Excerpted from the TIME special edition The Supreme Court: Decisions That Changed America.
Ah, the glorious life of a Supreme being. For one thing, the nine justices on the Supreme Court never have to worry that their verdicts might be reversed by a higher court—there isn’t one. But that doesn’t mean that the court’s decisions aren’t regularly critiqued by hundreds of constitutional law professors nationwide. As this book was being prepared, TIME reached out by email to a number of leading law professors and asked them to identify their choices for the best and worst Supreme Court decisions since 1960. We sent our admittedly unscientific survey invitation to more than 50 such scholars and garnered 34 responses. Our respondents were asked either to reply to our invitation anonymously or to share their thoughts for attribution in these pages.
Among the decisions repeatedly praised by the law-school professors were those that championed civil and individual liberties, as well as those that made democracy more participatory. Decisions that were often mentioned included Loving v. Virginia (1967), which found restrictions on interracial marriage unconstitutional; New York Times Co. v. Sullivan (1964), which protected freedom of the press in the realm of political reporting and libel; Baker v. Carr (1962) and Reynolds v. Sims (1964), which established the one-person, one-vote concept in legislative apportionment; and Obergefell v. Hodges, the 2015 same-sex-marriage ruling.
On the negative side, many professors were critical of Citizens United v. Federal Election Commission (2010), which removed campaign-spending limits on corporations and unions, as well as Bush v. Gore (2000), which resulted in George W. Bush’s winning the presidential election. It’s no surprise that the ever-controversial decision in Roe v. Wade (1973) appeared on the lists of both the best and worst decisions.
Here’s a sampling of the opinions generated when we asked court-watchers to put the worst decisions of the past 55 years on the scales. Click here to see what they thought the best decisions were.
- Column: Tyre Nichols' Killing Is The Result of a Diseased Culture
- Without Evusheld, Immunocompromised People Are on Their Own Against COVID-19
- Here Are All the Movies and TV Shows That Make Up the New DCU
- TikTok's 'De-Influencing' Trend Is Here to Tell You What Stuff You Don't Need to Buy
- Column: America Goes About Juvenile Crime Sentencing All Wrong
- Why Your Tax Refund May Be Lower This Year
- Brazil Wants to Abandon a 34,000-Ton Ship at Sea. It Would be an Environmental Disaster
- The 5 Best New TV Shows Our Critic Watched in January 2023
Richard Delgado, University of Alabama
Saikrishna Prakash, University of Virginia
Roe v. Wade (1973). This decision is the worst on two levels. First, its legal reasoning is so thin that numerous law professors felt compelled to author chapters in a book about what Roe should have said. Second, it generated a potent public backlash that was somewhat successful in curbing the court’s willingness to wade into thorny social issues.
Jamal Greene, Columbia University
Margaret Montoya, University of New Mexico
Martin Redish, Northwestern University
Cass Sunstein, Harvard University
Lawrence Sager, University of Texas, Austin
Bush v. Gore (2000). In a context where—absent Supreme Court intervention—no important principles of political justice were in peril, and where the salutary constraints of reason-giving and precedent-following were conspicuously absent, the court chose the president of the U.S. The charge of naked politics is hard to answer.
Erwin Chemerinsky, University of California, Irvine
San Antonio Independent School District v. Rodriguez (1973). This decision held that inequities in school funding do not violate the Constitution. The court thus said that discrimination against the poor does not violate the Constitution and that education is not a fundamental right. It played a major role in creating the separate and unequal schools that exist today.
Owen Fiss, Yale University
Milliken v. Bradley (1974). This decision, which barred the proposed busing of Detroit students to achieve racial integration, repudiated the proudest aspirations of Brown v. Board of Education and began the long and extended process of draining that landmark 1954 decision of much of its substantive meaning.
Richard Pildes, New York University
Buckley v. Valeo (1976). In its first crack at an immensely complicated problem, campaign finance, the court tried to decide too much at a time when it knew too little. By sweepingly ruling that any and all forms of regulating election spending were unconstitutional, the court essentially made any efforts to regulate the system destined from the start to be fruitless and impotent. And at the same time, by carving in half the statute Congress enacted, the court created a campaign-finance system Congress never would have enacted. We continue to live with the fallout.
Cary Franklin, University of Texas, Austin
Shelby County v. Holder (2013). It’s not just that a bare majority of the court gutted one of the most important civil rights laws in American history; it’s that the principle they relied on was one relied on by apologists for the Confederacy after the Civil War: that states possess a special dignity that is offended if we recognize that some engage in more race discrimination than others.
Steven Shiffrin, Cornell University
Jenny Martinez, Stanford University
Kathryn Abrams, University of California, Berkeley
Ashutosh Bhagwat, University of California, Davis
Michael Dorf, Cornell University
Bush v. Gore (2000). The decision grossly abused the power asserted in Baker v. Carr and was impossible to explain as dividing along anything but partisan lines.
Excerpted from the TIME special edition The Supreme Court: Decisions That Changed America. Pick up your copy in stores today. Digital edition available at TimeSpecials.com