March 2003 - #1. Book Reviews The Supreme Court in the Intimate Lives of Americans. Howard Ball. Published by the New York University Press, 2002, 262 pp., $40.00.

Vermont Bar Journal

2003.

March 2003 - #1.

Book Reviews The Supreme Court in the Intimate Lives of Americans. Howard Ball. Published by the New York University Press, 2002, 262 pp., $40.00

Vermont Bar Journal - March 2003

Book Reviews

The Supreme Court in the Intimate Lives of Americans. Howard Ball. Published by the New York University Press, 2002, 262 pp., $40.00

Reviewed by Joseph E. Frank, Esq.

The author of this book is Professor Howard Ball, known to many in the bar of Vermont as a political scientist and prolific author who specializes in U.S. Supreme Court history and teaches at the University of Vermont. In this book he summarizes and analyzes the principal constitutional decisions of the Supreme Court (up to the current Term) pertaining to governmental regulation of sexual relations, marriage, abortion, childrearing, and termination of life. Most of the decisions concern state law, but two federal statutes - the Violence Against Women Act of 1994 and the Defense of Marriage Act of 1996 - also receive attention. The book is written for non-lawyers, but it also is a useful primer for practicing attorneys.

Most interesting to a practicing attorney is the author's analysis of the deliberative process used to arrive at decisions in the Supreme Court. Professor Ball has studied the collected papers and letters of nine justices available at the Library of Congress and three university libraries. These papers are liberally cited for what transpired in the justices' private Friday conferences, what views the justices communicated to each other outside of those conferences, and the work done by their law clerks. In contrast, Woodward and Armstrong's The Brethren1 cites no sources for any particular revelations of the inner workings of the Supreme Court, purporting to be based on confidential interviews with (and documents leaked from) 170 former law clerks and others. The loss of secrecy regarding the decisionmaking of the Supreme Court is both good and bad: it is good for understanding legal history, but fosters disrespect for individual justices and the Supreme Court as an institution.

The decisions reviewed in the book focus on three intertwined issues: whether the law invades a constitutionally protected zone of privacy; whether the Due Process Clause is violated by an infringement of the protected "liberty" interest; and whether the Equal Protection Clause is violated by disparate treatment. Since these are profound issues in constitutional law, it is not surprising that many decisions are closely divided with multiple opinions on one or both sides of the issues.

Griswold v. Connecticut,2 is one of the cases studied in the book. The decision invalidated a Connecticut statute prohibiting the dissemination of birth control information. The differing views of the justices in their Friday conference after oral argument are laid out in detail (at pp. 46-48). The landmark opinion for the majority, by Justice Douglas, originally was written in terms of a violation of freedom of association protected under the First Amendment. The opinion was rewritten in terms of a constitutional right to privacy at the suggestion of Justice Brennan (at pp. 32-34).

Bowers v. Hardwick,3 is another of the cases studied in the book (at pp. 24-26). It sustained against constitutional attack a Georgia sodomy statute under which two men had been arrested for engaging in oral sex in the bedroom of one of the participants. In the Friday conference after oral argument the justices voted 5-4 to affirm the Eleventh Circuit decision which had invalidated the statute based on a constitutional right of privacy. Subsequently Justice Powell changed his mind. Justice White's opinion for the reconstituted majority rejected privacy protection for consensual homosexual activity on the ground that such activity is not part of the history and traditions of American society.

On March 26, 2003, the Supreme Court will hear oral argument in Lawrence v. Texas,4 in which the constitutional validity of the Texas sodomy statute is at issue. The Texas statute and the sodomy statutes of three other states criminalize oral and anal sex only between same-sex couples. (Nine other states have sodomy statutes applying to all couples.) One possible outcome is that Bowers v. Hardwick will be overruled. The easy way out will be invalidation of the Texas statute on the ground that it violates the Equal Protection Clause by not applying to opposite-sex couples.

With the advent of civil unions in Vermont, courts of other states already are being asked to recognize them. The Defense of Marriage Act of 1996, enacted by Congress and signed by President Clinton, may absolve other states of any duty to give effect to Vermont civil unions. The issue of whether the statute is valid under the Full Faith and Credit Clause of the U.S. Constitution is raised by Professor Ball (at pp. 65-66), but he does not predict what the Supreme Court will do when it eventually faces the issue.

Roe v. Wade5 and its progeny are analyzed in Chapter 4 of the...

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