The five dumbest Supreme Court decisions.

• Author: Franklin, Daniel
• Position: Past cases

Nathan Goodman's truck was only eleven-and-a-half feet from the railroad tracks when he first saw the oncoming train. An overhanging tool shed had obstructed the view of the railroad tracks and although he slammed on his brakes, there was nothing he could do to prevent crashing into the train. Luckily, he was only injured.

It was 1927, and America was just beginning to realize, perhaps not as profoundly as Goodman, that the country was not designed for the automobile driver. Goodman sued the Baltimore & Ohio Railroad Company and won, but the railroad appealed the decision to the Supreme Court. Justice Oliver Wendell Holmes, writing for a unanimous Court, stated that to prevent circumstances when "the accidental feelings of the jury" could decide personal injury claims, the Court needed to establish a steadfast rule by which the lower courts could decide liability.

Neither the railroad company nor the train's engineer has any responsibility to warn oncoming drivers, Holmes wrote. Rather, the burden of safety depends entirely on the driver. After all, "he knows that he must stop for the train, not the train stop for him." Therefore, Holmes concluded, any driver approaching railroad tracks must stop his car, get out, and walk up and down the tracks to make certain no train is coming before he can go on his way.

It isn't often that it can be said that a unanimous Supreme Court got something 100 percent wrong, especially when the driving force behind the error was one of the greatest legal minds in this country's history. How could Holmes have been so backward and blind? It probably had something to do with the fact that the good Justice had never sat behind the wheel of a car. The plight of Goodman, a professional truck driver, could not have been more alien to him.

Holmes' decision was overturned seven years later. Nonetheless, it provides a textbook example of how smart justices can come up with dizzyingly dumb decisions. Take Bradwell v. Illinois, in 1873, when the Court ruled that the State of Illinois could bar women from becoming lawyers because, they reasoned, God made women inherently inferior; or Dennis v. U.S., in 1950, in which Smith Act prosecutions of Communist party leaders were justified on the basis that the mere advocacy of Communist doctrine was a crime. And then, of course, there are the truly infamous: Dred Scott, which in the process of returning a freed slave to his owner the Court affirmed that slaves were in fact property; and Plessy v. Ferguson, which in 1896 affirmed segregation and facilitated Jim Crow's hold on the South for another two generations.

Even though these decisions have been overturned, the Court over the past 30 years has come up with some decisions worthy of their, to be kind, less-than-perfect predecessors. Here are a few inane decisions that are the law of the land and shape--for the worse--the way we live today.

Bowers v. Hardwick, 1986

Until the last minute, Justice Lewis Powell wasn't sure on which side he would vote. The case before the Court would decide whether Georgia's statute outlawing sodomy between consenting adults was unconstitutional. As the justices debated the case in conference, their opinions began to polarize and harden: Justices Burger, White, Rehnquist, and O'Connor found for Georgia, while Justices Marshall, Blackmun, Stevens, and Brennan voted to strike down the law. The vote was four to four. Powell, attempting to reconcile his respect for the right to privacy with an instinctive disgust with homosexuality, sat divided in his own mind.

Bowers v. Hardwick had begun rather innocently in the summer of 1982, when Michael Hardwick was cited for carrying an open beer bottle in public. Hardwick paid the fine, but it had not been processed before a police officer was sent to Hardwick's Atlanta home one morning to serve him a warrant. A friend of Hardwick's who had spent the night in the house let the officer in and pointed him in the direction of Hardwick's bedroom. When the officer opened the door, he saw Hardwick engaged in oral sex with another man. The officer arrested both men on the charge of sodomy, a prohibition not enforced since 1935, and brought them to the police station.

Hardwick's attorney argued that the case presented a right to privacy issue: that the choice of whom to have sex with was something beyond the state's jurisdiction. Georgia Attorney General Michael Bowers (he still holds the position) countered by arguing that the right to privacy is not guaranteed in the Constitution and that the Supreme Court would be inventing a right (as many argued it did in Roe v. Wade) by asserting that there was a constitutional right to homosexual sex.

Powell, who tried desperately to find some middle ground, first voted against the Georgia law, but eventually added his name to the majority opinion written by Byron White.

White's opinion is a paradigm of bluster and bigotry. It argued that homosexuality was a historical taboo, and its inherent immorality made it vulnerable to the state's prohibition. Burger's concurring opinion was even more strident: Antisodomy laws have "ancient roots," he...