We decided to ask self-identified conservative and libertarian legal scholars to send us their own lists of what they considered to be the Court’s worst opinions. We then compiled a list of the twenty cases mentioned the most often and sent it back to scholars, asking them to rank the worst opinion, the second worst, etc. We gave every first-place vote ten points, every second-place vote nine points, and so forth. In all, we surveyed more than 100 leading conservative and libertarian legal scholars and received about fifty responses. There were some disagreements among the respondents, but there was strikingly widespread agreement about the very worst opinions.

Overall, our Dishonor Roll of opinions fell into four broad conceptual groups, the first of which included decisions that denied the full humanity of others. A second group represented the abuse of judicial power through the creation of nonexistent constitutional rights. Opinions in the third group failed to recognize or enforce limits on government power that actually are in the Constitution. And a final group consisted of opinions fundamentally misunderstanding the relationship of church and state and the contours of religious freedom. There is some overlap of opinions that could fit into more than one of these groups. Arguably all, or nearly all, could be said to fall into either the second or third—imposing what is not in the Constitution or failing to enforce what is. But we invited participants in the survey to comment, if they wished, on why they thought these were judicial blunders, and our groupings represent the reasons they gave.

Leading the first group was the worst disaster in the Court’s history: Dred Scott v. Sandford (1857).

[It’s an interesting list, to be sure. The usual suspects are on here, including Roe, Obergefell, Lawrence, and especially Wickard, but I was surprised to see how high Griswold ranked on the list — and how far down Kelo ranked, while still making the top twenty. I think Kelo deserves a higher rank, but I’m probably not expert enough to know which higher-ranked cases should be moved downward — although I think Griswold might be one to think about. — Ed]