Article III of the US Constitution states that “the judicial Power of the United States, shall be vested in one supreme Court,” whose job it was to decide on the critical cases impacting the nation and be the safeguarder of citizens’ rights. In the 20th century specifically, the highest court in the land became even more crucial, making groundbreaking political decisions in cases such as Brown v. Board of Education (1954), Miranda v. Arizona (1965), and United States v. Nixon (1974).
Yet despite their supposed role, during the 20th century, the Court made a number of decisions that history books will view with disdain. With these being three of the more egregious cases of Supreme Court injustice.
Please note this will exclusively deal with 20th century cases. As infamous as the decisions in Dred Scott v. Sanford (1857) and Plessy v. Ferguson (1896) both were, they will not be counted in this piece.
Buck v. Bell (1927)
Few Supreme Court cases are as truly depressing as the case of Buck v. Bell.
In 1924, the Virginia Steralization Act came into force, which allowed for the steralisation of the intellectually handicapped for the “health of the patient and the welfare of society.”
One such victim forced into compulsory steralisation was 17-year-old Carrie Buck. Like her mother, she was institutionalised, with her foster parents forcing her to be committed to the Virginia State Colony for Epileptics and Feebleminded.
Although the steralization was aimed to prevent reproduction, Carrie already had a daughter, albeit through tragic circumstances. Buck was raped by her foster parents’ nephew and she would go through with the pregnancy. Sadly, Vivian – as she was later named – died at just eight years old.
The case made its way up to the Supreme Court with the defense arguing the law contravened the Fourteenth Amendment’s Due Process Law which states that no person should be deprived of “life, liberty, or property, without due process of the law.”
Citing the precedent set by the Jacobson v. Massachusetts (1905) in which the Court upheld a state vaccine mandate, the Court ruled 8-1 in favour of the 1924 law.
The opinion was written by Oliver Wendell Holmes Jr., whose explanation has become notorious. In it, he wrote: “It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”
He ended it with the blunt line: “Three generations of imbeciles are enough.”
A major win for the eugenics movement, it paved the way for 70,000 steralisations across the United States during the 20th century. Even more soberingly, during the Nuremberg trials, Nazi scientists cited the ruling as justification for their actions; during the Nazi regime, as many as 400,000 untermensch (undesirables such as Jews, Roma, Slavs) were steralised.
Korematsu v. United States (1944)
On December 7th 1941, Japan launched an unexpected sneak attack on the Pearl Harbour naval base in Honolulu, Hawaii, killing over 2,400 people and injured well over 1,000 more.
In February 1942, President Franklin D. Roosevelt declared Executive Order 9066, which had the effect of forcing over 100,000 Japanese-Americans into concentration camps or “relocation centers”. This was inspired partly by the Roberts Commissions, chaired by Supreme Court Justice Owen Roberts, which claimed espionage and disloyalty on the part of Japanese-heritage citizens living in the United States.
One person who defied the order was the California-born Fred Korematsu, the son of Japanese parents. Not wanting to leave his life in San Leandro behind, the 23-year-old refused to comply before being taken by force by authorities.
Backed by the American Civil Liberties Union (ACLU), Korematsu took the case all the way to the Supreme Court, the case was argued in October 1944.
In December, the Court reached the decision 6-3 that the Executive Order was constitutional, rejecting the Korematsu argument that the internment violated the Fifth Amendment. It was influenced somewhat by a case the previous year, Hirabayashi v. United States (1943). The criticism has also been risen that all but one sitting justice was appointed by President Roosevelt.
Writing for the majority opinion, Justice Hugo Black (a former member of the Ku Klux Klan) argued that such a provision was justified in wartime in for the reason of defense, further adding that Korematsu was not punished for his race but due to the fact that American was at war with the Japanese Empire.
The three justices who ruled against each had their own dissent, none more powerful that that of Justice Frank Murphy, who stated that it effectively legalised discrimination and represented “the ugly abyss of racism.”
In the 1980s, Korematus had his name cleared and awarded a restitution payment, the latter paired with an apology in the Civil Liberties Act of 1988. He was awarded the Presidential Medal of Freedom by Bill Clinton in 1998.
In 2018, the Supreme Court finally overruled Korematsu, with Chief Justice John Roberts writing: “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution.’”
Despite the eventual overturning and honours bestowed upon Korematsu, the original 1944 decision remains detested. In the aforementioned Buck case, we touched on the correlation with Nazi Germany, and the confining of an innocent minority in concentration camps is a startling similarity.
Survivor George Takei later called the decision “the most shameful chapter in American history.”
Bowers v. Hardwick (1986)
In August 1982, a police officer arrested Michael Hardwick, charging him with violating an archaic and little-used Georgia anti-sodomy law. This forbade even consensual sex – oral or anal –between two members of the same gender in private.
The true events that took place are slightly more devious than that however, with the officer sneaking into the house on an invalid warrant from a public drinking charge. When he got to the bedroom, he found Hardwick and another man engaging in consensual sex. He later said he would not have charged him had the disturbed Hardwick not had an “attitude problem.”
Bowers in the case title refers to Georgia Attorney General Michael Bowers, who appealed to the Supreme Court after Hardwick had won in the Court of Appeals for the Eleventh Circuit.
The Supreme Court heard the arguments in March and decided in June.
In a close 5-4 decision, the Court upheld the Georgia law, noting the Constitution offered no explicit protections for homosexual relationships. Notably, at the time, about half of the US states had similar anti-sodomy laws on the books.
One of the more revolting aspects of the case was the attitude of Chief Justice Warren Burger.
Although the majority opinion was written by Justice Byron White, Burger continually tried to get White to outwardly condemn homosexuality. Additionally, when he found Justice Lewis F. Powell, Jr. was planning on dissenting, Burger sent a letter comparing homosexuals to Jack The Ripper.
Burger’s anti-gay tirade has been described as “edging towards hysteria”, as demonstrated by his opinion. In it, he wrote that “Condemnation of [homosexuality] is firmly rooted in Judeo-Christian moral and ethical standards.” Even more alarming was his comment that gay sex was “an infamous crime against nature, of deeper malignity than rape, and an act not fit to be named, the very mention of which is an affront to human nature.”
Meanwhile, Justice Harry Blackmun held little back in his dissent, berating Burger’s use of a law from the era of Henry IV in his ruling. In his conclusion, he did not use the customary “I respectfully dissent” but rather just “I dissent”, perhaps a final dig at the decision. Elsewhere, Justice Powell, who in the end sided with the majority, later expressed regret at the decision.
The decision set back the LGBTQ+ movement many years. It was not until 2003 that the case Lawrence v. Texas overruled this precedent. In that case, Justice Anthony Kennedy (the swing vote in the Obergefell v. Hodges case in 2015 that required all states to recognise same-sex marriages) wrote: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
Sadly, Michael Hardwick did not live to see his case overturned, having died of AIDS in 1991.
A horrible decision that would likely not be upheld today even by the most conservative of justices, The New York Times referred to it as a ruling that “dramatically reflected the general acceptance of anti-gay hostility.”
GRIFFIN KAYE.
