Consider this a follow-up to yesterday’s post on the culture of the legal academy.
Last week’s New Yorker offers the true tale behind Lawrence v. Texas, the watershed Supreme Court case that made unconstitutional any state law targeting morality in the bedroom, and therefore inaugurated the modern gay rights movement. Per Dahlia Lithwick, and her reviewed author Dale Carpenter, the real John Geddes Lawrence was anything but the poster child for romantic gay love, but — given the healthy distance appellate lawyers prefer to place between themselves and “jury facts,” irrelevant on appeal — that didn’t matter so much.
In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.
Interestingly, the sordid nature of Lawrence’s backstory was essentially compelled by the jurisdictional requirements of the case. Basically, to present the best argument for ultimate Supreme Court review, the plaintiff has to plead no contest to the state’s case, and challenge only the constitutionality of the statute. So, activist lawyers needed a plaintiff who wouldn’t mind a criminal conviction on their record, which is to say, one without a family and a reputation. Advocates weren’t stuck with a less-than-ideal plaintiff; they were going to have to take a less-than-ideal plaintiff and dress them up. Lawrence just happened to fit the bill.
More to the point, both authors frame the argument in Lawrence v. Texas less as one about the law — truly, the law was already quite settled by that point, which contributed to making the case a blowout 6-3 decision — than about the Justice’s sensibilities, and their perception of prevailing social attitudes on sex. Among the factors that changed between Bowers v. Hardwick (the ’90s case that permitted states to criminalize gay sex) and Lawrence was, the Justices now had gay friends, gay clerks, and lived in a legal world where elite players are, regularly and openly, gay.
This invites a broader question: the extent to which social change depends on the Justices’ collective sensitivity to Das Leben der Anderen — the lives, and problems, of others. If that’s the deciding factor in a close case, or if legal conclusions ever follow moral ones at the high court, the social culture of legal elites and the academy isn’t what matters: it’s how that culture is transmitted to the Court, mediated by the barely permeable membrane with which the Justices surround themselves.
By this theory, persuadable judges can be persuaded by contact with life experiences suggesting that legal problems are social problems that actually matter to the outside world. The advocate should do everything possible to ground his case in a believable life story, relatable and meaningful outside of some niche culture. The Justices could safely ignore gay rights so long as they believed (however erroneously) that they’d never met a gay person, or had a gay clerk; but by 2006 they no longer could, given the size of the proudly gay bar. All together, this suggests an advocacy style that emphasizes the client’s story, or at least those parts that resonate with the legal problem (dissonant chords may be safely ignored). Call it a variant of one of the central theses of Critical Race Theory (yes, we’re back there) — narrative matters, but manipulated narrative matters most.
Of course, not every judge will be persuadable. One of Justice Thomas’ favorite clerks, as reported by Jeff Toobin, is herself lesbian. The Justice regularly sent her holiday cards, and even a wedding gift. But despite his affection for gay men and women, and presumably their problems, Justice Thomas is not a gettable vote on gay marriage. But when it comes time to replace Thomas, progressives should first look for a Justice whose life experience will help to ground the Court’s decisions in reality. Using this rubric, Bartlet’s decision to nominate Justice Mendoza looks especially brilliant, not because of Mendoza’s legal philosophy, but because as a former line cop, he could understand stories about the real world, and relate them to his colleagues to persuade them to vote accordingly. Obama’s pick of Sonia Sotomayor looks equally brilliant, precisely for her power to empathize, as does his decision to follow her and guarantee a second female seat on the bench to balance out the seven men.
This approach also has the virtue of acknowledging the Court’s greatest strength, and its greatest weakness — its humanity.
Oh, and, I’ve decided to use this platform partially to promote new, good music! So today’s song is “Avenue of Criminals,” by local band The Canon Logic.