The Ghost of the Warren Court Past

Walter Dellinger and Dahlia Lithwick

The Ghost of the Warren Court Past

Walter Dellinger and Dahlia Lithwick

The Ghost of the Warren Court Past
An email conversation about the news of the day.
June 26 2003 11:03 AM

Walter Dellinger and Dahlia Lithwick

VIEW ALL ENTRIES

Walter,

Advertisement

What an astounding week! 

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

As you noted earlier, today's holdings, plus Monday's, represent a shockingly progressive set of decisions from a supposedly conservative court. Pretty much everyone had suspected that the court would invalidate the Texas sodomy law in Lawrence v. Texas—but most of us thought it would be done on the narrowest possible grounds, somehow preserving Bowers v. Hardwick, and limiting the holding to Texas and the three other states that single out homosexual sodomy for criminal prosecution. But instead we have Justice Kennedy, writing for the majority, using the broader substantive due process rationale (you may remember it from such favorites as Roe v. Wade) to carve out a zone of privacy for consensual gay sex! O'Connor declined to overrule Bowers, a decision in which she had joined the misguided majority, but still sided with the majority today to invalidate the Texas law, on the Equal Protection grounds you outlined this morning. My goodness, could Kennedy and O'Connor have had some sort of conversion—some Dickensian visitation? Did the ghost of Justice Warren appear to them in the night, terrorizing them with visions of an apocalyptic America where strict construction and originalism blight the land?

Please—offer up your insights on O'Connor! She is truly the International Justice of Mystery. ...

In his opinion today, Justice Kennedy painstakingly points out the fundamental flaw in the logic of Bowers: Instead of deciding whether consensual homosexual conduct was fundamentally private, intimate activity that came under the murky zone of privacy, established by Griswold v. Connecticut and its progeny, the Bowers court just asked whether gay sex had been a protected activity for zillions of years. By framing the question in such an absurdly narrow way, the court arrived at the (wrong) answer they sought. Exhibit D in the trial of legal "pragmatism" (aka judges' moral preferences) versus legal rigor. Kennedy next goes after the Bowers court's distortion of the history of laws criminalizing sodomy. And his refusal to abide by the need for stare decisis (the doctrine that makes courts stand behind even bad prior decisions for the sake of consistency) is braced by a reference to Justice Stevens' dissent in Bowers: "The fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack."

Advertisement

Of course the Kennedy opinion does not make it clear exactly which fundamental right he's privileging, other than some inchoate right to do what one wants in the bedroom, so long as no one is being hurt. Is he deliberately sweeping any and all sexual activity into the fuzzy category of all-things-private, or is he saying that one now has a fundamental right to commit homosexual acts? The force of the opinion seems to lie in the overruling of Bowers, as opposed to setting forth any coherent new rule or test.

Then we have Wiggins v. Smith, where, by a 7-2 vote, the same court that would ordinarily uphold any death penalty conviction—even if defense counsel had been hopped up on crack and dressed up as Cookie Monster—actually accepts an ineffective assistance of counsel claim. This court, which has blindly sided with the prosecution in the last few ineffective assistance of counsel cases, seems to have figured out (finally!) how shockingly bad/young/inexperienced/overburdened some court-appointed defense counsel can really be.

And then in Stogner v. California, O'Connor again signs on with the lefties to invalidate a California law that did away with statutes of limitations for sex abuse crimes. Not only does this foil prosecutors who were seeking to nail sex offenders, and specifically Catholic priests whose abuses may have occurred decades ago, but the logic used here also has implications for John Ashcroft's Patriot Act, which retroactively did away with statutes of limitations in cases involving hijackings, kidnappings, bombings, and biological weapons.

I gather Justice Scalia read his Lawrence dissent from the bench, citing again the lost "culture wars" and wringing his hands over the laws—including state masturbation laws—that can no longer be enforced. Why oh why does Justice Scalia care so very much about what happens in the privacy of America's pants? And true to form, in the Wiggins dissent, Scalia writes that the majority's logic ranged "from the incredible up to the feeble." I guess he didn't get the Dickensian visitation. 

You were right, and I was wrong, by the way: No retirements today, although the chief justice evidently shocked the heck out of the gallery by dramatically announcing the retirement of ... the court librarian. I confess I'm relieved. I like this new court just the way they are. I hope they have 10 more years in them. 

Yours,
Dahlia