1CSo many bad cases; so little space to examine them. 1D 13 1CThe Dirty Dozen, 1D page 5

In September 2008, Katie Couric interviewed both major parties 19 vice-presidential candidates on television and asked each of them the same question: Which Supreme Court rulings do you disagree with? Republican Sarah Palin was embarrassed to admit that aside from Roe v. Wade, she could not think of any, while Democrat Joe Biden was more voluble, coming up with several, including a ruling that struck down a measure of his own that would have stretched the meaning of the Constitution 19s already far-stretched 1Ccommerce clause. 1D This led one wag to observe that 1CSarah Palin has no idea about the Constitution at all, and Joe Biden has no idea about the Constitution that isn 19t scary. 1D

18The Dirty Dozen, 1D which is subtitled 1CHow Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 1D is the book that should have been on Palin 19s summer reading list in 2008. Written by attorneys Robert A. Levy and William Mellor, it was published in early 2008 14plenty of time for the then-governor of Alaska to have bopped down to the Barnes & Noble in Anchorage and picked up this relatively accessible book. (It was also available online from Amazon.com, of course.)

While the former governor might not have agreed with every opinion expressed, this book is a good starting place for anyone to think about what makes a bad legal opinion. The authors 19 explicitly lay out their criteria. (And they only deal with cases since 1933 because, while there were plenty of bad rulings before that, many of them no longer have any force of law; for example, Dred Scott v. Sandford (1857), which upheld slavery, 1Cwas superseded by the Fourteenth Amendment (1868). 1D) They openly take a libertarian-conservative approach in analyzing what humorist P.J. O 19Rourke says on this book 19s flyleaf are 1Cthe twelve worst Supreme Court rulings so far. 1D Actually, the book discusses more than twelve high court rulings; there are at least twenty-one decisions given special attention by Levy and Mellor. There is also a 1CTable of Cases 1D that lists some 100 rulings that are at least mentioned in the book. Further, in his preface, distinguished law professor Richard A. Epstein gives his opinions about the authors 19 choices and disagrees in two or three instances, substituting some decisions that he would put on his own list of worst Supreme Court rulings.

The book is neatly arranged so that you can see from the table of contents what the authors are getting at. Part One is entitled 1CExpanding Government, 1D and Part Two is called 1CEroding Freedom. 1D The chapter headings give further telling clues. In Part One we have 1CPromoting the General Welfare 1D referring to Helvering v. Davis (1937) where the Supreme Court not only expanded the meaning of that phrase in the Constitution but essentially said that Congress can pass any law it wants and the Supreme Court won 19t necessarily scrutinize it to see whether or not it 19s Constitutional. (Isn 19t that their number one job?) It should be noted that conservative jurists have often taken that very approach, trusting the legislature or even un-elected administrators to know what they are doing when they make up laws and rules for which the Constitution has given them no authority. In one of the few cases where Justice Clarence Thomas disagreed with Justice Antonin Scalia 14United States v. Bajakajian (1998) 14the case turned on just such an issue. Scalia more or less argued that U.S. Customs is entitled to make whatever administrative rules they think are necessary, whereas Thomas countered that they are not entitled to make up rules that violate constitutional protections.

In almost every chapter, the authors list not only the case that made their Dirty Dozen list but also a similarly bad ruling that they award 1Cdishonorable mention. 1D For example, in chapter nine, they feature Kelo v. City of New London (2005), a case in which the high court ruled that a local government was within its rights to seize people 19s homes and then turn them over to private developers, but the authors also discuss another ruling in the same area of law (called 1Ceminent domain 1D), Berman v. Parker (1954), which they consider almost as bad.

So here are some of the case names along with their respective issues: The first three the authors call misinterpretations of Article I of the body of the Constitution. The rest are said to be violations of amendments to the Constitution, and I 19ll put each relevant amendment in brackets []. Helvering v. Davis (1937) expanded the meaning of 1Cgeneral welfare 1D to promote redistribution of wealth; Wickard v. Filburn (1942) expanded the meaning of 1Cinterstate commerce 1D to cover activities that are not interstate or commerce or even legal; Home Building & Loan Association v. Blaisdell (1934) not only interfered with private contracts, but it could be seen as the first in the series of steps leading ultimately to the recent mortgage meltdown and our current economic crisis; McConnell v. Federal Election Commission (2003) [First Amendment] eroded free speech by interfering with the right to support or criticize political candidates; United States v. Miller (1939) [Second Amendment] undermined the right to possess firearms; Korematsu v. United States (1944) [Fifth Amendment] upheld the arrest and detention of American citizens 1Cwithout charge indefinitely 1D; Thanks to Benis v. Michigan (1996) [Fifth and Fourteenth Amendments] your property can be confiscated and not recovered even if you are never charged with a crime; United States v. Carolene Products (1938) [Ninth Amendment] enshrined the idea that you can be engaged in a legal business selling goods at a fair price but your competitors can claim that you 19re engaging in unfair competition and the Supreme Court will back them up; Grutter v. Bollinger (2003) [Fourteenth Amendment] held that it is necessary to practice discrimination in order to end discrimination.

Included in the after matter are two postscripts discussing why Roe v. Wade (1973) and Bush v. Gore (2000) did not make the 1Cdirty dozen 1D cut. The reason has to do with the authors 19 criteria for choosing their cases. To make the list, cases 1Cshould be defined in terms of their outcome, not merely bad legal reasoning. 1D 1COutcome 1D does not just mean that you don 19t like the result but that, for example, the ruling decided public policy in a way that would not have happened otherwise if the court had not stepped outside of its constitutional bounds. In Roe v. Wade, the authors conclude that most of the fifty state legislatures might well have reached a similar solution in handling the political-football issue of where life legally begins. The constitutional problem was that the legislatures and not the Supreme Court should make that kind of decision. So they left out Roe v. Wade not because they consider it a good decision but because it did not, in their view, change the fact that first-trimester abortions were becoming increasingly acceptable to the majority in many states. (Not exactly what Palin might like to hear, but the authors are lawyers, and lawyers parse things differently than soccer moms do.)

One point that jumped out at me as I read this book was how often a bad Supreme Court decision is based not only on erroneous legal reasoning but on a misapprehension of the basic facts of the case. For example, in the Carolene Products case, the opinion of the Court wrongly regarded the defendant 19s product as bad for customers 19 health and that factual error influenced the Court 19s ruling against Carolene.

The authors are trying to reach the educated non-lawyer who is not necessarily familiar with the U.S. Constitution, so they include a copy of the Constitution, and each chapter begins with a relevant quote from that document, so that the reader will know what portion of the Constitution has been affected by the decision(s) about to be discussed. The Introduction also briefly outlines the cases and the issues they raise. This kind of redundancy should be welcome to the layman reader or the person who wants to refresh his or her memory, say, before an interview with Katie Couric. ( )