William Mellor, president and general counsel of the Institute for Justice, recently discussed his book, The Dirty Dozen: How 12 Supreme Court Cases Radically Expanded Government and Eroded Freedom, with a John Locke Foundation Shaftesbury Society audience in Raleigh. He also discussed the U.S. Supreme Court’s worst decisions with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)
Kokai: So why compile this dirty dozen of the worst Supreme Court decisions?
Mellor: The Supreme Court, through the 12 decisions that we discuss in our book, has effectively amended the Constitution with profound implications for all Americans. What that means is that government as a result has radically increased, and individual freedom has been radically diminished. The thing is, these decisions, as important as they are, are virtually unknown by most Americans. Some of them occurred decades ago during the New Deal. Others were more recent but oftentimes involved obscure facts or complicated issues that didn’t really make themselves clear at the time just how important — sweeping — implications those cases would be. We wanted to tell that story.
Kokai: Unfortunately, there are far more than just 12 bad Supreme Court decisions. How did a case make it onto the dirty dozen?
Mellor: We surveyed 75 of our colleagues in the legal field — practicing lawyers, scholars, academics — and asked them to basically nominate cases for the dirty dozen. Interestingly enough, of those efforts we got about nine, maybe 10, cases that continually got at the top of people’s lists because there are some that are just so obviously wrongly decided and that had terrible implications. The other couple we added because we thought they really were very bad and also helped illustrate the point we were making about just how easy it has been for the Supreme Court to change the Constitution.
Kokai: You and your co-author Robert Levy of the Cato Institute compiled these, and those who have looked through the book have seen that there are the 12 cases themselves and then some others that you call “dishonorable mention.” How is it helpful for people who are interested in the Constitution — in the way that it should work — to see all of these together in print and to see how the Supreme Court has acted?
Mellor: There is a story here, and it is a story that is informed by both the history and the reasoning employed by the court. What you understand when you see that story and read it from beginning to end is that it is very important what kind of philosophy the court exercises when it issues decisions. Is it a philosophy that is driven by adherence to the Constitution and to the limited government that the Constitution establishes, or is it a much more expansive view of government that ushers in all kinds of mischief simply because the Supreme Court wants to address a particular social issue or a particular crisis of the moment and in doing so basically gives the government a blank check? That has happened in everything from the Contracts Clause to the General Welfare Clause, the Takings Clause, the Due Process Clause. Time and again the words of the Constitution … you can look at them, and they are the same as they always have been, but their meaning has been profoundly changed.
Kokai: You mention the philosophy, and some of those who are used to listening to this show may think that you are espousing a particular conservative philosophy. But reading the book, you are not talking about a liberal or a conservative philosophy. It is more of a philosophy of following what is actually in the Constitution.
Mellor: That is exactly right. We call for judicial engagement, not judicial restraint and not judicial activism, which are the two terms that typically characterize the debate over judicial nominations. We think it is vital that the court be engaged in a principled and consistent way that enables it to undo the damage that it has caused to the fabric of our Constitution and the rights that we should enjoy.
Kokai: We are not going to have time in this interview to get through all 12 cases. Is there one or maybe a couple that are the dirtiest of the dozen?
Mellor: Well, I’ll illustrate with two, one of which radically expanded government in the way that the Supreme Court decided it and one of which dramatically reduced individual freedom. The case of Helvering v. Davis is a case that most people have never heard of, even if they’ve gone to law school. It upheld the Social Security Act back in 1937. Now in doing so, it not only ushered in that huge social welfare program, it explicitly enabled the Congress from that moment forward to exercise its taxing and spending authority to redistribute wealth in this country in any way that Congress sees fit. Since that time there has never been a program Congress has passed to redistribute wealth that has been struck down by the court.
The personal liberty side of things is best illustrated by a more recent case, Kelo v. New London, which many people may recall came down just a couple of years ago from the Supreme Court, in which they upheld the authority of government to take any home or business from a private owner and give it to another private party only on the justification that the new owner would perhaps create more jobs or higher tax revenue from their use of that property than the current owners. That was never contemplated by the Founders.
Kokai: You mentioned in a recent speech to the John Locke Foundation’s Shaftesbury Society that the Founders, if they saw the way that the Supreme Court has gone, they would be flabbergasted. They would never have imagined that the Constitution they put together would turn out the way it has.
Mellor: That is exactly right. The Founders, whether you look at James Madison or Alexander Hamilton, both of whom had very different views of the role of the national government, but both of whom thought that the court would never exercise this kind of radical transformation of the governing institutions that they so carefully — that the Founders so carefully — worked to create through the Constitution and the constraints that were imposed on government through that precious document.
Kokai: One of the things that will be interesting to people who read all the way through to the end is that after the 12, you actually put a couple of cases in there that are highly publicized, everyone knows something about them, but you did not include them in the dirty dozen. Why talk about both Roe v. Wade and Bush v. Gore?
Mellor: Roe v. Wade was wrongly decided. It is the textbook example of judicial activism and judicial overreach, and that is pretty much accepted now I think by both right and many on the left, even if they like the result that Roe came up with. However, the point that we are trying to make in this book is that the decisions we are looking at are those in which the court took a constitutional provision, twisted it on its head, and in doing so radically expanded the reach of the executive and the legislative branches. Roe doesn’t do that. Roe ends up being a policy call that the court never should have exercised. It should have better been left in the political branches, but it did not override that in the same way by expanding the government authority that we are talking about.
Bush v. Gore is a more difficult case, but basically that is one in which the court got it right, and we feel that again the implications, though they have had tremendous animosity created in the political process as a result of that amongst Democrats, it did not have the pernicious consequence of radically expanding government in the way that the other cases we selected did.
Kokai: Now one possible outcome from writing this book is that people like me can read it and get angry again about the way the Supreme Court has acted. But what do you hope happens now that you have put together this book?
Mellor: We hope that going forward as judicial nominations for the Supreme Court and the lower appellate courts are put forward, that there will be a renewed effort to try and have the justice nominees explain a philosophy of jurisprudence and no longer talk in code words, no longer look for candidates that have no record, but to engage that issue. Because the consequences for all Americans are profoundly important, and it is vital that we know what these justices believe and that we put on the court justices who reflect a consistent and principled view of jurisprudence.