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TIME

The Worst Supreme Court Decisions Since 1960

Oct 06, 2015

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

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.

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TIME

Richard Delgado, University of Alabama

Citizens United v. FEC (2010) and Bush v. Gore (2000). Citizens United because it departed from precedent and distorted the political process in ruinous fashion; Bush v. Gore because it was unprincipled, result-driven, and exposed the court to well-deserved scorn.

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

Bowers v. Hardwick (1986). The worst decision since 1960 is Bowers, in which the court upheld the constitutionality of a Georgia anti-sodomy law. It was narrow-minded, cynical and offensive, very much in the sad tradition of Plessy v. Ferguson.

Margaret Montoya, University of New Mexico

Bush v. Gore (2000). This judicial coup d’état led directly to the disastrous wars in the Middle East and the equally bad decision in Citizens United (2010).

Martin Redish, Northwestern University

Bush v. Gore (2000). On its four corners the decision may be plausible, but put in the context of the circumstances and the justices who voted to make up the majority, this case is the paradigm of transparently politically driven, unprincipled constitutional analysis.

Cass Sunstein, Harvard University

Citizens United v. FEC (2010). Because it is undermining our system of democracy itself.

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

San Antonio Independent School District v. Rodriguez (1973). By permitting funds for children in schools to be distributed on the basis of neighborhood wealth instead of educational needs, it has permitted millions of children to be imprisoned in a system of educational inequality.

Jenny Martinez, Stanford University

Citizens United v. FEC (2010). Because this decision undermined our democracy.

Kathryn Abrams, University of California, Berkeley

Bowers v. Hardwick (1986). The entanglement of the court in religiously infused moralizing and the rendering of gays and lesbians as (as the court in Romer put it) “strangers to the law”: it doesn’t get much worse than this.

Ashutosh Bhagwat, University of California, Davis

Bowers v. Hardwick (1986). The case, involving a state anti-sodomy law, was legally complex, but the majority opinions are at bottom hateful and bigoted.

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

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