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The chief challenge presented by an opportunity to comment on the "Worst Supreme Court Opinion, Ever," is that so many candidates vie for the title. Fortunately, Professor Stempel has stipulated that the identification of a champion in no way implies acquiescence in any unnamed judicial wrongs. No sane scholar could accept the invitation on any other terms.

No doubt my choice of the Court's Prohibition-Era ruling in Nigro v. United States is a surprising one. Most scholars and lawyers have probably never even heard of the decision nor of the 1914 federal narcotics law that it unconscionably upheld. Nigro's obscurity might be thought to foreclose its claim to incomparable iniquity. In fact, however, Nigro's anonymity is both consequence and evidence of the thoroughness of its distortion of our fundamental law. The effect of its error proved so profoundly transformative that the world it helped to destroy has been virtually forgotten. Nigro accomplished the astounding feat of covering its own tracks.

But Nigro deserves a prominent place in our pantheon of infamy, and this Essay aims to put it there. For Nigro not only contributed mightily to the demise of the enumerated powers doctrine, arguably the central feature of the Constitution of 1787, but, as my title asserts, was almost certainly the product of self-conscious duplicity on the part of at least some of the Justices in the majority. The only alternative to this latter conclusion is to attribute to them a failure in self-criticism so grave as to be as culpable as outright dishonesty. The case for (against?) Nigro can be made at many levels.

This Essay makes that case. Part I provides the background and historical context necessary to appreciate fully the extent of Nigro's wickedness. Part II then examines the Supreme Court's ruling. Part III explores the consequences of that neglect of judicial duty. Part IV explains, and laments, Nigro's present relevance.


This article was published in 12 Nev. L.J. 650 (2012).