By Christopher B. Daly
Fascinating story in today’s NYTimes about the hidden history of gay clerks in the U.S. Supreme Court. No surprise: there were gay clerks in the high court’s chambers, drafting opinions, and spending a lot of time with the justices for years before any of them were out of the closet.
Ho-hum. This cannot come as that big a shock to anyone, although the details are certainly interesting.
What I found so interesting was how oblivious some of the justices were (or appeared to have been) until just how recently. A focus of the article is Justice Lewis Powell, who joined the 5-4 majority in a 1986 decision that upheld a Georgia law making sodomy a crime.
The Times observes:
Within just a few years, the climate for gay rights began to change. Justice Powell himself, in 1990, expressed reservations about his vote in the Hardwick case. “I think I probably made a mistake in that one,” he said at New York University’s law school.
Sure enough, the holding in Hardwick was reversed 180 degrees in 2003 in Lawrence v. Texas. So, in that instance, it took just 17 years for the Supreme Court to reverse itself on a 5-4 ruling that was wrong.
Justice Lewis Powell: wrong on sodomy, wrong on sources.
That is precisely the result I am holding out for in my recent posts about the 1972 Branzburg case and the idea of a federal “shield law” for journalists. In Branzburg, one of the five justices who made up the wrong-headed majority was none other than. . . Lewis Powell.
The take-away: the Supreme Court makes mistakes and sometimes corrects them later.
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