A Remarkable Term

Walter Dellinger and Dahlia Lithwick

A Remarkable Term

Walter Dellinger and Dahlia Lithwick

A Remarkable Term
An email conversation about the news of the day.
June 26 2003 12:56 PM

Walter Dellinger and Dahlia Lithwick

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Good afternoon, Dahlia,

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What is most striking about Justice Kennedy's majority opinion in Lawrence v. Texas is how warmly he embraces the dignity of gay and lesbian relations. For example, he says early on that to characterize the issue before the court as,

simply the right to engage in certain sexual conduct demeans the claim put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. ... When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

And, when the time comes in the opinion to overrule Bowers v. Hardwick, he writes, with powerful simplicity: "Its continuance as precedent demeans the lives of homosexual persons."

Justice Scalia's response is as strongly worded as one might expect. His statement that the court "has taken sides in the culture war" cannot easily be dismissed. As I noted earlier today (in a more positive vein than Scalia), there has been a cultural shift around this issue. Scalia's resentment of the Establishment on this issue is palpable when he writes: "Today's opinion is the product of a Court, which is the product of a law-profession culture that has largely signed on to the so-called homosexual agenda."

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But he writes for only for himself, the chief, and Justice Thomas.

Thus ends a remarkable term. Linda Greenhouse wrote last Sunday that the court has moved to the right ("Will the Court Move Right? It Already Has"), and she is may be correct about the prisoner cases. But the number of progressive results is close to stunning.

  • The method of funding of Legal Services for the poor by "taking" the interest on lawyers trust accounts is upheld against a property rights challenge.
  • The Family Medical Leave Act is upheld as applied to the states, in spite of strong case law on state sovereignty.
  • Justice Powell's lone opinion in Bakke sustaining the use of race for diversity becomes the opinion of the court.
  • A capital case is overturned because of ineffective assistance of counsel.
  • The retroactive extension of the time for bringing sex abuse charges is held unconstitutional.
  • Bowers v. Hardwick is overruled.

There is one thing that all these cases have in common: Justice O'Connor is in the majority in every one of them.

And here are the most startling statistics that emerge from the final list of the justices voting patterns:

  • Number of 5-4 opinions: 13.
  • Number of 5-4 opinions in which Justice O'Connor is in the majority: 13. Number of dissenting opinions by Justice O'Connor: 0.

I'll write about Justice O'Connor tomorrow.

Kind regards,
Walter

Walter Dellinger is a Duke University law professor and a Washington attorney.