Supreme Court

On the Timing of Judicial Decisions: The Case of Bowers v. Hardwick

Influencing when a decision is issued can affect the attention it receives.

|The Volokh Conspiracy |

In my recent post discussing when we might see an opinion from the U.S. Court of Appeals for the Fifth Circuit in Texas v. U.S., I wrote that I was "not aware of any instance in which judges manipulated the timing of an opinion" in order to affect how much coverage or attention the opinion receives. VC readers are apparently more aware of such things than I am.

In 2010, the NYT's Adam Liptak wrote about the timing of the Supreme Court's decision in Bowers v. Hardwick:

If justices are to engage in what their colleagues may view as a breach of collegiality and decorum, they want it to count.

Consider Bowers v. Hardwick, the 1986 decision that said there was nothing in the Constitution to stop states from making it a crime for gay men to have consensual sex at home. Justice Harry A. Blackmun had written a dissent, and he was thinking about summarizing it from the bench.

That sounded good to his law clerk, Pamela S. Karlan.

"The majority's treatment is a disgrace," she wrote in a memorandum to the justice that became public when his papers were released "and it's well worth making clear to everyone what the case is really about."

Ms. Karlan, now a law professor at Stanford, also had some public relations advice for her boss about the case, which was to be announced that Friday.

"I think Friday is a bad day to have the case brought down," she wrote. "A summer Friday and Saturday are probably the least likely time for people to take notice of what the court has done. I would press, if I were you, for Monday instead."

The announcement was indeed pushed back, and Justice Blackmun delivered a passionate dissent. It took 17 years, but the court came around to his view when it overruled Bowers in Lawrence v. Texas.

Speaking of Lawrence v. Texas, that decision (striking down a Texas' law criminalizing same-sex sodomy), Windsor v. United States (striking down the federal Defense of Marriage Act), and Obergefell v. Hodges (requiring states to recognize same-sex marriage on equal terms with opposite-sex marriage), were all handed down on June 26. I doubt that was a coincidence.

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  1. affect.

    1. Ack! Fixed.

  2. When I was an undergraduate (c. 1993), I had a professor in a political science class who told me that Roe v. Wade and Bowers v. Hardwick were philosophically irreconcilable, and one would have to go. I guess she was right.

    1. Interesting. In my Con Law 1 class (so, 1989 or so), the professor (pro choice) offered his opinion that two of the worst cases in (relatively-) recent history were Roe and Bowers, in terms of poor legal reasoning. So, while he liked Roe’s result and hated Bowers’ result, he felt both were quite weak, constitutionally-speaking. I’m guessing that a decent amount of constitutional scholars feel/felt the same way.

  3. Ginsburg read her Ricci v. Distefano dissent from the bench, I mean how simultaneously wrong and self-righteous can one get?

  4. The SCOTUS is a political branch. However much you might wish it weren’t, it is, and always has been.

  5. In Masterpiece Cakeshop the Court handed down its ruling on June 4. Had it gone the other way, it probably would have been on June 26.

    1. Apparently June 26 is “Gay Day” at the Court.

      Perhaps someday it will be a national holiday .

      1. Any reason we should not just progress against bigotry?

        Other than vestigial bigotry, I mean.

        1. Sorry slaver, but it isn’t bigotry to not believe that buggering another dude is an act of “love.”

          1. ‘course not.

            Sex isn’t always about love. Sometimes it’s just sex.

            And yes, sometimes sex is also making love.

            That doesn’t change based on whether you’re talking about a man and a woman, a man and a man, or a woman and a woman. It’s the love that makes sex an act of love, not the sex.

            1. Love it ain’t. It’s lust.

      2. “Apparently June 26 is “Gay Day” at the Court.”

        Chief Justice to new Justice:

        Do you drink? Yes? You’re going to love October 4.
        Do you gamble? Yes? You’re going to love March 25.
        Are you gay? No? You’re going to hate June 26.

  6. One conservative justice being replaced with one liberal justice is “the court came around” only in a very generously anthropomorphic sense.

  7. The same Pamela Karlan who embarrassed herself with her testimony in front of the House impeachment committee?

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