Has the SCOTUS ever "grandfathered" otherwise unconstitutional practices?

That is, have they ever said “Yes, by the strictest interpretation of the law, this would be unconstitutional- but it’s been done that way forever and it would be too disruptive to change now”? I seem to vaguely recall some case where they ruled that (commercial) sailors who’d signed on for a voyage couldn’t jump ship and claim it would be slavery to force them back aboard. And BTW, was that interpretation ever revised, is it still in effect, or has it become a dead letter thanks to modern labor practices?

The “ceremonial deism” rulings seem to fit, at least from what I remember of various discussions about them.

But even then, it would be justified essentially as “but this is not quite really what that constitutional protection was meant by the Framers to address”. No Court will ever include in a ruling any statement to the effect that “this is [unconstitutional/contrary to Law] but we’ll look the other way for the sake of expediency”; they will find something, anything, anywhere in the corpus of Law and scholarship, upon which to justify/rationalize the decision

I agree with the other responses that no Supreme Court decision would ever state it was finding in favor of something that was unconstitutional. It would pretty much be an oxymoron.

But in a broader sense, there have been suggestions that in some cases, the Supreme Court has decided not to rule on an issue because it realized that it would be compelled to issue a ruling that would cause considerable disruption. So in essense, it’s choosing to ignore an issue rather than rule it unconstitutional. Many people have given the War Powers Act as an example of this.

There is the doctrine of “prospective overruling”, where the Court rules that a practice is unconstitutional, but that their ruling only applies to future cases. I don’t have any cites handy, but I think the first major case that applied it was a follow-up to Mapp v. Ohio, which applied the exclusionary rule to prosecutions under state laws. The result was that Mapp was essentially brought in from that day forward, but didn’t apply to past cases that were still in the court system. (But it’s been a while since I looked at this, so I may have the details wrong.)

The Supreme court found that the MLB anti-trust exemption that an earlier ruling gave MLB was in error. However they did not strip MLB of the exemption rather they left it up to congress to determine what to do. Thus far the exemption stands.


Brown v. Board of Education.

Yes, you heard me right.

In Brown, the court required the states to comply with the ruling “with all deliberate speed.” In other words, not immediately. They essentially allowed a practice they had explicitly found unconstitutional to continue for some unspecified, presumably short period of time.

The retroactivity rule was clarified in Teague v. Lane, 489 U.S. 288 (1989).

I think the recent affirmative action ruling is close to this.

As a few people noted, they don’t explicitly put it in those terms, but instead spin some rationale for ruling on the side of expediency.

IMO, the example that best fits the OP is the 1918 Select Draft Law Cases – there, they pretty much did throw up their hands and sputter that that’s how the government has traditionally done things and we aren’t going to rock the boat:

How so?

One note worth making is that many justices, and in particular those who abide by “judicial self-restraint,” will always try to find the narrowest possible ground for ruling on a case, if indeed SCOTUS agrees to take a case. Remember that their basic job is not to decide if laws are unconstitutional per se, but to serve as the court of last resort which settles the law of the country to one national standard.

So it is quite possible that there may be an issue which, if privately questioned about, a majority of the justices might consider that the existing law is unconstitutional, but with regard to cases involving which they will: (a) decline to grant certiorari about, (b) dismiss as improvidently granted, or © rule on the strictest, narrowest grounds, such as the appellant’s lack of standing, or reversible error in the proceedings at a lower court level, instead of, so to speak, rearing back and declaring a law unconstitutional.

A majority of the incumbent justices, for example, might consider bans on gay marriages to be a violation of the Equal Protection Clause of the 14th Amendment. (Note that I am not raising that for argument in this thread, merely suggesting it as something which some SCOTUS justices might plausibly believe to be the case.) But, being aware of the firestorm that would break out if they were actually to rule that way, they will avoid hearing such a case, or if they do hear one, deal with it under narrower grounds. A parallel to the latter is the first California gay marriage decision, which merely held that the Mayor of San Francisco did not have the legal power to order licenses issued as he had done. That did not “find gay marriages illegal”; it merely said that in that particular case, the Mayor had acted in a manner he could not legally act. (The more recent case, of course, addressed the issue head-on, but the first case is instructive in how a court may sidestep a hot-button question if it so chooses.)

I assume you mean the argument, from Justice O’Conner, that AA probably would not be needed 25 years from now*. If so, I don’t think that qualifies. She clearly did not imply that she thought AA was unconstitutional now, only that the arguments about its constitutionality might become invalid at a later point in time. Frankly, I find that reasoning disturbing, but that’s a different matter.

*Can’t remember if 25 years was what she said, but it was something like that, give or take 5 years.

Okay, I accept that. Please enlighten me with specifics?

Like the Pledge case from last year. Wasn’t it dismissed because they said the father not being the custodial parent, had no standing?

Right, Newdow wasn’t deemed to have “enough” custody to proceed and SCOTUS didn’t rule on the Pledge’s constitutionality.

Teague was only a plurality, IIRC, although it’s widely accepted and the Court may have adopted it by now. Or maybe it was a concurring opinion. ??


Are you talking Marsh V Chambers of 1983?
Court Decision