Are all persons created equal?

The 50th anniversary of Roe v. Wade is a good time to take a step back and ask which of the 25,000-plus majority opinions issued by Supreme Court justices are among the worst. To answer this question, we surveyed more than 100 leading self-identified conservative and libertarian legal scholars. Although the 50 who responded disagreed among themselves, there was widespread agreement that the worst opinions denied the full humanity of others.

By far and away, Dred Scott v. Sandford (1857) was considered to be the worst decision ever handed down by Supreme Court justices. The majority opinion, by Chief Justice Roger Taney, held that African-Americans “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” In other words, African-Americans, whether enslaved or free, could never be citizens of the United States and their rights need not be respected as a matter of federal law. Moreover, Dred Scott held that Congress had no power to prohibit the spread of slavery into federal territories.

Fortunately, Dred Scott was overturned by the Thirteenth and Fourteenth Amendments to the Constitution (one of four Supreme Court decisions to be overturned in this way). These amendments did much to recognize the majestic principles, articulated in the Declaration of Independence, that all persons are “created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

Alas, the justices ignored this principle again when they decided what our scholars considered to be the second worst majority opinion ever handed down by the Supreme Court: Roe v. Wade (1973). As in Dred Scott, the majority again determined that some citizens are not quite human and therefore unworthy of being protected as a matter of law.

We understand that some of our fellow citizens continue to deny the humanity of unborn children, but medical science has made this view increasingly implausible. Thankfully, just last year the Supreme Court overturned Roe in Dobbs v. Jackson Women’s Health. The ruling does not prohibit abortion, but simply returns the matter to the states. We urge state legislators to make every effort to extend the full protection of the law to all citizens, whether born or unborn.

Dred and Roe both stand for the proposition that some citizens do not need to be protected as a matter of law. According to conservative and libertarian scholars, four additional cases reflect this idea: Plessy v. Ferguson (1896), permitting states to discriminate against African Americans; Planned Parenthood v. Casey (1992), affirming Roe’s central holding while recognizing its faulty reasoning; Buck v. Bell (1927), upholding involuntary sterilization because “three generations of imbeciles are enough”; and Korematsu v. United States (1944), upholding the internment of Japanese-Americans during the Second World War.

One would expect conservative and progressive legal scholars to differ widely on the Court’s worst decisions, but we think it striking that progressives would almost certainly rank Dred Scott, Plessy, Buck, and Korematsu as among the justices’ worst opinions. To be sure, many jurisprudential liberals disagree with conservatives about whether there is a constitutional right to abortion, although many progressives recognize that Roe had no sound basis in the Constitution.

Conservatives also rank three cases involving privacy and LGBT rights as among the Court’s worst decisions: Griswold v. Connecticut (1965), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015). The first two rulings invalidated statutes prohibiting use of contraceptives and homosexual sodomy, and the third required legal recognition of same-sex marriages. Our respondents’ criticism of these decisions, we suspect, might have less to do with the outcomes and far more to do with the fanciful legal reasoning used by justices to reach them.

Finally, conservatives and libertarians think that Wickard v. Filburn (1942) was improperly decided. The majority opinion in this case expanded Article I, Section 8’s Commerce Clause to include practically all economic activity, thus opening the door to permit Congress to regulate almost anything it desires.

Reasonable people, including legal scholars, disagree about which Supreme Court decisions are to be praised and which are to be condemned. And yet it seems clear that history will not judge well those jurists (and legislatures) who have denied that all persons are created equal and deserve the full protection of the law.