Why Does a Moderate/Conservative Supreme Court in a Conservative Age Expand Gay Rights?: Lawrence v. Texas

• DOI: https://doi.org/10.1016/S1059-4337(08)00806-5
• Pages: 173-217
• Date: 06 May 2008
• Published date: 06 May 2008
• Author: Ronald Kahn

WHY DOES A MODERATE/

CONSERVATIVE SUPREME

COURT IN A CONSERVATIVE

AGE EXPAND GAY RIGHTS?:

LAWRENCE V. TEXAS (2003)

IN LEGAL AND POLITICAL TIME

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Ronald Kahn

ABSTRACT

Legalists and social scientists have not been able to explain the expansion

of gay rights in a conservative age because they refuse to respect the

special qualities of judicial decision making. These qualities require the

Supreme Court to look simultaneously at the past, present, and future,

and, most importantly, to determine questions of individual rights through

a consideration of how citizens are to live under a continuing rights

regime. Unless scholars understand how and why Supreme Court decision

making differs from that of more directly politically accountable

institutions we can expect no greater success in explaining or predicting

individual rights in the future.

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Research assistance was provided by Brian Holbrook, Oberlin ’09.

Special Issue: Constitutional Politics in a Conservative Era

Studies in Law, Politics, and Society, Volume 44, 173–217

Copyright r2008 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(08)00806-5

173

INTRODUCTION

Why does a conservative/moderate Supreme Court in a conservative

political age expand implied fundamental rights to sexual intimacy for gays

and sustain the fundamental right of women to choose whether to have an

abortion? One would expect the Supreme Court in the late 20th and 21st

centuries to be quite conservative. Since 1969, when President Nixon named

Warren Burger as Chief Justice, and 2005, when Republican President

George Bush appointed Chief Justice Roberts, thirteen appointments have

been made to the Supreme Court. Eleven of those appointees were made by

Republican Presidents.

1

The Supreme Court has not overturned any of the major individual rights

cases from the progressive Warren Court era (1954–1969). Moreover, during

the years under Chief Justice Warren Burger, 1969–1986, the Supreme Court

expanded individual rights in significant ways. It decided that there was a

right under the Constitution to abortion choice in Roe v. Wade (1973); that

gender classifications under the law would be subject to heightened judicial

scrutiny in Craig v. Boren (1976); and that race can be one factor among

many in the admission of students to colleges and universities in Regents of

the University of California v. Bakke (1978).

During the Rehnquist Court, the Supreme Court has reaffirmed the right

to abortion choice in Planned Parenthood of Southeastern Pennsylvania v.

Casey (1992)

2

and the principle that race can play a role in university

admissions in Grutter v. Bollinger (2003). Even with the addition to the

Court of Chief Justice Roberts and Justice Alito, the Supreme Court refused

to say that race cannot be a factor in attempts by school boards to diversify

public schools.

3

Most significantly, in Lawrence v. Texas (2003), the

Supreme Court overturned Bowers v. Hardwick (1986) and extended the

implied fundamental rights of privacy and personhood to homosexuals.

Moreover, the Supreme Court has reaffirmed and expanded implied

fundamental rights and equal protection under the law during a period of

dominance of social conservatives, evangelical Christians, and others,

who view the protection of their definition of ‘‘family values’’ as a

central mission of government. These social conservatives hoped that

Republican appointees to the Supreme Court would roll back abortion

rights, gay rights, affirmative action policies, and constitutional separation

of church and state. However, in these doctrinal areas, the Supreme

Court has either sustained doctrine in opposition to the core values of the

base of the Republican Party, or actually has expanded rights in these

doctrinal areas.

RONALD KAHN174

In the first section of this chapter, I argue that this conservative-moderate

Supreme Court in a conservative age has expanded implied fundamental

rights for gays and sustained the right of abortion choice because of the non-

originalist justices’ reliance on what I will call principled bi-directional

Supreme Court decision making (PBD). The Court’s decision making is

principled because of the importance of rights and polity (institutional)

principles; it is bi-directional because of the key relationship between the

internal Court decision-making process and the social and political world

outside the Court.

In the second section of this chapter, I explore why so many law school

scholars, political scientists, and historians have failed to explain, much less

predict, the expansion of implied fundamental rights by the Supreme Court

in the late 20th and early 21st centuries. While focusing on Cass Sunstein’s

theory of judicial minimalism, I argue that because both law school scholars

and social scientists seek to explain doctrinal change based on phenomena

external to the Court, they fail to understand why a conservative Court in a

conservative era expands implied fundamental rights; they fail to recognize

that at the core of Supreme Court decision making is a mutual construction

process, in which both internal institutional norms and principles and

external phenomenon are central. Moreover, the external world important

to the Court is not simply or primarily a concern about interest group and

legal advocacy politics; it is a concern for lives as lived by citizens under a

rights regime.

In the final section of the chapter, I explore the political effects of non-

originalist Supreme Court justices’ accepting PBD, and originalist justices

rejecting it. I argue that PBD leads to a legal secularity, a form of objectivity

that increases the relative autonomy of the Supreme Court from direct

influence of politics. This objectivity also raises questions in the wider

society about the legitimacy of the Supreme Court’s power to define implied

fundamental rights. This questioning of Court legitimacy has become a

defining fissure in American politics and among constitutional scholars of

quite different political stripes. However, even with the legitimacy of PBD

becoming a key fissure in American politics, I argue that the Supreme Court

has continued to be a motor for social change in this conservative age.

I conclude the chapter with a brief discussion of the implications of

PBD with regard to how we should study the Supreme Court as an

institution in a wider process of American political development. I argue

that because of the unique qualities of Supreme Court decision making, as

evidenced by the PBD, and the nature of what I call legal time, the Court,

unlike more directly politically accountable institutions, like the Presidency,

Expansion of Gay Rights in a Conservative Age 175