Considering the thousands of cases the Supreme Court has decided, it would be nearly impossible to decide one was the worst opinion ever.
But Nelson Lund, Patrick Henry Professor of Constitutional Law and the Second Amendment George Mason University School of Law, argued on Wednesday that it might be Lawrence v. Texas, in which the court struck down a statute prohibiting consensual homosexual sex.
“I want to begin by emphasizing that we do not believe that Lawrence is the worst decision that the court has ever made,” said Lund, who was a law clerk for the Honorable Sandra Day O'Connor of the United States Supreme Court before serving in the White House as associate counsel to the president from 1989 to 1992. “Although we do think it was decided incorrectly, it’s the appalling opinion to which we chiefly object.”
Lund disagrees with the court deciding Lawrence on substantive due process grounds and said it would’ve been better decided under the right to privacy from the Griswold v. Connecticut and Roe v. Wade line of cases. Using that line of cases, the course could have better overruled Bowers v. Hardwick, a 1986 case holding that a statute prohibiting sodomy was constitutional.
“Instead, the court issued a completely lawless and a nearly incomprehensible opinion,” Lund said. “In Lawrence, the Supreme Court stopped acting like a court and turned itself into something more like the Wizard of Oz.”
Lund argued that substantive due process has no basis in the Constitution. UF Law Professor Danaya Wright, there to comment on Lund’s speech, said she was sick of that argument and has heard it hundreds of times.
“If you believe, which I don’t, that the due process clause only protects criminal defendants from having their life, liberty, or property taken without a jury of one’s peers, and notice and an opportunity to be heard, then the real issue you should have is with judicial review,” Wright said. “In that sense, isn’t Marbury v. Madison really the worst opinion ever written? Isn’t that the case where judicial activism is given Constitutional legitimacy?”
Wright argued that checks on the legislature are important in a system based on the rule of law. She argued that in history, judges have gotten the law wrong a lot less than the legislature.
“When legislators pass laws that speak to a minority of their constituency and shirk their duties to promote the public welfare in order to cater to special interests, then judges have no choice but to do the moral and correct thing,” Wright said. “Freedom is a precious right, and I like that framers are far more concerned about the tyranny of overreaching legislators than the tyranny of the countermajoritarian judiciary.”
Lund also argued that Lawrence was a relatively unimportant decision.
“The statute that was struck down was a bad law and a relatively unimportant one. Anti-sodomy laws were almost never enforced and the rare prosecutions for such acts were necessarily capricious, so the direct effect of the court’s decision is likely to be extremely limited and largely salutary,” Lund said. “A few individuals will be spared the bad luck of getting a criminal conviction for violating laws that are manifestly out of step with prevailing sexual morays.”
Lund quoted the first paragraph of Justice Anthony Kennedy’s majority opinion in Lawrence and went through it in detail to show how little sense he thought it made, calling it “literally incomprehensible.”
Lund also said understanding Lawrence in the future may be troublesome.
“Whatever new rights the court may find or refuse to find among what Justice Kennedy calls ‘the components of liberty in its manifold possibility,’ whatever that means – Lawrence will stand for primarily for the proposition that due process jurisprudence has transcended the bounds of rational discourse,” Lund said.
