Doing the Wrong Thing for the Right Reason
posted by Gerard Magliocca
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?