Constitutional Law’s Greatest Hits

Pop quiz, con law hotshots: What were the three most important constitutional law decisions of the U.S. Supreme Court in the last hundred years?

The Federal Bar Association posed that question Thursday to three eminent scholars — Ninth Circuit Judge John Noonan, Boalt Hall professor Jesse Choper and criminal defense stalwart Ephraim Margolin — sparking a lively discussion before an audience of about 50 at the Ninth Circuit U.S. Court of Appeals. There was one ground rule set down by the moderator, Hastings professor Rory Little: Brown v. Board of Education was off limits, because it’s too obvious a choice.

Noonan answered the challenge directly, quickly identifying three cases in which he said the court was “vindicating principle by protecting persons.”

In 1910’s Weems v. United States, the court struck down as cruel and unusual a sentence of 15 years of “cadena” — which meant “hard and painful labor” with the wrists chained to the ankle — for a larcenous Coast Guard officer in the Philippines. In 1943’s West Virginia Board of Education v. Barnette, the court ruled that public schools could not require students to salute the flag. “In the memorable words of Justice Jackson,” Noonan said, ” ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’ ” (Keep this in mind if Noonan gets assigned to Michael Newdow’s latest pledge of allegiance appeal.)

Noonan’s third choice was surprising in that it’s only three months old: Hamdan v. Rumsfeld, in which the court reined in President Bush’s authority to try military detainees. “Even in exercising his war powers, the president was not above legislative restraint,” Noonan said.

Choper took a more lawyerly approach to the matter, beginning by asking “What is ‘important’?” and then ticking off numerous cases that he considered very important, but that didn’t quite make the cut. (Those included the “three presidents cases” — Nixon, Clinton and Bush Furman v. Georgia, invalidating numerous death sentences, the Apprendi/Blakely/Booker trilogy on sentencing; Roe v. Wade, which had enormous social but relatively little doctrinal impact; Washington v. Davis, a 1976 ruling that rejected the disproportionate impact test for proving discrimination; and San Antonio School District v. Rodriguez, a 1973 ruling that ended the expansion of suspect classes entitled to heightened judicial scrutiny.

For the three really most important cases, Choper began with 1908’s Twining v. State of New Jersey, which first considered applying the Bill of Rights to the states, plus several subsequent cases that explicitly applied them. “That series of decisions counts for at least — and I think I’m low — 75 percent of all the constitutional decisions in the United States,” Choper said. He also liked League of United Latin Citizens v. Perry, the Texas redistricting case from earlier this year, and the 1976 campaign finance case Buckley v. Valeo — two monumentally important issues involving the political process where the court is still grasping for satisfying answers.

In keeping with his role as a criminal defense attorney, Margolin began by challenging authority: He would include Brown v. Board of Education, regardless of the rule set down by Little. “We simply cannot be the same people after Brown v. Board of Education, and that is why it is No. 1,” Margolin said.

Margolin considered but rejected Gideon v. Wainright, the 1963 case that established the right to a court-appointed attorney in criminal cases. “The concept is beautiful. But you also have the reality where we do not apply that concept very much,” Margolin said, referring to civil cases and states that still pay very little for appointed counsel. Instead, Margolin went for Washington v. Texas, 1967 case that prevented courts from excluding certain testimony in criminal trials “and declared that innocence counts, a lot.” His third pick was Roe v. Wade. “It speaks of the right of women to their bodies,” he said. “It speaks to [limits on] the criminalization of private conduct.”

For his part, moderator Little picked the 1965 privacy case Griswold v. Connecticut, which he pointed out set the stage for both Roe and 2003’s gay rights case Lawrence v. Texas (do you notice how Texas keeps popping up in these decisions?). Little’s second choice was Miranda v. Arizona, and his third was 1932’s Powell v. Alabama, applying the Bill of Rights to the states. For his also-rans he picked Nixon, the First Amendment case New York Times v. Sullivan, and NLRB v. Jones & Laughlin Steel, the 1937 case which cleared the way for the New Deal and kicked off rapid expansion of federal authority.

In the end what was supposed to be 12 cases mushroomed to 24, so it seems the panel covered all the bases. Then again, there was no mention of Lochner v. New York (sure, it’s 101 years old, but it’s not like the panel was unwilling to bend the rules), Engel v. Vitale , UC Regents v. Bakke or Loving v. Virginia, to throw out a few.

If there are any aspiring scholars out there who want to make a case for one of those, or some other momentous decision that didn’t rate a mention, please click the comment button below.

— Scott Graham

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3 Responses to “Constitutional Law’s Greatest Hits”

  1. Thomas R. Burke Says:

    New York Times Co. v. Sullivan (1964)

  2. Jason Mayo Says:

    All of the above referenced cases are noted for their advancement of constitutional ideals.

    However, wouldn’t it be arguable that the cases that will have a truly lasting and memorable impact will be the ones where the Supreme Court undermined constitutional civil protections. I am, of course, principply referring to Korematsu v. United States. However, Buck v. Bell and Bush v. Gore also fall into this category.

    After all, we remember our mistakes more than our triumphs. Dred Scott v. Sanford is a living testament to that.

  3. legalpad Says:

    Those are three excellent picks for worst decisions of the last 100 years. Professor Choper and Mr. Margolin both picked Bush v. Gore as runners-up for that reason, but I don’t believe anybody mentioned Korematsu (upholding Japanese-American relocation) or Buck (upholding forced sterilization statute).

    Anyone else have a pick for most appallingly bad decision of the last 100 years?

    — Scott Graham

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