5 Most Unlibertarian Supreme Court Rulings Still Standing

Individual mandate doesn't even make the list!

James Madison envisioned the judicial branch of our government as "an impenetrable bulwark against every assumption of power in the legislative or executive." In reality, the U.S. Supreme Court has been more like a rubber stamp, allowing all manner of harebrained government schemes to survive despite their blatant conflict with the text of the Constitution.

Yesterday's dismal ruling in National Federation of Independent Business v. Sebelius was no exception. Not only did the Supreme Court vote to uphold ObamaCare's requirement forcing all Americans to buy health insurance, Chief Justice John Roberts even cooked up an insidious new way for Congress to run our lives via its vast powers to "lay and collect taxes." Where's Harriet Miers when you need her?

But don't worry, it gets worse. Here are the top 5 most unlibertarian Supreme Court rulings from the last 40 years that are still standing (and the individual mandate didn't even make the list!).

5. Miller v. California (1973)

A landmark First Amendment ruling and an official permission slip for moralists and censors ever since, this 1973 case reaffirmed the government's right to prohibit speech deemed to be obscene by replacing an existing vague and murky legal definition of obscenity with an all new vague and murky definition. The case involved Marvin Miller, a California man convicted in a lower court on obscenity charges for sending unsolicited sexually explicit pamphlets through the mail. When the Supreme Court reviewed the case, they agreed with the conviction, declaring that "obscene material is not protected by the First Amendment," but noting the difficulties in determining what exactly should count as obscene. The Court drew up new obscenity guidelines which instructed authorities to consider:

whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest

whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.

Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Problem solved? Hardly. The Miller test remains impossibly vague, and leaves it up to the arbitrary whims of judicial authorities to determine what sort of speech can be prosecuted under the law for being outrageous or offensive. A better reading of the First Amendment would make clear that the right answer is: none.

Next: Cops, prostitutes, cars.

4. Bennis v. Michigan (1996)

In September 1988 a Michigan couple named John and Tina Bennis bought a 1977 Pontiac automobile for the price of $600, which they split between them. Three weeks later, on the night of October 3, John was arrested by Detroit police after picking up a prostitute in the car and later charged and convicted of gross indecency. Sensing an opportunity, the county prosecutor turned to a Michigan statute allowing for the seizure of property used for the purposes of "lewdness, assignation or prostitution" and brought an asset forfeiture action targeting the car.

Because Tina Bennis was a part owner of the car and had been convicted of no crime, she innocently assumed her right to life, liberty, and property under the Due Process Clause of the 14th Amendment would prevent the government from robbing her of her ride. The U.S. Supreme Court saw things differently. "An owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use," wrote Chief Justice William Rehnquist. By rejecting Bennis' "innocent owner" defense, the Supreme Court kicked the door open to even greater asset forfeiture abuse.

Next: The Fourth Amendment Under Fire.

3. Muehler v. Mena (2005)

Supreme Court rulings that have chipped away at the Fourth Amendment are a dime a dozen. From 1983's Illinois v. Gates, which drastically reduced the requirements for police to obtain a warrant based on an anonymous tip, to 2002's Board of Education v. Earls, which paved the way for public schools to require students to undergo drug tests before participating in intramural activities, Americans' civil liberties have taken a real beating from the high court in recent years.

But a more recent case has even broader implications for the Fourth Amendment. In 1998 Iris Mena was handcuffed and kept in her garage for three hours while an 18-member SWAT team searched her home for a suspected gang member. Mena sued, saying that there was no need for officers to keep her in handcuffs once they had determined that she not a threat. She also claimed in her suit that the officers could have avoided destroying her property if they had permitted her to unlock door and cabinets. Additionally, the officers questioned Mena about her immigration status, despite the fact that she was not the target of the raid.

In 2005, the Supreme Court ruled 9-0* in Muehler v. Mena that the need for law enforcement officers to "take command of the situation" during a lawful raid on a residence or business outweighed Mena's concerns about being detained for an overly long time, or the destruction of her property. The majority also held that Mena being questioned about her immigration status was not a violation of her Fourth Amendment rights.

The dissenting justices held that keeping Mena, who stands 5-feet-2-inches tall, in handcuffs for three hours was excessive and that she should have been released immediately upon determining whether she was a threat to the officers.

In 2012, the Obama administration cited Muehler v. Mena in a brief to the U.S. Court of Appeals for the 9th Circuit in its defense of several DEA agents who roughly handcuffed two young girls—ages 11 and 14—during a wrong-door raid.

Correction: A previous version of this article incorrectly stated that the Supreme Court ruled 5-4 against Mena in Muehler v. Mena. The ruling was 9-0 against Mena, with four justices concurring. We regret the error. 

Next: Smoked out.

2. Gonzales v. Raich (2005)

According to Article 1, Section 8 of the Constitution, Congress possesses the power "to regulate commerce…among the several states." Yet in the Supreme Court's 1942 ruling in Wickard v. Filburn, the Supreme Court found the Commerce Clause pliable enough to forbid an Ohio farmer from growing and consuming a specific amount of wheat on his own farm.

Then the Court arguably made things even worse with its 2005 decision in Gonzales v. Raich, where it held that medical marijuana cultivated and consumed entirely within the state of California somehow still counted as interstate commerce and was therefore subject to the federal Controlled Substances Act. As Justice Clarence Thomas remarked in his dissent, "By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power."

You can also thank Raich for those federal raids on local medicial marijuana clinics that President Barack Obama once pretended he was going to stop.

Next: There goes the neighborhood.

1. Kelo v. City of New London (2005)

Are there any limits on government's authority to take property from citizens? The U.S. Constitution's Fifth Amendment seems to put pretty clear limits on the taking of "private property for public use" (with public use defined as projects such as railways and roads) and requires that owners deprived of their property must receive just compensation. That standard held up into the twentieth century, when a stream of court decisions began defining "public" downward and "blight" (one criterion for condemning private property) downward.

The 2005 Kelo decision completed that dreary progress. Justice John Paul Stevens ruled for the majority that a redevelopment agency in New London, Connecticut could seize homes of local families and give them to a private developer working with the Pfizer Corporation for a mixed-use plan dating to the 1990s. In a stinging dissent, Justice Sandra Day O'Connor noted that the Kelo decision overturned a judicial principal dating to 1798: A "law that takes property from A and gives it to B" cannot stand.

Stevens' decision still seems shockingly credulous and ill-considered seven years on. Kelo rejects any requirement that condemned property be put into public use, gives unlimited "deference" to politicians' economic judgments, and assumes the plan's "comprehensive character" and the "wisdom of the means the city has selected" would ensure against damaging private citizens for no public purpose.

In the end, though, Pfizer abandoned the project and the Fort Trumbull neighborhood, cleared of its houses, literally became a garbage dump. New London was made poorer, and although some states responded to the ruling with piecemeal efforts to rein in eminent domain abuse, Kelo's most important precedent has been to enshrine the unrepentant Stevens' legacy as an economic dullard and second-rate legal thinker.