The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

• Author: Ely, Jr., James W.
• Position: Book review

* The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom

By Robert A. Levy and William Mellor

New York: Sentinel/Penguin, 2008.

Pp. xviii, 302. $25.95 cloth.

From the world of sports to the political arena, Americans have long been addicted to rankings. For example, a vast literature seeks to identify successful presidents and "great" Supreme Court justices (see Alvin Felzenberg, The Leaders We Deserved and a Few We Didn't: Rethinking the Presidential Rating Game [New York: Basic Books, 2008].) Similarly, scholars have prepared lists of notable Supreme Court decisions, but such efforts at rating these decisions are fraught with hazard. What criteria should be employed in making such determination? To what extent do the political predilections of those who evaluate public figures or judicial decisions influence their rankings? Does a presentist bias skew ratings in a way that gives greater weight to more recent decisions and jurists?

Robert A. Levy and William Mellor have authored a stimulating book that takes a markedly different tack in the rankings game. Rather than focus on supposedly "great" rulings, they select and critique the Supreme Court's twelve most harmful decisions since the New Deal era. Their baseline for picking the cases is a libertarian commitment to the principles of limited government and personal freedom. Like those who seek to craft a list of "great" judges or decisions, Levy and Mellor conducted a poll of scholars to ascertain the "worst" Supreme Court rulings. However, the authors did not feel bound by the survey results and ultimately used their own judgment in compiling the final list. As a bonus, the volume contains a foreword in which Richard A. Epstein discusses and sometimes challenges the authors' selections.

Levy and Mellor arrange the twelve decisions into two categories: those that enlarged government's reach and those that undermined individual liberty. Then for each case they provide a discussion of the facts, an analysis of the constitutional issues involved, and an explanation of the decision's impact. Each of these rulings is already the subject of extensive scholarly comment and criticism, but this volume is a pioneering effort to present them as a pattern of Supreme Court behavior.

Not surprisingly, the authors trace the demise of a limited national government to the New Deal era of the late 1930s. Drawing on the Progressive legacy, New Dealers sought to...