Raining on the parade of horribles: of slippery slopes, faux slopes, and Justice Scalia's dissent in Lawrence v. Texas.

• Author: Sternglantz, Ruth E.

INTRODUCTION

Anyone else bored to tears with the "slippery slope" arguments against gay marriage? Since few opponents of homosexual unions are brave enough to admit that gay weddings just freak them out, they hide behind the claim that it's an inexorable slide from legalizing gay marriage to having sex with penguins outside JC Penney's.

--Dahlia Lithwick (1)

The slippery slope is in some ways a helpful metaphor, but as with many metaphors, it starts by enriching our vision and ends by clouding it.

--Eugene Volokh (2)

On June 26, 2003, the Supreme Court delivered its opinion in Lawrence v. Texas, (3) a case challenging the constitutionality of a state statute criminalizing homosexual (but not heterosexual) sodomy. (4) The Court held that the Texas statute (and, by implication, others like it) was unconstitutional, violating petitioners' due process rights, (5) and thus overturning its 1986 ruling in Bowers v. Hardwick. (6) Justice Scalia, writing in dissent, warned that Bowers was a necessary barrier to the invalidation of numerous state laws regulating morals offenses and that Lawrence was, therefore, the first step onto a slippery slope that would lead courts to legalize a parade of sexual-conduct horribles. (7) Justice Scalia offered no legal reasoning to bolster this emotional appeal, a continuation of his baldly homophobic dissent in Romer v. Evans. (8) This Comment examines the slippery slope argument, as used in judicial opinions, so as to distinguish Justice Scalia's seeming use of this rhetorical technique from what I will demonstrate are its legitimate uses.

The slippery slope argument is a mainstay of legal reasoning and disputation. (9) As suggested by Professor Eugene Volokh in his recent anatomy of the technique, "the most useful definition of a slippery slope is one that covers all situations where decision A, which you might find appealing, ends up materially increasing the probability that others will bring about decision B, which you oppose." (10) In some sense, of course, this problem is inscribed in the very nature of judicial decision making. Reasoning by means of precedent means, on a fundamental rhetorical level, that most judicial decisions are themselves the products of one or several earlier decisions that set the course to the present case. (11) And every judicial decision then becomes grist for the mill, potentially setting precedent for any number of future judicial decisions. (12) What, then, prevents the fear of the slippery slope from paralyzing the entire adjudicative process, from becoming not a slope but a giant black hole whose gravity absorbs legal reasoning by means of reductio ad absurdum? (13) Probably nothing, if Volokh's definition is maintained--except the acknowledgment that for the designation "slippery slope argument" to be useful, it must describe only a subset of all arguments leading to judicial decisions and not (as it might) the entire field.

To refine Volokh's definition, then, let us say that when constructing a slippery slope argument, the arguer necessarily foregrounds not the present case (that is, the case now before the court) but a future case that is to be avoided: specifically, a future case whose dangerous outcome can be constructed as proximate to the outcome of the present case. (14) Indeed, speaking of slippery slopes generally and not only in the legal context, the Canadian philosopher Douglas Walton has noted that "the slippery slope argument is commonly used in critical discussion arising from deliberation to try to persuade someone not to do something he is contemplating. In many instances, as such, it is a reasonable argument, fulfilling a legitimate function in an argumentative dialogue." (15) So a slippery slope argument is a legitimate argument. But its power lies in the fact that it is more than a rational argument. It is a rhetorical technique designed to combine rational argument with emotional appeal, "an ominous or threatening warning about alleged government policies or intentions that most of the audience of the speech would be likely to view with alarm. "(16) In the context of judicial opinions, a slippery slope argument highlights the dire effects of proximately potential future decisions that are likely to result from the present case. (17) And the slippage of the slippery slope argument comes from amplifying "likelihood" to the point of necessity. (18) That is, someone appealing to the danger of the slippery slope seeks to convince her audience that if the present case is decided in a particular way, stare decisis will lock future courts into certain (implicitly unpalatable) decisions.

To be fair, none of us can predict the future, and we exercise the elision between "what will probably happen" and "what will definitely happen" on a regular basis. Indeed, as an ethical philosopher reminds us, it is that gap that makes the slippery slope argument so urgent:

In the absence of absolute knowledge and consequently absolute control over the consequences of our actions and decisions, we cannot afford to ignore the possible misuses of proposed reforms. Philosophers live in a world of clear-cut distinctions, where conceptual boundaries are easily identified. The real world, however, does not conform to such idealisations--although such distinctions may be a necessary means of coping with the world. When exponents of the slippery slope argument appeal to the indeterminateness of certain concepts they draw attention to an aspect of truth and reality which may be obscured by those seeking to impose clear-cut distinctions upon the world. (19) If we did indeed have perfect foreknowledge of the results of our actions, what might occur at some point down the road would pose an empty threat. It is precisely because we are aware that our behavior may have unintended unpleasant results that we cannot foresee that slippery slope arguments have power to curb present behavior. (20)

So, all judicial opinions might slide down the slippery slope, but they do not. Only some arguments in some cases get tagged as slippery slope arguments, under that eponymous rubric or one of the other pithy labels--"camel's nose," "foot in the door," "thin edge of the wedge," (21) "parade of horribles" (22)--deployed to metaphorically describe their operation. But sometimes, a judicial argument that looks like a slippery slope argument--like an argument that combines logical reasoning with emotion--is in fact not a logical, legal argument at all. Sometimes, the probably/definitely dangerous future warned of by the jurist posing the argument is, in fact, foreclosed by the present case. That is, not only would the present case not be a first step towards the undesirable future case being warned of, but the very rule of law established by the present case distinguishes it from that hypothetical future case. Sometimes there is no slope, no camel, no wedge, no parade.

In this Comment, I will explore these "faux slopes" strictly within the context of U.S. Supreme Court opinions. I will demonstrate that these arguments--cloaked in the rhetoric of the law--are often found in cases where status is at stake. (23) Ultimately, this Comment aims to argue that the seeming slippery slope argument deployed by Justice Scalia in his dissent to Lawrence (24) is not a legal argument at all but, rather, a fallacy, "a clever way of exploiting a rule of collaborative discussion in order to get the best of a trusting co-participant who presumes that all other participants are following the expectations of the discussion." (25) Part I will give a brief overview of the scholarship on slippery slope arguments. Part II will then proceed to illustrate how these arguments have been used, both in majority opinions and in dissents, by Supreme Court Justices, concluding with a discussion of Plessy v. Ferguson. (26) In Part III, I will analyze the slippery slope arguments used in an earlier notorious case involving the status of black people, Scott v. Sandford, (27) to make the claim that what poses as a slippery slope argument in Dred Scott is no legal argument at all. (28) And finally, Part IV will posit that the dissent's slippery slope argument in Lawrence is fallacious--a "faux slope"--just as the Dred Scott argument was.

1. THE SLIPPERY SLOPE: A REVIEW OF THE CRITICISM

   For all of its centrality to legal reasoning, surprisingly little has been written about the operation of the slippery slope--how it works and why--by legal scholars. (29) But before proceeding to an analysis of specific cases, I think that it is useful in this Part to get a sense of where others have gone before.

   1. Frederick Schauer, Slippery Slopes

      The first study, a 1985 article by Frederick Schauer, is a compact and largely theoretical exposition on slippery slope arguments. (30) Schauer begins with a definition of the trope in which he highlights the latent threat in the present case: "[A] particular act, seemingly innocuous when taken in isolation, may yet lead to a future host of similar but increasingly pernicious events." (31) His aim, it seems, is to pare away types of non-slippery slope arguments so as to arrive at a "pure" slippery slope: (32) one that "claims that permitting the instant case--a case that it concedes to be facially innocuous and that it linguistically distinguishes from the danger case--will nevertheless lead to, or increase the likelihood of, the danger case." (33) Schauer eliminates types of arguments that he suggests differ substantially from pure slippery slope arguments, but his elimination process is quite brief, and scholars following him have not found his analysis terribly useful in practical application.

      Schauer suggests three non-slippery slope argument frameworks: "an argument against the instant case," where the arguer is really claiming that the bottom of the slope has already been reached; (34) "an argument directed against the excess breadth of a principle," where the person...