Doing the Wrong Thing for the Right Reason

Lately I’ve been thinking about constitutional cases where the Supreme Court did something terrible but said something wonderful.  The first example that comes to mind is Korematsu.  The holding in that case upholding the mass detention of American citizens who were of Japanese descent is considered an embarrassment, but the opinion’s statement that all racial classifications must be subject to “the strictest scrutiny” is now central to equal protection law.

How many other decisions are there that are like this?  Another possibility in Gobitis, which upheld the mandatory flag salute for schoolchildren who objected on religious grounds but also (as I explained in a prior post) invoked the Bill of Rights in a way that broke new ground.  Other nominees?

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10 Responses

  1. Orin Kerr says:

    Doesn’t it depend on what cases you think are terrible? I would think that most controversial cases have at least some redeeming qualities, even if only at the level of pleasing rhetoric.

  2. Gerard Magliocca says:

    True. I submit that Korematsu was terrible. Do you disagree?

  3. Orin Kerr says:

    No, but you were asking for other decisions. My point was just that the universe of terrible cases that say wonderful things is probably similar to the described universe of terrible cases. Most controversial cases have at least one or two passages that say something that touches on some other aspect of the law that evokes positive associations.

  4. Gerard Magliocca says:

    Well, I don’t mean do these cases have charming prose. I mean did they say something doctrinally important. To refine the idea further, perhaps we could say that what cases said something that led to significant doctrine that was directly contrary to the holding of said case.

  5. Mls says:

    NFIB v. Sebellius?

  6. TJ says:

    While not purporting to say that it is a terrible case, doesn’t Marbury v. Madison fit your reformulated question? It recognized the political question doctrine, then proceeded to decide that Marbury was entitled to his commission notwithstanding said doctrine, and then proceeded to give him no remedy by saying the court had no jurisdiction.

  7. Howard Wasserman says:

    Some of the early First Amendment cases affirmed the conviction but couched it in the “clear-and-present danger” language that eventually would become a speech-protective standard. I’m thinking specifically of Schenck v. U.S., which Holmes wrote for a unanimous Court.

  8. Michael Teter says:

    Everson v. Board of Education

  9. Joe says:

    Dred Scott v. Sandford assumed the BOR was applicable to federal territories. At least, if you were white.

  10. Terri E says:

    Yasui v. United States is another case dealing with this issue. After reviwing the case and connecting to what we are studying in class, it seems as if they are using the Consquencelist ( in which one weigh out possible conequences as a result of certain actions), in which the supreme court was considering the possible negative outcomes of not convicting Yasui, and how it would effect America during the War. Considering that the racial profiling of Japanses citizens of the United States was taking place during world war 11 after the attack on Pearl Habor by the Japanese, the court had to make a decision that was indeed not consider to be constitutional in Present court cases, which indeed to force all Japanses citizens on crewfews and to relocate, inflam the Anti-Japanese sentiment is simplee terrible. But in Yasui case, he was working for the Japanese consulate, there was no way to know that he didn’t take part in the bombing on pearl habor. If the supreme court didn’t convict Yasui than the outcome of giving him equal protection rights and ruling in his favor, than America could possible have faced more attacks.