65 Reasons Why The Supreme Court is Terrible, Has Always Been Terrible, and Needs to be Reformed
By Eric Segall
Tomorrow I turn 65 years old. Having just returned from a meeting about, gasp, Medicare, I have been reflecting on what my future holds.
I got nothing.
But I do have 65 reasons why SCOTUS is terrible. Here they are in no particular order other than the first one.
1. Never give government officials with substantial power life tenure. Never. Duh.
2. Dred Scott (Court holds that Blacks are not and cannot be citizens, and Congress cannot end slavery in the territories) (also, Court decided merits even though no jurisdiction) (also, case was leaked to the President so he could pressure a northern justice to join the majority).
3. Plessy v. Ferguson (Court upholds Louisiana law requiring Blacks to sit in separate and obviously unequal seats on the back of the train).
4. Bradwell v. Illinois (Court upholds Illinois law prohibiting women from being lawyers).
5. Buck v. Bell (Court upholds mandatory sterilization of persons deemed "feeble minded").
6. Lochner + many, many similar cases (Deregulation imposed on entire country by SCOTUS) (tragically rising again in the Roberts Court).
7. Brown II (Court says states must end formal school segregation with "all deliberate speed," meaning almost no speed).
8. Milliken v. Bradley (Court holds state has no duty to end de facto segregation, as if there is such a thing).
9. District of Columbia v. Heller (Court holds for the very first time that second amendment protects an individual right to own arms in common use, deleting more than half of the text of the second amendment in the process).
10. New York State Pistol & Rifle Ass'n. v. Bruen (NY concealed carry law from 1911 struck down by the Court because ... own the libs).
11. Shelby County v. Holder (Court strikes down key section of the Voting Rights Act so GOP can do better in elections).
12. John Roberts's vendetta against voting rights beginning in 1981 with DOJ memo.
13. John Roberts in Parents Involved: "The way to stop discrimination on the basis of the race is to stop discriminating on the basis on race." We (whites) discriminated against POC on the basis of race from 1619 to ... today. Roberts's hubris on the question of what to do about centuries of official and legal race discrimination could fill an ocean. Also, not his job.
14. John Roberts and the other Cons in NFIB. Somehow Congress's regulation of a trillion-dollar health insurance/health care industry that affects the commerce of every state is not a regulation of "commerce among the states."
15. Seven justices in NFIB: A program that gave states 6 years to adjust to changes in Medicaid requirements is somehow "retroactive" and a "surprise." No, it was not. Also, Roberts coerced Breyer's and Kagan's votes on Medicaid by tying those votes to his vote to uphold the mandate as a tax.
16. The tenor and tone of Dobbs. How about not erasing women from pregnancy and the law?
17. Justice Amy Coney Barrett suggesting adoption is a viable alternative to abortion in Dobbs oral argument.
18. Justice Samuel Alito suggesting the same in the Dobbs opinion.
19. Bush v. Gore (one-day-only decision handing the election to George W. Bush by cutting off Florida recount).
20. Antonin Scalia.
21. Antonin Scalia repeatedly saying about Bush v. Gore: "get over it!"
22. Antonin Scalia repeatedly saying Bush v. Gore was 7-2 (stopping the recount, which was the key part of the case, was 5-4, not 7-2).
23. Antonin Scalia comparing homosexual conduct to murder (in Romer v. Evans) and bestiality (in Lawrence v. Texas). He was a homophobe.
24. The justices generally debate their cases via memo or email. They do not all sit in a room or a zoom meeting and hash things out. That's insane. We have more productive family meetings.
25. Samuel Alito's vendettas against unions.
26. Chief Justice William Rehnquist being on the wrong side of almost every civil rights issue over a long career.
27. The Shadow Docket.
28. No binding ethics code.
29. No uniform policy on the justices' papers, leading to 50-100 years delays in seeing some of the justices' papers.
30. Originalism.
31. The incredible incoherence of standing doctrine.
32. The destruction of habeas corpus.
33. The deletion of the establishment clause from the Constitution by the Roberts Court.
34. The Roberts Court's super-charging of the free exercise clause.
35. Qualified Immunity.
36. The destruction of the Bivens cause of action.
37. No Justice in American history has advocated reading the 11th Amendment exactly as it is written (which, unlike other litigated provisions, is 100% clear).
38. Obscenity should be protected speech.
39. Hate speech directed at specific groups should not be protected speech (though it is speech).
40. Money is not speech. Money facilitates speech, and that is not the same thing.
41. Of course corporations have some rights, but they do not have the same rights as actual people.
42. LGBTQ+ folks should be considered a discrete and insular minority implicating strict scrutiny for equal protection purposes.
43. The fundamental rights prong of equal protection analysis should be eliminated and moved into substantive due process, P or I, or something, anything, that makes sense.
44. Public education should be a fundamental right if we recognize unenumerated rights, which the Court does.
45. Health care should be a fundamental right if we recognize unenumerated rights, which the Court does.
46. Minimal sustenance should be a fundamental right if we recognize unenumerated rights, which the Court does.
47. The Court's complete mishandling of the death penalty, which is racially imposed by many states.
48. Clarence Thomas.
49. Clarence Thomas's complete lack of empathy for non-white collar criminal defendants.
50. Clarence Thomas's acceptance of wildly inappropriate gifts throughout his career.
51. Ginny Thomas.
52. For the love of God, of course discrimination based on pregnancy is gender discrimination (Court has said it is not three times).
53. No cameras in the Court.
54. Justice Samuel Alito being just a huge Di#k (this one for Sherry).
55. The hugely disproportionate number of Justices from Harvard and Yale.
56. The hugely disproportionate number of SCOTUS law clerks from Harvard and Yale.
57. The confirmation process from start to finish.
58. The largely invisible certiorari process.
59. The largely unexplained and mysterious "DIG."
60. Justice Gorsuch suggesting Covid restrictions were the worst affront to civil liberties in our nation's history (slavery, Black Codes, redlining, the Trail of Tears, and coverture would like a word).
61. The Court does not take text even minimally seriously.
62. The Court does not take precedent even minimally seriously.
63. The Court does not care about real historical analysis (unless it supports the justices' preferences).
64. The Court is not a court, and its justices are not judges.
65: If the Justices do not really care about their own prior cases, see Dobbs footnote 48, why should we?