Spanning Ideological Chasms: The Response to Conceptual Segregation in "Bowers v. Hardwick.".

I On July 13, 1986, the United States Supreme Court released a 5-4 decision in the case of Bowers v. Hardwick in favor of the state of Georgia, rejecting Michael Hardwick's claim that the state law prohibiting consensual sodomy violated the constitutional right to privacy that had overturned similar state laws against contraception, abortion, and interracial marriage. From the beginning, the decision departed from standard Court practice. Justice Powell initially voted to overturn the law, resulting in a 5-4 decision for Hardwick, but then changed his vote and affirmed the law's permissibility (Taylor, 1993). At the decision's announcement, Justice White, author of the majority opinion, and Justice Blackmun, author of an angry dissent, both took the unusual steps of reading portions of their opinions aloud from the bench (Taylor, 1986). While conservative religious groups applauded the ruling, an editorial in the New York Times called it "unreal, frightening, and an unimaginable reversal of our previous impression of the judiciary as a protector of individual freedom against parochial intolerance" (Smith, 1986). Eight years later, Bowers v. Hardwick has yet to fade into the law books. At the time of the decision, many observers warned that it signalled the beginning of the end for judicial protection of the right to privacy, the right to make decisions that concerned intimate relationships and procreation, without government interference (Marcus, 1986). Four years later, a study by the Alliance for Justice cited one hundred references to Bowers in state and federal court decisions which curtailed the right to privacy (Greenhouse, 1990). Bowers continues to play a significant role in shaping American jurisprudence. One constitutional law professor referred to the justices' framing of the issues as "a methodological dispute which is of great importance, indeed as important as the outcome of the case itself" (Agneshwar, 1990, p. 3). Another legal commentator elaborated: Legal arguments, method, or analogical reasoning may mean little to the committed, both on the left and on the right of the legal-political spectrum. But Justice Powell's change of mind is credible evidence that, for less doctrinaire jurists, cogent legal argumentation and sound analogical reasoning are indeed "outcome determinative." For this reason, it is now important to reread Bowers v. Hardwick; and to analyze closely the legal method and arguments of the majority, concurring and dissenting opinions. (Wishingrad, 1990, p. 2) II Ross (1991) has suggested that each person who reads an opinion authored by a Supreme Court justice assumes the responsibility of critic: After reading the opinion, no morally neutral position is available to us. If we speak about the case, we take on the role and responsibility of the critic. The discourse of the critic is the discourse of normative analysis. In one way or another, we speak of what ought to be. Our membership within the community of law makes even silence a morally charged position. Several authors have written that the Court's authority stems from the cogency of reasons and arguments that bolster its decisions and are explained in its opinions (Chemerinsky, 1987; Smith, 1991; Wardle, 1980). Alternatively, Choper (1980) argues that the mystique of the Supreme Court, the pomp and ceremony surrounding its operations, serves to create awe in the minds of its audience, which in turn serves as the basis of the Court's legitimacy. Zeppos (1991) draws upon this idea to explain the Court's delicate, and occasionally impenetrable, treatment of controversial issues. According to Zeppos, the Court's majority opinions are intended not to reflect accurately the Court's reasoning in rendering a decision, but rather to bolster the decision, to address the sources of controversy and attempt to quell them before an outcry can be raised. This preemptive strategy builds a degree of dishonesty into the system: The point of formalist reasoning is to legitimate judicial power by not disturbing the complacency held by most people. …