The Five Dumbest Supreme Court Decisions

...Only Joshua was not dead, just comatose...

...Who can blame them for trying to share the wealth...

...According to the logic in his decision, police officers are not required to stop crimes in progress, nor are firemen responsible to put out fires...

...DeShaney denied abusing his son, and no action was taken...

...After all, "he knows that he must stop for the train, not the train stop for him...

...At the time Massiah was being considered, the Warren Court was still riding the crest of the two most important right-to-counsel decisions of the century, Spano v. N.Y...

...It isn't often that it can be said that a unanimous Supreme Court got something 100 percent wrong, especially when the driving force behind the error was one of the greatest legal minds in this country's history...

...Enforcing that view, the Court has staunchly upheld the Hatch Act, which prohibits political activity on the part of government workers...

...An overhanging tool shed had obstructed the view of the railroad tracks and although he slammed on his brakes, there was nothing he could do to prevent crashing into the train...

...In his dissent to Elrod, Powell acknowledged the theoretical attractiveness of banning political patronage, yet cautioned his colleagues against taking theory where it clearly does not belong...

...Massiah v. U.S., 1964 Herald "High" Price Fahringer likes this decision a lot...

...What is surprising is that during the two years when the caseworker had solid evidence of child abuse, she did nothing to stop it...

...And given the difficulty in firing government employees, the justices—patronage hires themselves—basically gave these political appointees life terms...

...Powell, who tried desperately to find some middle ground, first voted against the Georgia law, but eventually added his name to the majority opinion written by Byron White...

...No legal action was taken, but the caseworker began to make regular calls on the DeShaney household, noting on several occasions bruises, abrasions, and injuries that would indicate child abuse...

...In each case, the Republican political appointees filed suit, claiming that firing them solely on the grounds of their political party affiliation violated their First Amendment rights...

...The judge in the case denied Clarence Gideon's requests for an attorney, forcing the nearly illiterate man to defend himself...

...She lost the case in a U.S...

...Five months later, the caseworker received the call she had been expecting all along...

...Elrod v. Burns, 1976, and Branti v. Finkel, 1980 DeShaney made it nearly impossible to sue government workers when they make mistakes...

...Joshua's mother took the case to court on behalf of her son, claiming that the Wisconsin DSS was responsible for damages...

...he made them because they were true...

...District Court, appealed to a Court of Appeals, and lost again...

...First of all, Massiah was never denied counsel...

...In Branti there was a similar scenario: The Rockland County (New York) public defender, Peter Branti, a Democrat, refused to reappoint assistant public defenders Aaron Finkel and Alan Tabakman, who were appointed by Branti's Republican predecessor...

...It was 1927, and America was just beginning to realize, perhaps not as profoundly as Goodman, that the country was not designed for the automobile driver...

...The Fifth Amendment states that a person cannot be compelled to make self-incriminating statements...

...They just made sure they were there when he did...

...In Elrod, the Court ruled that "nonpolicy-mak-ing, nonconfidential" employees cannot be fired for their party affiliation...

...But some pigs, Ross Perot and Michael Huffington among them, have a little more freedom than the rest of us...

...Its importance was perhaps never better stated than by Tammany Hall's George Washington Plunkitt: First, this great and glorious country was built up by political parties...

...Protecting them even further, Elrod and Branti make it nearly impossible to fire them as well...

...Anybody who knew about Joshua's father's repeated and vicious beatings of the four-year-old could have come to the same conclusion...

...It is a sad postscript to Bowers that Powell admitted after his retirement from the Court in 1987 that he had been wrong...

...Or at least that was what the Court concluded in Buckley v. Valeo, the decision that ruled unconstitutional any limit on the amount of money a federal candidate could spend on his campaign, whether the money is his own or donated to him, on the ground that a limit would abridge the candidate's right to free speech...

...third, if the parties go to pieces, the government they built up must go to pieces, too...

...The Warren Court, however, used these rights to handcuff police and prosecutors to the point where a criminal can reasonably expect never to see the inside of a prison cell...

...But the Brethren didn't find it strange at all...

...The Five Dumbest Supreme Court Decisions A stroll through the Brethren's Hall of Shame BY DANIEL FRANKLIN Nathan Goodman's truck was only eleven-and-a-half feet from the railroad tracks when he first saw the oncoming train...

...Rather, the burden of safety depends entirely on the driver...

...cutions of Communist party leaders were justified on the basis that the mere advocacy of Communist doctrine was a crime...

...The facts of the cases are simple...

...A man has been indicted, and the government takes a confederate and induces him to go to this man and take [self-incriminating] statements...

...I should be able to give money in exchange for a vote on a particular bill," says American University law professor Jamin Raskin...

...The case before the Court would decide whether Georgia's statute outlawing sodomy between consenting adults was unconstitutional...

...Candidates who outspend their opponents almost always win their elections...

...Why could the Court only see the evils of patronage, and not its benefits...

...In 1958, Winston Massiah, along with several codefendants, was arrested, read his rights, arraigned and indicted on charges related to the smuggling of three-and-half pounds of cocaine into the United States...

...That dwarfs the previous record of $17.7 million held by Jesse Helms, who needed every penny to ward off challenger Harvey Gantt in 1990...

...But there was no threat of violence when Massiah made his statements...

...He very well could have included the rest of us as well...

...Burger's concurring opinion was even more strident: Anti-sodomy laws have "ancient roots," he wrote, dating back to the Bible and the Roman Empire (both of which, he must have known, also condoned slavery and burning witches...

...Both sides have lawyers present their case in a process that can take months to complete...

...Massiah pleaded not guilty to the charges and was freed on bail...

...Gideon, immortalized by Anthony Lewis' book Gideon's Trumpet, involved a crook who had broken into a pool hall...

...Massiah represents yet another obstacle to the police's efforts to convict criminals...

...This time, the hospital delayed giving Joshua back into the custody of his father and convened a panel of social workers, a pediatrician, a psychologist, a police officer, and the Winnebago County lawyer to consider the immediate danger to Joshua...

...Luckily, he was only injured...

...Therefore, Holmes concluded, any driver approaching railroad tracks must stop his car, get out, and walk up and down the tracks to make certain no train is coming before he can go on his way...

...Consequently, bad workers remain in their jobs and the government's performance suffers...

...They found a more receptive welcome from the Supreme Court...

...In Branti, the Court went even further, ruling that even policy makers could be exempt from political firings if the official trying to remove them could not prove that party loyalty was required by the duties of the positions...

...The rights of the accused are in place to protect the defendant from being railroaded by overzealous or outright corrupt police and prosecutors...

...Here are a few inane decisions that are the law of the land and shape—for the worse—the way we live today...

...How could Holmes have been so backward and blind...

...Buckley v. Valeo, 1976 The commune depicted in George Orwell's Animal Farm is founded on one commandment: "All animals are created equal...

...He has probably handled more appeals on behalf of mobsters than any other lawyer in New York City, if not the entire country...

...The undemocratic effect of the Court's ruling has never been more apparent than it is today...

...It argued that homosexuality was a historical taboo, and its inherent immorality made it vulnerable to the state's prohibition...

...Wisconsin prescribes clear duties for the DSS...

...Rehnquist's decision has built a nearly insurmountable barrier to suing government officials on the ground of negligence...

...In an interview with a social worker, Mr...

...Unchecked, any candidate can dig deep into his own pocket or what he can raise from PACs to appear as a latter-day Demosthenes...

...As had been done for decades, the new sheriff fired his predecessor's political appointees and replaced them with his own...

...Bowers v. Hardwick, 1986 Until the last minute, Justice Lewis Powell wasn't sure on which side he would vote...

...In a six-to-three decision written by Justice Potter Stewart, the Court held that federal agents violated Massiah's Fifth Amendment right not to incriminate himself, and his Sixth Amendment right to counsel...

...This is no small feat...

...It's because a limited patronage system is necessary to the two-party political system...

...In January 1992, Randy DeShaney's second ex-wife (Joshua's stepmother), reported to the police that her ex-husband beat the boy regularly...

...It would never get anything done if every position was newly filled every four years...

...The plight of Goodman, a professional truck driver, could not have been more alien to him...

...Massiah v. U.S has helped him do his job on a number of occasions...

...A federal agent sitting in a car about a block away was listening to the entire conversation...

...a dismissal hearing has the potential to take on the dimensions of a full civil suit...

...Wrote Chief Justice Rehnquist: "[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors...

...Without the ability to hire people who share his beliefs, an elected official's efforts to streamline, or, in the current nomenclature, reinvent government, have no chance of succeeding...

...Neither the railroad company nor the train's engineer has any responsibility to warn oncoming drivers, Holmes wrote...

...Helms and Huffington wouldn't be so extravagant if they didn't think it would do some good, and they're right...

...And if someone else can offer more money, he's just speaking more eloquently...

...Justice Oliver Wendell Holmes, writing for a unanimous Court, stated that to prevent circumstances when "the accidental feelings of the jury" could decide personal injury claims, the Court needed to establish a steadfast rule by which the lower courts could decide liability...

...Agreement on politics can come in addition to, not instead of, professional skill...

...The immediate effect of the Court's decisions was to cement the positions of the outgoing Republican administration's political hirings...

...Huffington, the California multimillionaire who spent $5.4 million of his own fortune to win a seat in the House of Representatives in 1992, is expected to shell out a record $25 million challenging Senator Dianne Feinstein this year...

...It was, but consider the context...

...It's not surprising she had this premonition...

...A balance between the two must be maintained...

...Almost dismissively, he said, "I think I probably made a mistake in that one...

...Despite the unexplained injuries and DeShaney's ex-wife's charge, they decided that there was not enough evidence to take Joshua away from his father and returned the boy to his custody...

...Referring to Blackstone's commentary on English law, he described homosexuality as '"the infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature.'" In conclusion, he argued that protecting sodomy "would be to cast aside millennia of moral teaching...

...The two precedents are used as the foundation of Stewart's decision in Massiah, but you'd be hard-pressed to find similarities between the cases...

...The best answer to date comes from Mickey Kaus, who noted in a 1980 Monthly article on Branti that Supreme Court justices tend to be what Oliver Wendell Holmes called Jobbists...

...W]e deal here with a highly practical and rather fundamental element of our political system, not the theoretical abstractions of a political science seminar...

...As the justices debated the case in conference, their opinions began to polarize and harden: Justices Burger, White, Rehnquist, and O'Connor found for Georgia, while Justices Marshall, Blackmun, Stevens, and Brennan voted to strike down the law...

...Patronage actually increases democracy in a given political system by allowing elected officials a freer hand in choosing their staff...

...Massiah was convicted, but his lawyers appealed on the ground that the bug represented a violation of the defendant's right to counsel, only to have the initial conviction affirmed by an appellate court...

...the wealthy few could claim a constitutional guarantee to a stronger political voice than the un-wealthy many because they are able to give and spend more money, and because the amount they give and spend cannot be limited...

...The Court ruled that limiting a candidate's spending "reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached...

...When most people think of patronage hirings they envision a mayor giving a secretarial job to his mistress, despite the fact that she can't type...

...The report was referred to the Wisconsin Department of Social Services, which handles all accusations of child abuse...

...The Court seems to think that it's easy for an official to shape his or her own team...

...The price of participating in the political process climbs ever higher...

...To be sure, a government of unregulated patronage hirings isn't much good either...

...Similar to the animals in Orwell's classic, every American citizen has the freedom of speech...

...She finally appealed to the Supreme Court, where she lost one last time...

...The vote was four to four...

...An employee can only be fired if the supervisor can prove incompetence or insubordination before a hearing board...

...Together, Elrod and Branti strike at the heart of an essential element in American democracy—political patronage...

...According to the Center for Responsive Politics, candidates in 1992 who outspent their opponents won more than 85 percent of the time...

...At the time of the "interrogation" (as Stewart put it) Massiah had every opportunity to have his attorney with him...

...No sooner was it passed, though, that an unlikely assortment of politicians and civil libertarians, including New York Republican Senator James Buckley, presidential candidate Eugene McCarthy, and the New York Civil Liberties Union filed suit against the new law saying it restricted their political speech because, they claimed, "virtually all meaningful political communications in the modern setting involve the expenditure of money...

...second, parties can't hold together if their workers don't get offices when they win...

...During a 1990 appearance at New York University Law School, a student asked Powell to justify his vote on the case...

...It's no wonder he feels the way he does...

...The current members of the Supreme Court would do well to remember it...

...fourth then there'll be hell to pay...

...in 1958, and Gideon v. Wainwright in 1962...

...In other words, the Court was giving the patronage employees the same deal it has itself: get a job through politics then have it forever insulated from a turn of the political wheel...

...That November, Joshua was again admitted to a hospital, again inspected by the caseworker, and again returned to his father's custody...

...The claims that Massiah should be protected under the Fifth Amendment are equally absurd...

...All reports of possible child abuse are supposed to be directed to the DSS caseworker...

...It is a warning that in one way or another applies to all the cases mentioned here...

...Most potential negligence suits against government officials aren't even filed because DeShaney makes the government virtually unaccountable for their mistakes...

...announced an intention to protect a certain class of citizens and has before it facts that would trigger protection under the applicable state law, the Constitution imposes upon the State an affirmative duty of protection"—a duty the DSS did not fulfill...

...Every newly elected official has an idea of what government should look like and how it should work...

...and Plessy v. Ferguson, which in 1896 affirmed segregation and facilitated Jim Crow's hold on the South for another two generations...

...Campaign spending for 1992 jumped 52 percent from two years earlier and with Ollie North and Huffington leading the way, 1994 is shaping up to be much the same...

...The petitioners in each case owed their jobs to the same system they attacked as unconstitutional...

...In cases of child abuse, then, the DSS assumes the role held by a police department, and therefore has the same responsibilities to protect those under its jurisdiction as the police...

...Hardwick paid the fine, but it had not been processed before a police officer was sent to Hardwick's Atlanta home one morning to serve him a warrant...

...Justice Blackmun, in a separate dissent, exclaimed "Poor Joshua...

...A U.S...

...Hardwick's attorney argued that the case presented a right to privacy issue: that the choice of whom to have sex with was something beyond the state's jurisdiction...

...Even though these decisions have been overturned, the Court over the past 30 years has come up with some decisions worthy of their, to be kind, less-than-perfect predecessors...

...Fahringer is a mob lawyer, and one of the best...

...In short, money is equivalent to speech, and is therefore inviolable...

...Only one-third of reported violent crimes end with the perpetrator convicted...

...But there's a reason the framers of the Constitution gave the High Court lifetime tenure while leaving patronage in place...

...In the first, Richard Elrod, a Democrat, replaced Joseph Woods, a Republican, as sheriff of Cook County, Illinois...

...Goodman sued the Baltimore & Ohio Railroad Company and won, but the railroad appealed the decision to the Supreme Court...

...In 1974, Congress passed a set of amendments to the Federal Election Campaign Act that placed the spending limits on federal candidates...

...The deafening sound you hear is not the free exchange of political ideas, but the trampling of the democratic process...

...And the federal agents didn't compel Massiah to make them...

...But the pigs, who fancy themselves the ruling species, tack on an amendment: "But some animals are more equal than others...

...In Spano, the Court reversed a murder conviction that was based on a confession obtained after eight hours of intense police interrogation...

...One year later, Joshua was again admitted to a hospital with suspicious bruises and abrasions...

...By the time an administration had things up and running, they would already be on their way out...

...Oink...

...One's political beliefs, according to the Court's formula, are reduced to the importance of, say, one's taste in literature—personally significant, but professionally irrelevant...

...The damage to his brain was so severe that he is expected to spend the rest of his life in a home for the severely mentally retarded...

...When the officer opened the door, he saw Hardwick engaged in oral sex with another man...

...As Justice Brennan's dissent, joined by Marshall and Blackmun, points out, "when a State has —'by word and by deed...

...Even if a defense attorney knows his client is guilty, he still has a responsibility to defend him as best he can...

...But the state, through the DSS social worker, did indeed have a responsibility to remove Joshua from his father's custody...

...Georgia Attorney General Michael Bowers (he still holds the position) countered by arguing that the right to privacy is not guaranteed in the Constitution and that the Supreme Court would be inventing a right (as many argued it did in Roe v. Wade) by asserting that there was a constitutional right to homosexual sex...

...The patronage system offers elected officials the chance to fully implement their plans for government with subordinates who have the same political goals...

...How is that official to realize his vision if he is saddled with people hired by an administration that held a distinctly different view of government...

...Faced with the prospects of these dismissal hearings, administrators often decide firing an employee simply isn't worth the effort...

...It's no wonder that campaign spending is snowballing...

...Even when Randy DeShaney's second wife reported to the police that her husband was abusing Joshua, the police, rather than arresting Randy, called the DSS...

...If an individual's political beliefs have no place in government, then where do they have a place...

...A friend of Hardwick's who had spent the night in the house let the officer in and pointed him in the direction of Hardwick's bedroom...

...I'm only speaking...

...In truth, bad civil servants are harder to get rid of than termites, and far more destructive...

...It would be strange indeed," Judge J. Skelly Wright wrote, "if...

...Take Bradwell v. Illinois, in 1873, when the Court ruled that the State of Illinois could bar women from becoming lawyers because, they reasoned, God made women inherently inferior...

...Bowers v. Hardwick had begun rather innocently in the summer of 1982, when Michael Hardwick was cited for carrying an open beer bottle in public...

...Gideon was subsequently convicted, but had it overturned after he appealed to the Court in a hand-written note describing his situation...

...Even bribery must be allowed...

...Nonetheless, it provides a textbook example of how smart justices can come up with dizzyingly dumb decisions...

...The officer arrested both men on the charge of sodomy, a prohibition not enforced since 1935, and brought them to the police station...

...he simply chose not to...

...Massiah did not know, however, that Colson was cooperating with the prosecutors and had his car bugged...

...DeShaney v. Winnebago County, 1989 When the Wisconsin social worker assigned to the case of Joshua DeShaney heard he was in a life-threatening coma, she said, "I just knew the phone would ring some day and Joshua would be dead...

...He had his own attorney, and the meetings between the two were not obstructed or spied upon by federal agents in any way...

...Jobbists believe that a person can check his beliefs at the door of his office, and pick them up again on his way home...

...Holmes' decision was overturned seven years later...

...This leaves a bureaucracy full of workers with no other incentive than personal advancement...

...White's opinion is a paradigm of bluster and bigotry...

...Court of Appeals upheld the law, arguing that the country had a responsibility to limit the political power of the wealthy relative to the rest of the population...

...During the conversation, Massiah made several statements indicating that he was in fact guilty...

...But if money is speech, then limits on political contributions should also be unconstitutional...

...or Dennis v. U.S., in 1950, in which Smith Act proseResearch assistance provided by Alison McCready and Rachel Van Dongen...

...And then, of course, there are the truly infamous: Died Scott, which in the process of returning a freed slave to his owner the Court affirmed that slaves were in fact property...

...It probably had something to do with the fact that the good Justice had never sat behind the wheel of a car...

...But there's no reason that the same skill standards that are in place in the civil service can't apply to patronage hirings as well...

...As one candidate spends more, his or her opponent is in turn forced to cozy up to PACs and wealthy political patrons...

...A month later, Joshua was again admitted to a hospital...

...Lawyers are the ultimate Jobbists, because their fundamental duty is to protect the interests of their client, no matter what...

...The notion that these people will work with as much determination as someone who feels a sense of commitment to a greater purpose is wrong...

...Shortly afterwards, Massiah was discussing the case in the car of one of his codefendants, Jesse Colson...

...Sound crazy...

...Powell, attempting to reconcile his respect for the right to privacy with an instinctive disgust with homosexuality, sat divided in his own mind...

...That, in its nature, is very shocking," he says...

...Some apolitical civil servants are vital to efficient government for the sake of continuity, just as a competence-respecting patronage system is vital for an official's ability to implement his own policy...