Spanning ideological chasms: the response to conceptual segregation in Bowers v. Hardwick.

• Author: Srader, Doyle

I

On July 13, 1986, the United States Supreme Court released a 5-4 decision in the case of Bowers v. Hardwick in favor of the state of Georgia, rejecting Michael Hardwick's claim that the state law prohibiting consensual sodomy violated the constitutional right to privacy that had overturned similar state laws against contraception, abortion, and interracial marriage. From the beginning, the decision departed from standard Court practice. Justice Powell initially voted to overturn the law, resulting in a 5-4 decision for Hardwick, but then changed his vote and affirmed the law's permissibility (Taylor, 1993). At the decision's announcement, Justice White, author of the majority opinion, and Justice Blackmun, author of an angry dissent, both took the unusual steps of reading portions of their opinions aloud from the bench (Taylor, 1986). While conservative religious groups applauded the ruling, an editorial in the New York Times called it "unreal, frightening, and an unimaginable reversal of our previous impression of the judiciary as a protector of individual freedom against parochial intolerance" (Smith, 1986).

Eight years later, Bowers v. Hardwick has yet to fade into the law books. At the time of the decision, many observers warned that it signalled the beginning of the end for judicial protection of the right to privacy, the right to make decisions that concerned intimate relationships and procreation, without government interference (Marcus, 1986). Four years later, a study by the Alliance for Justice cited one hundred references to Bowers in state and federal court decisions which curtailed the right to privacy (Greenhouse, 1990). Bowers continues to play a significant role in shaping American jurisprudence. One constitutional law professor referred to the justices' framing of the issues as "a methodological dispute which is of great importance, indeed as important as the outcome of the case itself" (Agneshwar, 1990, p. 3). Another legal commentator elaborated:

Legal arguments, method, or analogical reasoning may mean little to the committed, both on the left and on the right of the legal-political spectrum. But Justice Powell's change of mind is credible evidence that, for less doctrinaire jurists, cogent legal argumentation and sound analogical reasoning are indeed "outcome determinative." For this reason, it is now important to reread Bowers v. Hardwick; and to analyze closely the legal method and arguments of the majority, concurring and dissenting opinions. (Wishingrad, 1990, p. 2)

II

Ross (1991) has suggested that each person who reads an opinion authored by a Supreme Court justice assumes the responsibility of critic:

After reading the opinion, no morally neutral position is available to us. If we speak about the case, we take on the role and responsibility of the critic. The discourse of the critic is the discourse of normative analysis. In one way or another, we speak of what ought to be. Our membership within the community of law makes even silence a morally charged position.

Several authors have written that the Court's authority stems from the cogency of reasons and arguments that bolster its decisions and are explained in its opinions (Chemerinsky, 1987; Smith, 1991; Wardle, 1980). Alternatively, Choper (1980) argues that the mystique of the Supreme Court, the pomp and ceremony surrounding its operations, serves to create awe in the minds of its audience, which in turn serves as the basis of the Court's legitimacy. Zeppos (1991) draws upon this idea to explain the Court's delicate, and occasionally impenetrable, treatment of controversial issues. According to Zeppos, the Court's majority opinions are intended not to reflect accurately the Court's reasoning in rendering a decision, but rather to bolster the decision, to address the sources of controversy and attempt to quell them before an outcry can be raised. This preemptive strategy builds a degree of dishonesty into the system:

The point of formalist reasoning is to legitimate judicial power by not disturbing the complacency held by most people. This vision of the law is far more elitist than Turow could portray. Nothing changes in judicial rhetoric because the public pays no attention or simply knows no better. If the public is curious the courts' opinions provide false information.

Wardle (1980) further delineates the institutional motive which underlies court decisions in general, and Supreme Court decisions in particular. Wardle calls the judicial branch "a classically conservative force--a preserver and protector of the traditional, the established, and the status quo". Goldstein (1988) clarifies the influence of political philosophy in jurisprudence, noting that while the legal system's bias is conservative, the clash between liberal and conservative viewpoints in legal settings often determines both the degree of difficulty in resolving the disputes and the mode of discourse employed in the resolution. Goldstein further observes that justices frequently fail to persuade one another with their most reasonable arguments or their harshest criticism because of the irreconcilability of these two world views. West (1988) describes the specific rhetorical approaches employed by the two sides. According to West, conservative judges employ authoritarian discourse, an interpretive lens which acknowledges the legal forum solely as a hermeneutic enterprise in which judges resolve disputes through dispassionate application of laws produced by the elected legislature. Within such a framework, the good of the community is favored over the good of the individual, since laws are a product of community consensus. Liberal judges produce normative discourse, through which the law is used as a tool to build a more desirable society by producing the fairest, most equitable outcomes to disputes. Individual interests are valued above community cohesion, because the goal is to arrive at the best possible settlement of the particular dispute, rather than to enforce the will of the legislator.

Wardle notes that judicial conservatism is particularly strong when issues of morality are introduced into legal discourse. This coheres with West's claim that authoritarian discourse is more favorably received "when the social bonds . . . have badly deteriorated", a predictable consequence of clashes between moral systems. Henderson (1987) further bolsters Wardle's claim with the observation that elements of the legal system are consciously designed to exclude discussion of issues of morality. Such questions are often discarded by conservative judges as non-germane to the task of interpreting legal text, because they are said to be the sole province of the elected legislature.

Henderson also notes that such amoral jurisprudence frequently involves describing certain groups in a disparaging and exclusionary manner. Ross extends upon this idea when he describes the rhetorical strategy of "conceptual segregation," a subtle relegation of a selected outgroup to a subordinate position within society. The strategy involves two steps. First, the outgroup must be homogenized into a faceless mass identifiable by a single distasteful characteristic. Second, and more importantly, once the outgroup is distinguished, then the normalcy of the majority and the deviance of the outgroup must be established:

The creation of the category . . . also makes possible the assertion of their moral weakness. To assert their moral weakness, "they" must exist as a conceptually distinct group . . . . we often hear an underlying message of deviance: we are normal, they are deviant. Our feelings about their deviance range from empathy to violent hatred. Still, even in the most benevolent view, they are not normal. Their deviance is a product of a single aspect of their lives . . . . All other aspects of their lives are either distorted by the label of deviance or ignored. By creating this class of people, we are able at once to distinguish us from them and to appropriate normalcy to our lives and circumstances. (pp. 1499-1501)

In Ross's study, the outgroup is the "poor." Ross examines a series of court decisions involving participants in government welfare programs. He repeatedly encounters a rhetorical pattern which downplays the plight of the impoverished through the use of language that is understatedly descriptive, and derogatory. Poor people are consistently described as more likely to be addicted to drugs or alcohol, to abuse their children, or to defraud the government agencies which support them, than their more affluent peers. The justices omit any mention of poor people who work hard to provide for their families, or to rise above their situations: in the Court's view, only a motley collection of lazy, unmotivated, dishonest individuals serve to represent the lower socioeconomic class. Ross concludes that the pattern is not coincidental, that judges deliberately and systematically apply unfavorable descriptive language to groups they find distasteful, such as poor people, in order to justify refusal to grant such groups their petitions.

The potency of this tactic in enabling justices to override the dictates of conscience lies in its ability to fulfill the function described by Zeppos of numbing the public's sensitivities, of keeping them quietly satisfied that the Court is not up to anything out of the ordinary. The slight move from sameness to difference, inherent in the legal function of drawing lines and describing categories, extinguishes sympathy without risking an arousal of controversy. Ross notes,

Accepting the us/them construct makes the assertion of moral deviance easier to accept, and, reciprocally, the acceptance of the construct of moral deviance reinforces the idea of difference. If we had no conception of difference--if AFDC mothers were not thought of as a category distinct from mothers in general--the assertion of moral deviance would be disturbing...