Book Review: Supreme Court in Intimate Lives

This article is reprinted with permission from the March 21, 2003 edition of the New York Law Journal. © 2003 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited.

Friday, March 21, 2003
New York Law Journal p. 2, col. 3
Copyright 2003 ALM Properties, Inc. All rights reserved

The Supreme Court in the Intimate Lives of Americans:
Birth, Sex, Marriage, Childbearing and Death 
by Howard Ball
Reviewed By Phil Schatz

The vast majority of Americans would likely agree that they have a constitutional right “to be let alone,” free from unwanted government interference (echoing Justice Louis Brandeis and, before him, John Stuart Mill, 19th-century philosopher and economist) especially as to such intimate personal matters as sex, family and death. In fact, there is no such right, at least not in such generalized terms.

A noteworthy example is gay sex. In 1986, the Supreme Court held in Bowers v. Hardwick that Georgia could make private, consensual gay sex a crime punishable by up to 20 years in prison, John Stuart Mill be damned. Justice Lewis Powell, the swing vote, had never known an openly gay man — though one of his clerks allegedly was in the closet — and privately worried that legalization of sodomy would weaken “civilization itself”; Chief Justice Warren Burger, who lacked Justice Powell’s self-awareness that his views were as much a product of emotion as law, called sodomy “an offense of deeper malignity than rape” … “the very mention of which is a disgrace to human nature.” Bowers was roundly criticized as a petty ruling based upon the majority Justices’ personal distaste concerning homosexuality. The issue is before the Court again this term in Lawrence v. Texas (oral arguments scheduled for Wednesday, March 26), which involves a challenge to a Texas statute that criminalizes only homosexual oral and anal sex — heterosexuals being free to practice such acts to their heart’s content without state interference. Despite the short time between these cases, less than a generation, the public attitude towards homosexuality appears to have changed quite a lot. This can be readily seen from, of all places, Texas’ brief opposing certiorari, which states that “[m]orality is a fluid concept, and public opinion regarding moral issues may change over time,” notes that “[p]erhaps homosexual conduct is not now universally regarded with the same abhorrence it [once] inspired” and recognizes that the state Legislature may be lagging behind public opinion.

How the Supreme Court decides cases such as Bowers — cases where law, morality, personal preference and politics intersect in the gray area between individual liberty and permissible government regulation — “intense human dramas … played on the judicial stage” — is the subject of Howard Ball’s entertainingly anecdotal “The Supreme Court in the Intimate Lives of Americans: Birth, Sex, Marriage, Childbearing and Death.” The book examines the Supreme Court’s treatment of “the most sensitive kinds of personal concerns” — marriage and marital privacy, family privacy versus state interests, abortion and reproductive rights, parental control over child-rearing, and death. Peppered throughout the various chapters are “case studies” of the most important cases in the area, described and contextualized in a way that will be accessible to every reader, including non-lawyers. Despite the controversial content of many of the cases, Mr. Ball maintains an air of bemused detachment and does not openly take sides. This is not a polemic. With few exceptions, the prevailing tone is light and scholarly. The goal is to illuminate, not to persuade.

Mr. Ball has written extensively concerning the Supreme Court and politics and shows quite convincingly that the Supreme Court is no less political than any other branch of government. Indeed, the court is revealed as a hotbed of political intrigue and maneuvering, driven by individual Justices’ own senses of right or political expedience. In the end, of course, the Court’s legitimacy depends on popular acceptance of its decisions, the most political influence of all.

Mr. Ball illustrates the “fluidity of choice” in judicial decision making. Justices often come to hot-button cases with strong personal prejudices, but the effective Justices show a willingness to listen to and try to understand the contrary view. (A Justice who lacks this openness, such as — apparently — Justice Antonin Scalia, will have difficulty influencing the other Justices). Justices can, and do, change their minds. Thus, for example, a 5-4 vote to affirm the unconstitutionality of the sodomy statute in Bowers becomes a 5-4 vote to hold it constitutional; a 6-3 vote to affirm a state court judgment in Time Inc. v. Hill becomes a 7-2 vote to reverse it. Sometimes the change is a matter of a true change of heart, in other cases it is the result of horse-trading or a recognition that support for the “right” idea cannot be won (or, if won, kept) in the wrong case.

The politics sometimes makes strange bedfellows, or sometimes results in decisions so fractured that no two Justices can agree on the precise rationale. Very frequently, the personal views of the individual justices appear to lag behind the views of the majority of Americans — who, ironically, have come to their views based in no small part on prior Supreme Court decisions. Thus, the generations that grew up with the ringing affirmation of the right of the individual to be free of government intrusion into private sexual conduct (leaving aside the Supreme Court’s intention to limit the rulings to procreation), and the burgeoning women’s-rights and gay-rights movements, are far less willing to validate laws regulating purely private consensual sexual conduct between adults. Another area in which the views of the Justices may soon have to yield to the pressures of public opinion is physician-assisted suicide and the rights of patients and families to chose the appropriate manner and time of death. (Consider this: In 1900, the average American died at home, before turning 46 years old, of communicable disease. In 2000, the average age at death is 77, and most deaths are caused by chronic lingering ailments that require extensive hospitalization. Death isn’t what it used to be.) Given the combination of the aging baby-boomer generation and advances in technology, this issue is not going away.

The Justices generally come across as human beings striving to do the right thing as best they can. Former Chief Justice Burger and current Justice Scalia come across least favorably: Justice Burger because he appears to have manipulated assignments for blue-nosed ends that have been so clearly rejected by the flow of public opinion; Justice Scalia because he appears to go out of his way to assail those who do not share his personal morality as stupid, dishonest or deluded.

According to a former law clerk, Justice Scalia “knows how right he is.” In cases involving the intimate lives of Americans, however, such certitude may be the delusional viewpoint. Well-meaning certainty may also be, as Justice Brandeis warned, the most potent threat to our individual freedoms: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”