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Obviously Wrong Judicial Opinions

August 20th, 2013 Leave a comment Go to comments

Somebody put together a list of 7 or so judicial opinions he thought everybody would believe were dead wrong. All were old cases that offend modern pieties.

What would be much more interesting would be a set of cases which immediately led expert lawyers in the field to say, “That court has made a fool of itself again.” This wouldn’t have to be just Supreme COurt cases. Indeed, the SC looks a lot smarter than it would otherwise because when a Circuit Court makes a howler, everybody laughs and the SC is warned and can sagely avoid the mistake. A good recent example is where a unanimous Supreme Court confused the tests for permanent and preliminary injunctions, and then made a silly slip (typo? Phrase-o) and even said that no injunction could be granted without past harm having already occurred. See:

Mark P. Gergen, John M.
Golden & Henry E. Smith,
The Supreme Court’s Accidental Revolution? The Test for Permanent
Injunctions, 112 COLUMBIA L. REV. 202 (2012).

It’s in things like civil procedure, tax, and administrative law (and ERISA!) that we’d expect to see the SC make this kind of undeniable mistake, and usually in dictum. That’s why amicus briefs like the Sachs one in a Will Baude post a few posts more recent than this are the most useful.

Also we can look for it in con law cases where the court comes to a conclusion a lot of people like, but bungle the reasoning because they don’t really care about it. Roe v. Wade, maybe? I might be wrong, but I think there are a lot of people who think Blackmun got the right result, but with a poorly reasoned opinion.

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