The United States has been in existence for two hundred and forty-eight years. The first opinion rendered by the Supreme Court was West v. Barnes, 2 US 401 (1791), a long and deservedly forgotten and ultimately minor issue regarding a dispute over payment for goods the plaintiff in the case before the Court argued had been improperly granted in the lower courts due to the fact that the writ of error leading to his losing his farm in the payment dispute was not properly signed by a Supreme Court clerk. In other words, in today's society, who cares?
It got me to thinking, however, that the Court has now been issuing decisions since 1791, which obviously covers the entirety of the nineteenth and twentieth centuries, as well as the twenty-first up to the present date. It also got me to wondering, the nine years of the Court's opinion issuing existence of the eighteenth century aside, what the single worst opinions of the Supreme Court were in each of these centuries. When I am referring to the single worst decisions, I do not necessarily mean that the opinions were necessarily against the language or penumbras of the Constitution, but were against all humanity, all common sense, or were simply so cruel that any rational present day thought would immediately lead to the decision that the cases were wrongly decided from the outset.
Starting with the nineteenth century, I would imagine that the outright winner for the worst opinion of the century would be Scott v. Sandford, 60 US 393 (1857), commonly known these days simply as the "Dred Scott" case.
As most know, the Court in Dred Scott ruled that black persons born into slavery or brought into the country and sold as slaves in the pre-Civil War days were nothing more the property of their masters. They otherwise had not rights as humans.
There is no particular analysis of the decision that is necessary present day. Nobody, at least nobody with any sense of decency or humanity, would argue that a Black person, or any ethnicity for that matter is not a human, and as such entitled to all the protections of the Constitution. It is noted, however, for the time the case was decided, 1857, the provisions of the Constitution if strictly read and applied, allowed for such an opinion to be reached by the Court. My brother has written an entire book on the subject. The case, however, has been explicitly overruled by the Civil War amendments to the Constitution; therefore, there is really no reasonable need to fear that Dred Scott will somehow be resurected and brought back to life, regardless of the make up of the present Court.
In the twentieth century, the worst single opinion by the Supreme Court was Korematsu v. United States, 323 US 214 (1944).
In spite of what some may say, including people very close to me who have offered the opinion, Korematsu has never been overruled. Yes, Justice Roberts and Justice Sotomayor have statede that it has been overruled in the "court of public opinion", and it is clear that if the issue was ever raised before this Supreme Court in its current make up, it would be overruled.
But as of right now Korematsu v. United States has, in fact, not been overruled.
Oh sure, the conservative bloc of justices may say the case is abhorrent, but will they actually rule that way if the issue of whether or not blocs of citizens can be detained simply because of their ethnicity actually comes before them? Can we rely upon any sense of decency from conservative justices who clearly can be swayed by the "court of public opinion", which has no actual legal standing, but acts as a threat to the justices?
As of right now, if the incoming administration issued an emergency executive order similar to the order issued by FDR, directing the military to round up Muslim Americans on the grounds that they present a potential threat to the safety of the rest of us, or Chinese Americans on the same grounds, or Panamanian Americans on the grounds that Panama allegedly charges too much for American ships to pass through the Panama Canal, who is to say that this Supreme Court with these justices will actually overrule Korematsu?
And who is to say that the incoming president and his incoming justice department will not argue that Korematsu is still precedential as it has not actually been overruled?
Which brings us to the present century.
I admit, which is to say the obvious, that the century is not quite one quarter of the way over; however, I believe we already have the United States Supreme Court decision that history will prove to be worst of the twenty-first century, if not the worst decision ever rendered by the Court for all of eternity.
Ladies and gentlemen, I give you Trump v. United States, 603 US 593 (2024).
This is the legal gem that ruled that the incoming president held immunity from all acts committed as president, as long as they were in good faith committed as part of his official duties. There is nothing in the Constitution that grants immunity to a sitting president for crimes committed while in office. There is something in the Constitution that says all persons are equal and equal before the law. It is also noted that while he has argued that the office of the presidency is too important and too time consuming to force him to defend himself from his own actions in court, this overhelming importance of the office has apparently deterred cadet bone spurs from pursuing his own patently frivolous lawsuits as a plaintiff against any and all he believes have aggrieved his petty mind.
The immediate effect of this opinion is that the cases brought against cadet bone spurs over the events of January 6, which could not possibly have had anything to do with presidential duties, have now been dismissed, other than the state action in Georgia that is on life support due to the fact that the District Attorney in the case, Fani Willis, could not figure out that it was not a good idea to have a sexual fling with the special prosecutor she appointed to handle the case. So now, he will get away with it.
He may also ultimately get away with his tax and fraud schemes for which he was convicted in New York earlier this year even though the acts for which he was prosecuted not only had absolutely nothing to do with presidential duties, but were acts committed before he even became president, which would logically lead to the conclusion that they were not acts covered in the Supreme Court opinion. The trial court has not dismissed the case based upon the motion filed on behalf of cadet bone spurs' legal team claiming the acts for which he was convicted are covered in the Supreme Court decision. He will appeal. The appeal will be brought eventually to the Supreme Court, with this same set of justices who pulled the immunity reasoning out of thin air.
The ultimate effect of this is we are now in a situation where we have a convicted felon about to resume office. He will undoubtedly pardon his co-conspirators from all his cases, at least those who did not turn on him in some fashion a la Michael Cohen. Even though he will claim complete immunity from the Supreme Court opinion, he will likely try to pardon himself, which sort of admits that he committed crimes in the first place.
We are also left with the distinct possibility, already announced by him and his justice department nominees, that he will pursue criminal charges against those he perceives to be his foes. He will go after Liz Cheney, Jack Smith, Christopher Wray, Letitia James and anyone else who tried to prosecute him for crimes he has already committed. He probably cannot tell you what statute any of them will be prosecuted under, but since when would that make a difference. He has already announced that he will go after any media outlet that he believes his dissed him, even if that is a blatant constitutional violation and simply another situation in which he cannot tell you the statutory violation committed by the media he is persecuting. His nominee to hed the FBI has already announced he is compiling an enemy's list.
Nixon had an enemy's list.
He is going to claim that anything he does after January 20, 2025 is an official act for which he is entitled to immunity. If it means he orders the murder of Liz Cheney, etc., do not be surprised.
And do not be surprised if this Supreme Court screws up the logic to support that act of murder and any other ones that would follow.
And do not be surprised if he tries to suspend the Constitution under some sort of emergency power that does not exist, and this Supreme Court allows him to do so.
And do not be surprised if future candidates for the office of the presidency run simply so they can avoid being prosecuted for any number of crimes they have commited or intend to commit in the future.
None of any of this is in the Constitution. Indeed, it is likely that the Founders would ask anyone who made the suggestion to them that any of this was explicitly or implicitly covered anywhere in that document if they had lost their mind. Does anyone really think those who fought against a tyrannical monarch overseas would approve of a felonious one in office here at home?
But that is what Trump v. United States has brought us. And that is what we are likely to see starting a few minutes after noon on January 20, 2025.
God help us.