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The Worst Decision

Law professors like to debate among themselves which of the U.S. Supreme Court’s many opinions is the very worst.  There has been a general consensus that the most loathsome is the one in Dred Scott v. Sandford (1857), in which the Court decided that the right to hold slaves in the territories was a “fundamental right” protected by the Constitution that could not be abridged by Congress.  That decision was, in effect, overruled by the 13th Amendment, which abolished slavery.  Almost equally bad was the Court’s decision in Lochner v. New York (1905), which held that the same notion of “substantive due process” that prevailed in Dred Scott meant that, if a state mandated maximum-hours laws for workers, it impermissibly interfered with a constitutionally secured freedom of employers and employees to enter into contracts.  That understanding of the Constitution went by the board with the advent of the New Deal when the Court, faced with the overwhelming 1936 electoral victory of Franklin D. Roosevelt, and perhaps intimidated by FDR’s railing against the Court’s “horse and buggy” views of the Constitution and his threatening to pack the Court with nominees more favorable to his views, broadened the scope of permissible state and federal regulation.  Yet both Dred Scott and Lochner, as recent scholarship...

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