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Members of the public line up in front of the U.S. Supreme Court building while waiting to hear oral arguments on the first day of the court's new term October 6, 2008 in Washington, DC.

Roe vs. Wade? Bush vs. Gore? What are the worst Supreme Court decisions?

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Members of the public line up in front of the U.S. Supreme Court building while waiting to hear oral arguments on the first day of the court's new term October 6, 2008 in Washington, DC.
Sarah Palin may have been stumped by the question, but conservative and liberal legal experts weren't.
By David G. Savage
11:15 AM PDT, October 22, 2008
Reported from Washington -- Gov. Sarah Palin appeared to draw a blank recently when asked by CBS' Katie Couric to name a Supreme Court decision she disagreed with other than Roe vs. Wade.

Recalling high school history, she might have cited widely condemned 19th century decisions such as Dred Scott (1857), which upheld slavery even in the "free states," and Plessy vs. Ferguson (1896), which upheld segregation as "separate but equal."

Or relying on personal experience, she might have repeated her criticism of the court's ruling in June that reduced by $2 billion the punitive damages to be paid to Alaskans by Exxon Mobil for the Exxon Valdez oil spill. She was quoted then as saying she was "extremely disappointed" the court had "gutted the jury's decision on punitive damages."

But Palin, who is not a lawyer, is surely not alone in being unable to name high court decisions she disagrees with. What are the worst Supreme Court decisions since World War II?

When asked in the last week, professors of constitutional law and other court experts offered a wide array of rulings. However, conservatives and liberals agree -- at least among themselves -- on the worst decision.

For conservatives, Roe vs. Wade (1973) stands alone. The court, in a 7-2 decision, cited an unwritten "privacy" right in the Constitution as the basis for voiding the abortion laws then on the books in 46 of the 50 states.

John Eastman, dean of the Chapman University School of Law in Orange, said Roe combined "outcome-driven reasoning and bad history with a lack of judicial authority to enter an inherently political question that had previously been left to the states."

Bush vs. Gore (2000) has the same standing among liberals. The court's conservative bloc, in a 5-4 decision, halted the recount of punch-card ballots in Florida on the theory that it could violate then-Gov. George W. Bush's right to the "equal protection of the laws." Until then, the court's conservatives had been most skeptical of "equal protection" claims, unless racial distinctions were at issue.

UC Berkeley law professor Goodwin Liu described the decision as "utterly lacking in any legal principle" and added that the court was "remarkably unashamed to say so explicitly." Its opinion noted that the ruling was "limited to the present circumstances."

Among conservative law scholars, other rulings earned several mentions as the "worst" of recent times:

Boumediene vs. Bush (2008) This 5-4 ruling handed down in June held that the right to "habeas corpus" extends to the foreign military prisoners at Guantanamo Bay. This means they can go to court to challenge their detention.

Kelo vs. City of New London (2005) This 5-4 decision upheld a city's power to pay for and take possession of an unwilling homeowner's property to make way for private development. The Constitution says private property shall not be seized except for "public use," and the majority said encouraging economic development could be a public use of the land.

Everson vs. Board of Education (1947) This 9-0 decision adopted Thomas Jefferson's view that the 1st Amendment erects "a wall of separation between church and state," and it led to later rulings that barred public school-sponsored prayers and Bible readings.

Miranda vs. Arizona (1966) This 5-4 ruling symbolized the Warren court's effort to protect the rights of criminal defendants, and it required the police to warn suspects of their rights before questioning them.

Among liberal scholars, the decisions cited as the worst were the following:

Parents Involved in Community Schools vs. Seattle (2007) This 5-4 ruling rejected school-integration policies that rely on racial guidelines to maintain a balance between white and black students. The majority said the integration guidelines violate the "equal protection of the laws" because of their use of race.

Bowers vs. Hardwick (1986) This 5-4 ruling upheld laws that were used to prosecute gay men for having sex at home and rejected the claim that the right to privacy protected them as well. This decision was overruled in 2003 in Lawrence vs. Texas.

McCleskey vs. Kemp (1987) This 5-4 ruling rejected a challenge to Georgia's use of the death penalty that relied on statistics showing evidence of racial bias. The majority rejected the claim that this disparity violated the principle of "equal protection of the laws."

San Antonio School District vs. Rodriquez (1973) This largely forgotten 5-4 ruling held that education was not a fundamental right under the U.S. Constitution, and it rejected the claim that funding differences between rich and poor school districts violated the "equal protection of the laws."

Two decisions made the "worst" list for both conservatives and liberals.

Gonzales vs. Raich (2005) This 6-3 ruling upheld the power of federal agents to seize home-grown marijuana from Californians who used it as medicine to relieve pain. The majority did not endorse this policy, but said the federal government can regulate dangerous products, even if they are not bought or sold.

Buckley vs. Valeo (1976) This unanimous ruling scrambled the law on money and politics. On the one hand, it upheld legal limits on contributions to candidates and their campaigns. However, it also said candidates can spend as much as they wish on their campaigns. Several justices -- conservative and liberal -- say it should be overruled, but for different reasons.

Palin also had a few cases to cite when asked the same question in a later interview on Fox News. She cited the Kelo decision as a threat to property rights, the ruling cutting the damages in the Exxon Valdez case and the ruling in Kennedy vs. Louisiana in late June, which struck down the death penalty for the crime of child rape.

The respondents to the survey of "worst" Supreme Court rulings include law professors Jack Balkin, Yale; Mary L. Dudziak, USC; Jonathan Varat, UCLA; Richard Epstein, University of Chicago; Erwin Chemerinsky, UC Irvine; Goodwin Liu, UC Berkeley; Pamela Karlan, Stanford; Michael C. Dorf, Cornell; Steven Calabresi, Northwestern; Douglas Kmiec, Pepperdine; John C. Eastman, Chapman; Marci Hamilton, Cardozo Law School; M. Edward Whelan, Ethics and Public Policy Center; and Robert A. Levey, Cato Institute and the co-author with William Mellor of "The Dirty Dozen," a book on 12 Supreme Court decisions that "radically expanded government."

Savage is a Times staff writer

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