It’s easy to make lists of the worst Supreme Court decisions of all time, and libertarians are constantly criticizing the Court for not doing enough to protect constitutional liberties. But now, libertarian lawprof Brad Smith asks for a list of the ten best Supreme Court decisions from a libertarian point of view.
As I see it, the cases on the list should 1) uphold important principles, and 2) actually have had a substantial real-world impact by preventing large-scale injustices. They should also, of course, be legally correct. Criterion No. 1 rules out a large number of Supreme Court decisions that protect only relatively minor freedoms (for instance those limiting minor instances of government endorsement of religion). Criterion No. 2 rules out many cases where the Court struck down liberty-infringing laws that were already on their way out and rarely enforced. For example, Lawrence v. Texas invalidated anti-sodomy laws, a truly barbaric form of legislation that egregiously violated the liberty of gays (and occasionally a few heterosexuals). But by 2003, when Lawrence was decided, only a few states still had anti-sodomy laws and even they almost never enforced them. For this reason, Lawrence had only a modest real-world impact. Had it been decided in 1903 or 1953, it might have had a much greater effect, though it is almost impossible to imagine the Court taking such a step at those times.
Given my criteria, the Peonage Cases of the early 1900s surely rank high, as they enabled numerous southern blacks to escape a system of forced labor and did so at a time when Jim Crow racism was at its height, and the political branches of government showed little willingness to protect black rights. Also worthy is Buchanan v. Warley (1917), which struck down racially based zoning, and helped prevent US state-imposed segregation from becoming as bad as that in South Africa under the Group Areas Act. Although it did not lead to much actual racial integration, Buchanan enabled blacks to move into many areas that would otherwise have been closed to them. David Bernstein and I discuss both the peonage cases and Buchanan in some detail in this article.
I also agree with Brad’s nomination of Schechter Poultry v. United States (1935) , which invalidated the National Industrial Recovery Act, the most sweeping effort at economic central planning in all of American history. Enacted in 1933, the NRA cartelized nearly the entire nonagricultural economy; by raising prices and wages above market-clearing levels, it also increased unemployment and lowered industrial production at a time when both were already reeling from the Great Depression. I discuss the NRA and its impact in more detail in this article (pp. 649-53). Unlike most other 1930s decisions striking down New Deal laws, Schechter was never directly overruled. And the NRA was never reenacted, though the New Deal-era Congress did go on to pass a number of ill-conceived laws cartelizing individual sectors of the economy.
As a general rule, the Court is limited by political constraints and the justices rarely act to protect individual rights or limit government power in cases where the political branches and majority public opinion are against it. The very best Supreme Court decisions tend to be exceptions to this pattern.