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"The Dirty Dozen"

In the mail: Robert Levy of Cato and William Mellor of the Institute for Justice are out in May with a new book whose subtitle is "How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom". A highlight is a foreword by Richard Epstein (which, with characteristic Epstein independence, takes issue here and there with the authors' selection of worst-ever cases). Not listed among the twelve is my own sentimental favorite, 1968's Jones v. Mayer, which took creative statutory interpretation to a new level by holding that Congress had long before, in the 1866 civil rights act, in fact passed a broad-ranging ban on private racial discrimination, this revolutionary step having gone essentially unnoticed in the intervening century. (I discuss Jones in The Excuse Factory, as does Prof. Gerhard Casper in this fee-access 1968 law review article). Levy and Mellor's hit list, however, does include such notable milestones of badness as Home Building & Loan Association v. Blaisdell (1936), in which the New Deal Court decided that when the Constitution's Article I, Section 10, declares "No State shall ... pass any ... Law impairing the Obligation of Contracts", it meant approximately the reverse of what it said.

Correction 2/14: Gregory Koster points out that "New Deal" above is inaccurate since FDR did not get his first appointment until Hugo Black came on board in the 1937 term; Blaisdell was a "Nine Old Men" decision.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.