One year shy of the fiftieth anniversary of Brown v. Board of Education, the Justices issued another equality ruling that is likely to become a historical landmark. In Lawrence v. Texas, the Court invalidated a state law that criminalized same-sex sodomy. This article contrasts these historic rulings along several dimensions, with the aim of shedding light on how Supreme Court Justices decide cases and how Court decisions influence social reform movements. Part I juxtaposes Brown and Lawrence to illustrate how judicial decisionmaking often involves an uneasy reconciliation of traditional legal sources with broader social and political mores and the personal values of the judges. Part II considers what these landmark decisions teach us about the relationship between Supreme Court decisions and movements for social reform. Part III examines the light these rulings shed on the strategic aspect of judicial decisionmaking: how courts sometimes temper their decisions in light of political constraints. Part IV considers the consequences of Brown and Lawrence (and Goodridge v. Department of Public Health) and, especially, the political backlashes they ignited. Part V analyzes the rulings from the perspective of Supreme Court Justices attempting to predict the future. A brief conclusion speculates as to what such decisions-and history's verdict upon them-teach us about the source of the Supreme Court's legitimacy.
Michael J. Klarman,
Brown and Lawrence (and Goodridge),
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol104/iss3/2