The Supreme Court was unanimously wrong in Rumsfeld v. FAIR.1 Though rare, it is not the first time the Court has been unanimously wrong. Its most notorious such decisions have come, like FAIR, in cases where the Court conspicuously failed even to appreciate the importance of the constitutional freedoms under attack from legislative majorities.2 In these cases, the Court’s very rhetoric exposed its myopic vision in ways that now seem embarrassing. Does FAIR, so obviously correct to so many people right now, await the same ignominy decades away?
FAIR was wrong in tone, a dismissive vox populi, adopted by a Court seeming to reflect and reinforce popular reactions to the case. But most importantly, FAIR was wrong in rationale, which is worse than getting a single result wrong. Not very much of practical significance for the whole country ordinarily hinges on the result in a single case settling the claim of a single litigant or group of litigants.
* Julius E. Davis Professor of Law, University of Minnesota Law School. I thank Jordan Reilly for research assistance.
1 126 S. Ct. 1297 (2006).
2 For examples of decisions that were unanimous but have since been widely criticized either for their results or their rationales, see Bradwell v. State, 83 U.S. (16 Wall.) 130 (1873) (unanimously upholding state law excluding women from the practice of law); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874) (unanimously upholding state law denying women the right to vote); Schenck v. United States, 249 U.S. 47 (1919) (unanimously upholding convictions for anti-war speech under the Espionage Act of 1917); Debs v. United States, 249 U.S. 211 (1919) (unanimously upholding conviction of Eugene Debs for political-convention speech praising draft resisters); Hirabayashi v. United States, 320 U.S. 81 (1943) (unanimously upholding conviction for violating curfew order applicable only to persons of Japanese ancestry). I emphasize that not all of these decisions were necessarily wrong in result. See, for example, Jim Chen’s excellent discussion of why Minor v. Happersett was correctly decided on his blog at Jurisdynamics, Totally Mistaken, Never in Doubt, at http: jurisdynamics.blogspot.com/2006/07/totally-mistaken-never-in-doubt.html (last visited July 19, 2006).