Heller?

Loving?

Bill Evers writes:

Pierce v. Society of Sisters because it defends family control of children against state control and defends private schools.

The Chinese Laundry Cases because they show that laissez-faire counters the racism of the regulatory-administrative welfare state.

From Ilya Somin:

I think the cases on the list should 1) uphold important principles, and 2) actually have had a substantial impact.

From that perspective, the peonage cases of the early 1910s surely rank high, as they enabled numerous southern blacks to escape a system of forced labor. Also important was Buchanan v. Warley (1917), which struck down racially based zoning, and helped prevent US state-imposed segregation from becoming as bad as that in South AFrica under the Group Areas Act. David Bernstein and I discuss both the peonage cases and Buchanan in some detail in this article:

http://ssrn.com/abstract=6207

I also agree with Brad's nomination of Schecter Poultry, which got rid of the National Recovery Act, the most sweeping effort at central planning in all of US history, which cartelized nearly the entire nonagricultural economy.

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law

From David Post:

How about the Pentagon Papers case, NY Times v. US, 403 US 713
(1971). The principle - that the freedom to publish trumps executive
power -- is profoundly liberty-enhancing - and Justice Black's
concurrence (his last public utterance) is astonishingly eloquent on the point.

Notre Dame's Rick Garnett says, "Pierce v. Society of Sisters."

What about Lochner? I would imagine it would be high on any libertarians list. Of course it's not good law but hey you didn't restrict your question.

I would nominate:

Marbury
Cohen (1971)
Loving
Schecter
Lopez
Weeks/Mapp
Gideon
Carter Coal
Texas v. Johnson
Heller

From Elizabeth Price Foley:
I'd include US v. Lopez, for its attempt (albeit perhaps ineffective) to reign in the Commerce Clause, and Lawrence v. Texas, for its implicit abandonment of the presumption of constitutionality for laws infringing unenumerated individual rights.

From Glen Whitman:
Griswold v. Connecticut, for recognizing a right to privacy (in the sense of a private sphere of action). Another win for the concept of unenumerated rights, though it would be nice if it had relied more on the 9th amendment and less on "penumbras" and "emanations."

John Hasnas writes:
Given my attitude toward Constitutional law, I probably should not be making a contribution to this discussion, but don't you want Marbury v. Madison on the list?

From Orin Kerr:
Next question: How many of the decisions that are best for liberty are plausibly correct on originalist grounds?

Ilya Shapiro offers:
I would think that to make this list, a particular case would have to come out the right way _for the right reason_. On those grounds, Griswold (other than Goldberg's concurrence) and Lawrence (not sure it stands for anything other than Kennedy's view of sexual privacy) don't count.

I nominate Zelman v. Simmons-Harris, Granholm v. Heald (a stretch perhaps but trying to think of cases limiting gov't power rather than upholding rights, which we've exhausted), and, of course, Lochner.

Todd Zywicki:
And I'm partial, but I'd put Granholm v. Heald on there or perhaps one of the other Dormant commerce Clause cases.

Aeon Skoble, re Ilya Shapiro:
I agree with you about Griswold, but not sure about Lawrence. But IANAL, so maybe I’m missing something.

Todd Zywicki:
It is a sad statement that it is a lot easier to come up with 10 bad ones than 10 good ones.

Ilya Somin:
I think there are very strong originalist arguments for all of them, with the possible exception of Lawrence.

From Ilya Somin:
For those interested, I have written a Volokh Conpsiracy post on this issue, discussing Buchanan, the peonage cases, and Schechter Poultry, and also elaborating on my selection criteria:

http://volokh.com/2009/10/06/the-ten-best-supreme-court-decisions/

Adam Massoff writes:
I'm not a con law scholar, but I've always had an affinity for the
Supreme Court's decision in Griswold v. Hepburn, 75 U.S. 603 (1869)
(which was later overruled in the Legal Tender Cases, 79 U.S. 457
(1870)).

In Griswold, the Court bit the pragmatic bullet in declaring
unconstitutional the legislation mandating that "green backs" be used
to pay all debts, even those incurred before this fiat currency was
adopted. As the Court reasoned, the text and spirit of the
Constitution must be the guide in answering this important question on
the constitutionality of this legislation, and its answer was a
definitive "no." It's a nice opinion that captures the full meaning
of having a Constitution that limits the government through the
doctrine of enumerated powers, even in the face of strong pragmatic
arguments to the contrary. In fact, in overruling Griswold the next
year, the Court's opinion in the Legal Tender Cases had to face up to
this issue directly and thus explicitly embraced an unlimited statist
standard of authorized federal power (foreshadowing the many cases
that would build on such ideas in the subsequent years).

Griswold also concludes with a nice acknowledge of the upheaval of the
recent unpleasantness and how this lead to federal aggrandizement, but
that in peace time and under cooler heads, the federal government must
recognize its constitutional limits:

"We are obliged to conclude that an act making mere promises to pay
dollars a legal tender in payment of debts previously contracted, is
not a means appropriate, plainly adapted, really calculated to carry
into effect any express power vested in Congress; that such an act is
inconsistent with the spirit of the Constitution; and that it is
prohibited by the Constitution.

"It is not surprising that amid the tumult of the late civil war, and
under the influence of apprehensions for the safety of the Republic
almost universal, different views, never before entertained by
American statesmen or jurists, were adopted by many. The time was not
favorable to considerate reflection upon the constitutional limits of
legislative or executive authority. If power was assumed from
patriotic motives, the assumption found ready justification in
patriotic hearts. Many who doubted yielded their doubts; many who did
not doubt were silent. Some who were strongly averse to making
government notes a legal tender felt themselves constrained to
acquiesce in the views of the advocates of the measure. Not a few who
then insisted upon its necessity, or acquiesced in that view, have,
since the return of peace, and under the influence of the calmer time,
reconsidered their conclusions, and now concur in those which we have
just announced. These conclusions seem to us to be fully sanctioned by
the letter and spirit of the Constitution."

Griswold, 75 U.S. at 625-26.

From Aeon Skoble:
Did someone already mention W. Va. v. Barnette?

Gary Lawson writes:
Good choice. It is particular nice because the author of the opinion was
appointed as part of a Court-packing plan specifically to UPHOLD the law and
changed his mind once he became a judge.

It also has the virtue of being correct on originalist grounds, which cannot
be said for a good percentage of the rest of the likely candidates.

David Bernstein:
Correct on originalist grounds (IMO)?

Definitely Yes: Schecter Poultry v. U.S.; Buchanan v. Warley; The peonage
cases United States v. Reynolds and Bailey v. Alabama; Yick Wo v. Hopkins

Probably yes:
District of Columbia v. Heller; Loving v. Virginia; Pierce v.
Society of Sisters

Don't know enough about it: New York Times v. Sullivan

Steven Horwitz:
I will second the nomination of Pierce v Society of Sisters

Bill Evers:
Ex parte Milligan. Ex parte Merryman

Geoff Manne:
Trinko. Scalia's opinion in Trinko is animated by at least two essential (and usually utterly neglected) principles of a free market: the importance of the pursuit of profits and the false positives problems of regulatory intervention:

"The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system. The opportunity to charge monopoly prices–at least for a short period–is what attracts “business acumen” in the first place; it induces risk taking that produces innovation and economic growth. To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct."

"Against the slight benefits of antitrust intervention here, we must weigh a realistic assessment of its costs. Under the best of circumstances, applying the requirements of §2 “can be difficult” because “the means of illicit exclusion, like the means of legitimate competition, are myriad.” United States v. Microsoft Corp., 253 F.3d 34, 58 (CADC 2001) (en banc) (per curiam). Mistaken inferences and the resulting false condemnations “are especially costly, because they chill the very conduct the antitrust laws are designed to protect.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 594 (1986). The cost of false positives counsels against an undue expansion of §2 liability.

Glen Whitman:
Are we taking as given that originalism is the one-and-only correct mode of interpretation? I know non-leftists who would dispute that. Tom W. Bell, for one. I'm ambivalent.

In any case, the initial question was which decisions were best for *liberty*. It seems like now we're adding an additional criterion -- unless the claim is that any non-originalist decision is ipso facto bad for liberty because it erodes respect for the constitution.

Mike Rappaport:
It is interesting that people on the list (1) pretty much agree on what decisions promote liberty, (2) but probably do not agree on what conforms to the original meaning. This is ironic, because part of the reason for originalism is that people do not agree on political principles, but can read the text. Of course, this is a list formed based on agreement on political principles, so it is not really so surprising.

One case that is both important to liberty and correct on originalist grounds is Youngstown (the Black opinion, not the Jackson concurrence).

David Mayer:
I’m surprised that no one (other than Ilya Shapiro) has mentioned Lochner v. New York, which I’d include in my Top Ten, along with Adkins v. Children’s Hospital (1923). Both of these decisions protecting liberty of contract valiantly attempted to enforce the Fourteenth Amendment’s limitations on the police power, in areas where the state had no valid justification for interfering with liberty of contract (maximum-hours laws and minimum-wage laws, respectively); they can be criticized only for the Court’s failure to go far enough in protecting liberty, with a coherent standard, and hence for permitting the Court to abandon the right, as it slid down the slippery slope of the “rational basis” standard in 1937.

Other cases I’d nominate:

Fletcher v. Peck (1810) (for the Marshall Court’s proper application of the Contract Clause)

Civil Rights Cases (1883) (for the Court’s proper recognition of the limited scope of Congress’s powers under section 5 of the Fourteenth Amendment)

Allgeyer v. Louisiana (1897) (for the Court’s recognition that liberty ought to be broadly protected under the Fourteenth Amendment’s due process clause)
Youngstown Sheet & Tube Co. v. Sawyer (1952) (for properly restraining Harry Truman’s attempted abuse of executive powers)

Engel v. Vitale (1962) (for Black’s opinion interpreting the First Amendment religion clause, incorporated through the Fourteenth, in light of Jefferson’s “wall of separation” metaphor)

Griswold v. Connecticut (1965) (but only Justice Goldberg’s concurring opinion, for recognizing that the Ninth Amendment isn’t just an inkblot)

I’d join others in including the Lopez and Lawrence decisions (and particularly Justice Thomas’s concurring opinion in Lopez), too.

One case (mentioned by John Hasnas) that I’d definitely NOT include is Marbury v. Madison. There’s nothing pro-liberty about that decision; it’s really all about the judicial power. It didn’t establish judiciasl review; that doctrine was well-recognized by the 1780s and utilized in several important state supreme court decisions. Marshall forced the exercise of judicial review under an erroneous interpretation of the 1789 Judiciary Act, creating a false conflict so the Court could declare a federal law (or portion thereof) unconstitutional without creating a direct confrontation with the Jefferson administration. I’d put Marbury rather on the list of top ten overrated Supreme Court decisions.

Todd Zywicki:
How about Dartmouth College v. Woodward for an important Contracts Clause case (yes, I'm partial to that one too).

There must be other good non-constitutional cases although so far Geoff Manne is the only one that has suggested one (Trinko).

Leegin may fit in the Trinko category, especially for the willingness of the Court to abandon a long-established by terrible precedent. If only they'd do the same thing with Parker v. Brown...

Tom Bell:
Thanks, Glen, for pointing out that not all friends of liberty regard originalism as the best theory of constitutional interpretation.

I prefer a different sort of textualism--one that aims to give the words of the Constitution their plain, present, and public meaning, and that interprets vagueness in favor of individual liberties. On that view, we should interpret the Constitution much as we would a standard form agreement for the provision of governing services offered on a take-it-or-leave-it-basis by one powerful and unnatural person to many individual and natural ones, ratified, if at all, by only very weak proofs of consent.

Given that American English has not changed a great deal in the last 200 years or so, such a consent-based interpretation largely gives the same results as an original meaning one. Why prefer it, then? Among several reasons, and most importantly, because it follows logically from a general theory about the justification of social institutions. For more details, please see "Graduated Consent Theory, Explained and Applied," at .

It seems to me, in contrast, that libertarians embrace originalism for the purely instrumentalist reason that it tends to generate pro-liberty results. (Conservatives seem to like originalism largely out of hagiography.) I like liberty as much as--indeed, probably more than--the next guy. But I think our theory of constitutional interpretation ought to have an intimate link with our theory of constitutional justification.

Dare I say Roe v. Wade?

John Hasnas defends his choice of Marbury v. Madison:
You may have whatever cases you want on your list, as long as Marbury v. Madison, which made all of them possible, is number 1. Imagine a government in which a handful of unelected judges can nullify the actions of the legislature and executive. There will not be a more liberty-enhancing decision than that.

Keith Whittington of Princeton, on Marbury:
I'd question whether Marbury made all of them possible. There's a pretty substantial revisionist on the relative unimportance of Marbury to the establishment of judicial review in the early republic, and I just finished a paper examining the extent to which Marbury only became the go to "source" for judicial review at the end of the nineteenth century.

John Hasnas:
Fair enough. I do not study Constitutional matters. If there is an earlier Supreme Court decision recognizing judicial review, put it on the list instead. However, even if Marbury v. Madison is not the "source" of judicial review, is it the first Supreme Court decision to officially recognize it? If so, then it belongs on the list. This is a list of the top ten liberty-enhancing Supreme Court decisions, correct?

Loren Lomansky:
OK, I'll wait for folks to remind me what a naive hick this non-lawyer is when it comes to abstruse matters of jurisprudence, but I'm stunned that in this discussion Brown v. Board of Education has been altogether invisible.

Yeah, the fact that the Civil Rights Cases were suggested before Brown v. Board goes pretty much directly against my idea of liberty. But then, I don't count myself a libertarian, so what do I know?

Also, what about something from the Goldberg v. Kelly/Mathews v. Eldridge line of cases? I understand that the expansion of the definition of property rights may not be too popular in some quarters, but surely the principle that the Government can't take something from you without some kind of hearing is a cornerstone of liberty.

Another controversial one that could be on the list: Brown v. Allen. Made it much harder (at least for a while) for a state government to throw someone in jail without giving them a fair trial. (Some say it made it too hard to throw someone in jail *with* a fair trial, as well, but that's a different argument, and hardly cuts against the liberty benefits.)

Korematsu v. United States, 323 US 214 (1944) (Murphy, J., dissenting);
Mapp v. Ohio, 367 US 643 (1961);
West Virginia State Board of Education v. Barnette, 319 US 624 (1943);
Texas v. Johnson, 491 US 397 (1989);
Marbury v. Madison, 5 US (1 Cranch) 137 (1803);
Griswold v. Connecticut, 381 US 479 (1965);
Eisenstadt v. Baird, 405 US 438 (1972);
Lawrence v. Texas, 539 US 558 (2003);
Miranda v. Arizona, 384 US 436 (1966);
Cooper v. Aaron, 358 US 1 (1958).

Jim Ely writes:
I certainly agree with Schechter, Buchanan, Pierce and Heller. As a property teacher, I am a bit surprised that more suggestions have not reflected the historic link between property rights and liberty. Let me mention Dartmouth College(which afforded some protection, even if later qualified, to fledgling corporations and thus strengthened the market economy), Chicago, Burlington, and Quincy Railroad v Chicago(holding that the just compensation norm was an essential element of due process under the Fourteenth Amendment and binding on the states), Pennsylvania Coal Co. v Mahon(affirming that some regulations may be so severe as to amount to a taking of property), and New State Ice v Liebmann(striking down entry barrier that conferred de facto monopoly to existing business).

It is a sad fact that there not many decisions protective of property rights since the New Deal era.

I also think that the steel seizure case should be included.

What about the much-abused Lochner decision? It was certainly a libertarian decision. It had only limited impact in upholding the liberty of contract, but remains at the center of debate over role of the judiciary in American life.

From Aeon Skoble:
My impression is that we all like Lochner, but aren't including it because it's largely ignored, and hence not _actually_ liberty-enhancing.

Rick Garnett:
I suggested, for what it's worth, Pierce v. Society of Sisters. Although the decision was, in later cases, mis-used in Roe, it strikes me that the "child is not the mere creature of the state" principle, affirmed in the decision, is an important one (and one that, particularly at the time, definitely needed vindication).

As a general matter, I think that, in order for a case to merit inclusion in our running "Hall of Fame", it has to not only result in the invalidation of a governmental constraint on "liberty", it has to also be justifiable, on the merits, with reference to the evaluator's theory of constitutional interpretation and legitimacy. (So, there are a lot of free-speech decisions that I "like" on libertarianish policy grounds, but that are, I fear, hard to justify on the merits.) There's "liberty"-value in democratic self-government, it seems to me, so it might be a mistake to think that a decision (e.g., Roe) deserves inclusion in the Hall of Fame just because it invalidates a duly enacted measure that, in some way, constrains those to whom it applies.

Someone -- I forget who -- suggested a Justice Black opinion constitutionalizing Jefferson's "wall of separation" line. I am afraid I cannot agree. Church-state "separation," properly understood, is a crucial component of religious freedom, to be sure, but Justice Black was grossly mistaken in terms of his understanding of the Establishment Clause's original meaning, and opinions like Everson and Engel (which reached the right result) did a lot to hamstring liberty (e.g., by holding up school-choice reforms).

From David Boaz of Cato Institute:
I'm not a lawyer, so I've stayed out of this. But a commenter at Volokh posted this list. And one thing I notice about it is that it has some very early decisions, whereas I think the nominations here have been tilted more recent decisions -- going back to Pierce, to be sure, and even further, but not as far as this list does:

Georgia v. Brailsford, 3 U.S. 1 (Dall.) (1794)
Calder v. Bull, 3 U.S. 386 (Dall.) (1798)
Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803) For the dictum.
United States v. Hudson, 7 Cranch 32 (1812)
Ex Parte Milligan, 71 U.S. 2 (4 Wall.) (1866)
Coffin v. U.S., 156 U.S. 432 (1895)
Lochner v. New York, 198 U.S. 45 (1905)
Murdock v. Pennsylvania, 319 U.S. 105 (1943)
U.S. v. Lovett, 328 U.S. 303 (1946)
Gideon v. Wainwright, 372 U.S. 335 (1963)
Hafer v. Melo, 502 U.S. 21 (1991)
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)
United States v. Lopez, 514 U.S. 549 (1995)