The Volokh Conspiracy

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Justice Stevens's Papers Reveal How The Fortune Cookies Were Baked In Lawrence v. Texas

Believe it or not, Justice Kennedy's final opinion toned down some of the "awkward language."


So far, I have not been blown away by the revelations from Justice Stevens's papers. Maybe my expectations were too high. In one sense, the earlier drafts are something like legislative history history, and do not represent the full opinion of the Court. But more precisely, Stevens did not have all of the memos that explain why certain changes were made. I suppose those records may be found with Justice Kennedy's papers.

In any event, the latest story from Joan Biskupic and Devan Cole includes a few worthwhile revelations about Lawrence v. Texas.

First, believe it or not, Justice Kennedy's draft opinion had even more cringeworthy rhetoric. And the Court's progressives objected!

Kennedy also withdrew language that some of his colleagues regarded as awkward or out of place, such as, "The sexual instinct is of endless fascination for the human. Its beauty and power are best respected when the individual has substantial freedom to explore it to attain a better understanding of the concept of self and the place he or she has in a larger universe."

His final opinion, instead, said in that section, "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."

Justice Scalia, preach:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity," I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

And to paraphrase Scalia and Bismarck, "no one should see how sausages or Kennedy opinions are made."

Second, at conference, Justice Breyer only wanted to grant cert if there were five votes to reverse Bowers:

When the nine justices considered in December 2002 whether to take up the appeal, Stevens, Kennedy, David Souter and Ruth Bader Ginsburg voted to hear the case. (It takes four to grant a case a hearing but five to decide it.)

Breyer signaled that he wanted to hear the case, too, Stevens' notes indicate, but only if those ready to hear it were prepared to stick together for a majority to reverse Bowers' holding that constitutional due process of law does not cover private same-sex relations.

I don't know if we have ever seen confirmation that there is such an overt discussion of the merits at the conference vote to grant cert. I always assumed these conversations happened, but Stevens's papers reflects that practice exists.

Third, Justice O'Connor voted not to grant cert–perhaps to avoid having to revisit Bowers.

Then-Chief Justice William Rehnquist and Justices O'Connor, Scalia and Clarence Thomas voted to let the lower court action and the charges against the men stand. It is not known why O'Connor voted against the appeal at this stage, but she may have wanted to avoid confronting her vote with the majority in the earlier Bowers case.

Fourth, O'Connor reached her decision on equal protection after oral arguments, and never planned to join Justice Kennedy's majority opinion.

After oral arguments on March 26, 2003, the five votes held, according to Stevens' notes from their private meeting, and O'Connor moved to their side as well. She wanted to reverse the lower court ruling, on the grounds that the Texas law violated the equal protection of the law. That allowed O'Connor, also an appointee of Ronald Reagan, to avoid casting a vote to outright reverse her Bowers v. Hardwick position.

Fifth, Justice Breyer urged Justice Kennedy to limit his majority opinion to the sodomy ban. Breyer, ever the pragmatist, realized that Lawrence should not, overtly at least, reach out to the same-sex marriage issue. That (inevitable) result would come twelve years later in Obergefell.

"After reading my first circulation, Stephen [Breyer] suggested revisions to make it clear we do not decide more than the question presented," Kennedy wrote on June 10 of that year of a conversation with Breyer. "These, plus a few other edits, are contained in a new circulation to the entire Court. Stephen's suggestions were quite constructive, and I am hoping how he can join."

Sixth, it seems that Justice O'Connor initially framed her equal protection concurrence in terms of a classification. But she had discussions with Amy Wildermuth, a Stevens clerk, who was the only-out gay law clerk at the Court that term. Wildermuth suggested other language that focused on "moral disapproval."

At the top of Stevens' copy of O'Connor's first draft is the small notation, "Suggested changes to SOC's opinion from Amy Wildermuth." Throughout the eight-page draft are various edits, mainly concerned with the nuances of phrasing. . . .

In her conclusion, for example, O'Connor had originally written, "A law branding one class of citizens as criminal solely because the majority disapproves of the defining characteristic of the class runs contrary to the values of the Constitution and the Equal Protection Clause."

O'Connor changed it to Wildermuth's suggested language: "A law branding one class of persons as criminal solely based on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause."

Wildermuth's revision here would prove quite significant down the road. This theme of "moral disapproval" played an important role in Justice Kennedy's majority opinion, and would ultimately form the basis for Windsor and Obergefell. Justice Scalia predicted as much in his Lawrence dissent:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence JUSTICE O'CONNOR has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad).

One final point on sourcing. CNN quotes Wildermuth:

"'Are we using the right terms?' 'Are we saying this in a way that could be offensive?' If you're not in the culture, you just don't know," Wildermuth said in an interview with CNN about the kinds of questions that came her way.

Wildermuth, now teaching at Ohio State Moritz College of Law, emphasized the era, when justices were less familiar with LGBTQ interests. "I was happy to share my perspective," she said. "It was not something I was uncomfortable with."

Nothing in the Stevens files indicated why Wildermuth was enlisted. When reached by CNN, she explained, "It wasn't unusual for people working on cases to be asked to help the clerks in other chambers, to provide feedback. It also was true that I was the only out gay law clerk at the time. That may also have prompted interest in getting feedback from me and from my co-clerks."

CNN apparently also spoke with other clerks from "various chambers" who confirmed Wildermuth's account, and commented on other aspects of deliberations. Jeannie Suk Gersen likewise wrote an article about the deliberations in Grutter and Gratz, based on the Stevens papers. She quoted two clerks from that term, Cristina Rodriguez (O'Connor) and Adam Mortara (Thomas).

Is talking to the press about internal deliberations the new normal? Is there some sort of statute of limitation--an O'Connor-esque 20 year clock on law clerk confidentiality? Or, is it that law clerks can speak out of turn to confirm information in publicly-available files.