Anti-Canonical Considerations

Abstract

One of the most common adages is, “Learn from your mistakes.” Another is, “Everyone makes mistakes.” The trouble-plagued Iowa State football player Jason Berryman put these together with the self-descriptive line, “You can’t learn from your mistakes if you run away from them.” The American champion of self-improvement Dale Carnegie proclaimed, “The successful man will profit from his mistakes and try again in a different way.” Yet another common adage states, “They are only mistakes if you don’t learn from them.”

These timeless, if hackneyed, sentiments capture the purpose of this issue of the Pepperdine Law Review, which contains the published versions of papers delivered at the Law Review’s Supreme Mistakes symposium, held on April Fool’s Day, 2011, at Pepperdine University School of Law in Malibu, California. It is our contention that the United States Supreme Court is no different from the rest of us when it comes to mistakes—it too makes them. Yet when this supremely powerful institution makes mistakes, they can have enormous consequences, as the articles contained in this issue show. If the Court is to learn from these mistakes and if American law is to profit from them then, as Berryman suggests, we should not run away from them. We need to understand them so that the Court is less likely to make them again. That is the purpose of this symposium issue. 

To organize a symposium centered on this theme, members of the Law Review, particularly Janelle M. White and Blake McKay Edwards, worked with members of the faculty and dean’s office to induce some of the nation’s top constitutional law scholars and historians to Malibu to discuss five of the most maligned Supreme Court decisions of all time. From the outset, the concept was to have leading constitutional law experts each pick one case that could qualify as the Supreme Court’s worst or most notorious decision of all time. Together, these so-called “Supreme Mistakes” would represent the symposium’s anti-canon of American constitutional law. Given the limits of the symposium, we could invite only five outside speakers and five respondents. Most of the respondents were drawn from the Pepperdine faculty. The five outside speakers chose the cases; the respondents were limited by the choices of these outside speakers. In addition, we invited one of the nation’s leading constitutional-law historians, G. Edward White, to provide his perspective on the overall issue. From the way this symposium issue of the Review was conceived, its success rests largely on those speakers. 

These speakers then revised their comments for publication in this issue of the Law Review. The result is five main articles on single decisions, five short response articles, and one broad historical article. In these articles, we seek to learn from the Supreme Court’s past mistakes about the limits of judicial power in the federal system and seek guidance about how the Court can anticipate and perhaps avert similar mistakes in the future. Working with the student editors of each piece, let me introduce the five cases and the articles about them.