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Volokh Conspiracy

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

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


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.