *might* not be a violation. The stop in that was obviously pretextual…the cops who pulled Whren over was an undercover drug unit not engaged in traffic enforcement and were specifically forbidden from doing so except in emergencies. The Court in this case elevated clarity (allowing stops for violations, however minor) and foreclosed defense counsel’s ability to even challenge the stop. This is why most hinky stops nowadays begin with impossible-to-disprove violations like “touching the fog line” or “following too closely.”

Best Case: Gideon v. Wainright. One of the capstones of the Golden Age of criminal jurisprudence, it ensured that no accused had to face system alone. Gideon himself put it best: “Each era finds an improvement in law for the benefit of mankind.” For the first time, no matter where you were in America, if you got charged with a crime, the Supreme Court said it was supposed to be a fair fight.

Judge Richard Kopf:

Best and Worst Case:  Marbury v. Madison, 5 US 137 (1803) (unanimous opinion by Chief Justice John Marshall). Marbury was a landmark United States Supreme Court case in which the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution.  That decision was either the best or worst issued by the Court from the inception of our country to present date. I suggest that we still don’t know what answer is correct.

8 Comments on this post.

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  • Andrew King
    3 October 2016 at 8:17 am - Reply

    Based on the order that the questions were answered, Greg might be the only optimist of the group. And Judge Kopf could be either.

    • Greg Prickett
      3 October 2016 at 11:15 am - Reply

      Nah, I’m a pessimist. Maps was a great decision that the Court has been determined to narrow to nothing ever since it was decided.

  • Jim Tyre
    3 October 2016 at 11:39 am - Reply

    SHG: Nicely themed and interesting blog post. But it’s missing your picks. Care to share?

    • shg
      3 October 2016 at 12:57 pm - Reply

      I’m just the janitor here. Have mop, will travel.

      • Jim Tyre
        3 October 2016 at 1:26 pm - Reply

        You haven’t asked for readers to submit their picks. Still, I have one for the scariest line ever written by a SCOTUS Justice in an opinion. More so because it’s from a dissent and because it isn’t a post-9/11 case, it’s from before you were born.

        This man, who seems to have led a life of unrelieved insignificance, must have been astonished to find himself suddenly putting the Government of the United States in such fear that it was afraid to tell him why it was afraid of him.

        Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 219 (1953)(Jackson, J., dissenting).

  • Mark W. Bennett
    3 October 2016 at 1:17 pm - Reply


    Gotta love 1 Cranch 137 (1803). Just sayin

    • Richard G. Kopf
      4 October 2016 at 7:55 am - Reply


      You mean Cap’n Crunch? I never liked that cereal. It is also true that I thought it first came to our markets in 1963 rather than 1803 but what do I know?

      All the best.


  • Ross
    3 October 2016 at 10:52 pm - Reply

    Worst: Wickard v Filburn, which led to Congress justifying every damn law as being covered by the Commerce Clause, even when it’s obvious that there’s no interstate commerce involved.