envisioned the judicial branch of our government as “an
impenetrable bulwark against every assumption of power in the
legislative or executive.” In reality, the U.S. Supreme Court has
been more like a rubber stamp, allowing all manner of harebrained
government schemes to survive despite their blatant conflict with
the text of the Constitution.
Yesterday’s dismal ruling in National Federation of
Independent Business v. Sebelius was no exception. Not only
did the Supreme Court vote to uphold ObamaCare’s requirement
forcing all Americans to buy health insurance, Chief Justice John
Roberts even cooked up an insidious new way for Congress to run our
lives via its vast powers to “lay and collect taxes.” Where's
Harriet Miers when you need her?
But don’t worry, it gets worse. Here are the top 5 most
unlibertarian Supreme Court rulings from the last 40 years that are
still standing (and the individual mandate didn’t even make the
5. Miller v. California (1973)
A landmark First Amendment ruling and an official permission
slip for moralists and censors ever since, this 1973 case
reaffirmed the government’s right to prohibit speech deemed to be
obscene by replacing an existing vague and murky legal definition
of obscenity with an all new vague and murky definition. The case
involved Marvin Miller, a California man convicted in a lower court
on obscenity charges for sending unsolicited sexually explicit
pamphlets through the mail. When the Supreme Court reviewed the
case, they agreed with the conviction, declaring that “obscene
material is not protected by the First Amendment,” but noting the
difficulties in determining what exactly should count as obscene.
drew up new obscenity guidelines which instructed authorities
whether "the average person, applying contemporary community
standards" would find that the work, taken as a whole, appeals to
the prurient interest
whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state
Whether the work, taken as a whole, lacks serious literary,Problem solved? Hardly. The Miller test remains
artistic, political, or scientific value.
impossibly vague, and leaves it up to the arbitrary whims of
judicial authorities to determine what sort of speech can be
prosecuted under the law for being outrageous or offensive. A
better reading of the First Amendment would make clear that the
right answer is: none.
Next: Cops, prostitutes,
Bennis v. Michigan (1996)
In September 1988 a
Michigan couple named John and Tina Bennis bought a 1977 Pontiac
automobile for the price of $600, which they split between them.
Three weeks later, on the night of October 3, John was arrested by
Detroit police after picking up a prostitute in the car and later
charged and convicted of gross indecency. Sensing an opportunity,
the county prosecutor turned to a Michigan statute allowing for the
seizure of property used for the purposes of “lewdness, assignation
or prostitution” and brought an asset forfeiture action targeting
Because Tina Bennis was a part owner of the car and had been
convicted of no crime, she innocently assumed her right to life,
liberty, and property under the Due Process Clause of the 14th
Amendment would prevent the government from robbing her of her
ride. The U.S. Supreme Court saw things
differently. “An owner's interest in property may be forfeited
by reason of the use to which the property is put even though the
owner did not know that it was to be put to such use,” wrote Chief
Justice William Rehnquist. By rejecting Bennis’ “innocent owner”
defense, the Supreme Court kicked the door open to even greater
asset forfeiture abuse.
Next: The Fourth Amendment Under
Muehler v. Mena (2005)
Supreme Court rulings that have chipped away at the Fourth
Amendment are a dime a dozen. From 1983’s Illinois v.
Gates, which drastically reduced the requirements for police
to obtain a warrant based on an anonymous tip, to 2002’s Board
of Education v. Earls, which paved the way for public schools
to require students to undergo drug tests before participating in
intramural activities, Americans’ civil liberties have taken a real
beating from the high court in recent years.
more recent case has even broader implications for the Fourth
Amendment. In 1998 Iris Mena was handcuffed and kept in her garage
for three hours while an 18-member SWAT team searched her home for
a suspected gang member. Mena sued, saying that there was no need
for officers to keep her in handcuffs once they had determined that
she not a threat. She also claimed in her suit that the officers
could have avoided destroying her property if they had permitted
her to unlock door and cabinets. Additionally, the officers
questioned Mena about her immigration status, despite the fact that
she was not the target of the raid.
In 2005, the Supreme Court ruled 5-4 in
Muehler v. Mena that the need for law enforcement
officers to “take command of the situation” during a lawful raid on
a residence or business outweighed Mena’s concerns about being
detained for an overly long time, or the destruction of her
property. The majority also held that Mena being questioned about
her immigration status was not a violation of her Fourth Amendment
The dissenting justices held that keeping Mena, who stands
5-feet-2-inches tall, in handcuffs for three hours was excessive
and that she should have been released immediately upon determining
whether she was a threat to the officers.
In 2012, the Obama administration cited Muehler v. Mena
in a brief to the U.S. Court of Appeals for the 9th Circuit in
its defense of
several DEA agents who roughly handcuffed two young girls—ages
11 and 14—during a wrong-door raid.
Next: Smoked out.
Gonzales v. Raich (2005)
According to Article 1, Section 8 of the
Constitution, Congress possesses the power “to regulate
commerce...among the several states.” Yet in the Supreme Court’s
1942 ruling in Wickard v.
Filburn, the Supreme Court found the Commerce Clause
pliable enough to forbid an Ohio farmer from growing and consuming
a specific amount of wheat on his own farm.
Then the Court arguably made things even worse with its 2005
decision in Gonzales
v. Raich, where it held that medical marijuana cultivated
and consumed entirely within the state of California somehow still
counted as interstate commerce and was therefore subject to the
federal Controlled Substances Act. As Justice Clarence Thomas
remarked in his dissent, “By holding that Congress may regulate
activity that is neither interstate nor commerce under the
Interstate Commerce Clause, the Court abandons any attempt to
enforce the Constitution’s limits on federal power.”
You can also thank Raich for those federal raids on
local medicial marijuana clinics that President Barack Obama once
he was going to stop.
Next: There goes the neighborhood.
Kelo v. City of New London (2005)
Are there any limits on government's
authority to take property from citizens? The U.S. Constitution's
Fifth Amendment seems to put pretty clear limits on the taking of
"private property for public use" (with public use defined as
projects such as railways and roads) and requires that owners
deprived of their property must receive just compensation. That
standard held up into the twentieth century, when a stream of court
decisions began defining "public" downward and "blight" (one
criterion for condemning private property) downward.
Kelo decision completed that dreary progress. Justice
John Paul Stevens ruled for the majority that a redevelopment
agency in New London, Connecticut could seize homes of local
families and give them to a private developer working with the
Pfizer Corporation for a mixed-use plan dating to the 1990s. In a
stinging dissent, Justice Sandra Day O'Connor noted that the Kelo
decision overturned a judicial principal dating to 1798: A "law
that takes property from A and gives it to B" cannot stand.
Stevens' decision still seems shockingly credulous and
ill-considered seven years on. Kelo rejects any requirement that
condemned property be put into public use, gives unlimited
"deference" to politicians' economic judgments, and assumes the
plan's "comprehensive character" and the "wisdom of the means the
city has selected" would ensure against damaging private citizens
for no public purpose.
In the end, though, Pfizer
abandoned the project and the Fort Trumbull neighborhood,
cleared of its houses, literally became a
garbage dump. New London was made
poorer, and although
some states responded to the ruling with
piecemeal efforts to rein in eminent domain abuse, Kelo's most
important precedent has been to enshrine the
unrepentant Stevens' legacy as an economic dullard and
second-rate legal thinker.