# Has the SCOTUS ever "grandfathered" otherwise unconstitutional practices? **URL:** \ **Category:** Great Debates\ **Created:** [April 10, 2005, 12:32am UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605 "2005-04-10T00:32:25Z")\ **Posts on this page:** 18\ **Page:** 1
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [April 10, 2005, 12:32am UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/1 "2005-04-10T00:32:25Z")
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? ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [April 10, 2005, 12:57am UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/2 "2005-04-10T00:57:13Z")
The “ceremonial deism” rulings seem to fit, at least from what I remember of various discussions about them. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [April 10, 2005, 1:10am UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/3 "2005-04-10T01:10:33Z")
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 ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 10, 2005, 3:30am UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/4 "2005-04-10T03:30:06Z")
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. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 10, 2005, 6:36am UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/5 "2005-04-10T06:36:49Z")
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.) ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [April 10, 2005, 6:41am UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/6 "2005-04-10T06:41:09Z")
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. [http://espn.go.com/mlb/s/2001/1205/1290707.html](http://espn.go.com/mlb/s/2001/1205/1290707.html) ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [April 10, 2005, 4:12pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/7 "2005-04-10T16:12:01Z")
_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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 10, 2005, 6:27pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/8 "2005-04-10T18:27:05Z")
> [@Northern Piper](#): > > 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 retroactivity rule was clarified in _Teague v. Lane_, 489 U.S. 288 (1989). ---
**Author:** ![Hammer](https://avatars.discourse-cdn.com/v4/letter/h/bc79bd/32.png) [@Hammer](https://boards.straightdope.com/u/Hammer)\ **Post date:** [April 12, 2005, 4:00pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/9 "2005-04-12T16:00:14Z")
I think the recent affirmative action ruling is close to this. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [April 12, 2005, 4:24pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/10 "2005-04-12T16:24:04Z")
> [@Lumpy](#): > > 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”? 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: > [@](#): > > The Court’s analysis, in full, of the Thirteenth Amendment issue raised by a compulsory military draft was the following: ‘‘As we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.’’ ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [April 13, 2005, 5:56pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/11 "2005-04-13T17:56:59Z")
> [@Hammer](#): > > I think the recent affirmative action ruling is close to this. How so? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 13, 2005, 6:09pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/12 "2005-04-13T18:09:23Z")
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.) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 13, 2005, 6:12pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/13 "2005-04-13T18:12:13Z")
> [@Hammer](#): > > I think the recent affirmative action ruling is close to this. 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. ---
**Author:** ![NillyWilly](https://avatars.discourse-cdn.com/v4/letter/n/3da27b/32.png) [@NillyWilly](https://boards.straightdope.com/u/NillyWilly)\ **Post date:** [April 13, 2005, 8:39pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/14 "2005-04-13T20:39:05Z")
> [@Bricker](#): > > The retroactivity rule was clarified in _Teague v. Lane_, 489 U.S. 288 (1989). Okay, I accept that. Please enlighten me with specifics? ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [April 13, 2005, 9:18pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/15 "2005-04-13T21:18:01Z")
> [@Polycarp](#): > > (c) 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. Like the Pledge case from last year. Wasn’t it dismissed because they said the father not being the custodial parent, had no standing? ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [April 13, 2005, 9:28pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/16 "2005-04-13T21:28:54Z")
> [@jsgoddess](#): > > 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. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [April 14, 2005, 3:45pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/17 "2005-04-14T15:45:16Z")
_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. ?? –Cliffy ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [April 14, 2005, 4:43pm UTC](https://boards.straightdope.com/t/has-the-scotus-ever-grandfathered-otherwise-unconstitutional-practices/298605/18 "2005-04-14T16:43:19Z")
> [@JRDelirious](#): > > 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 Are you talking Marsh V Chambers of 1983? [Court Decision](http://atheism.about.com/library/decisions/religion/bl_l_MarshChambers.htm) > [@](#): > > By a 6-3 vote the Supreme Court permitted the practice of beginning a legislative session with a prayer delivered by a publicly funded chaplain, with Chief Justice Warren Burger writing the majority opinion. > > The Court relied almost entirely on historical practice and tradition. Congress had paid a chaplain and opened sessions with prayers for almost 200 years. Indeed, the fact that Congress had continued the practice after considering constitutional objections in the Court’s view strengthened rather than weakened the historical argument. > > \*The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, “God save the United States and this Honorable Court.” The same invocation occurs at all sessions of this Court. > > In light of the unambiguous and unbroken history of more then 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making laws is not, in these circumstances, an “establishment” or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country. \* > > Basically, the decision argued that both the Supreme Court and Congress have traditionally begun their sessions with prayers. Since individual states do not have to abide by more stringent First Amendment limits than the federal government, then they, too, are permitted to use prayers. The “Establishment Clause does not always bar a state from regulating conduct simply because it harmonizes with religious concerns.”.