Remembering Griswold to Roe
The Supreme Court’s heteronormative rulings had multiple authors, including the justices, their clerks, and the advocates who influenced the decisions. Paradoxically, readers of the Court’s opinions also authored them. Like the Constitution itself, the Court’s decisions only acquired meaning through interpretive reading processes. The justices could not fully control the ways in which their rulings would be read, especially when they used ambiguous language or inconsistent reasoning. Readers of the opinions became agents of change as they interpreted the Court’s rulings in distinctive ways. Among the most influential readers of these decisions were journalists, judges, and scholars. Their comments about Griswold, Fanny Hill, Loving, Eisenstadt, and Roe can be examined as examples and vehicles of public reception, revealing how the rulings were interpreted by those who read them and how others were encouraged to interpret rulings they did not necessarily read for themselves.
Readers of the Court’s opinions also authored them insofar as the justices were influenced by readings of their rulings. In a sense, this is what happened when pornographers tested the limits of the Court’s obscenity rulings, when birth control and abortion advocates tested the limits of privacy rulings, and when interracial couples tested the limits of rulings on racial equality. Having read the relevant rulings or having hired lawyers who had done so, these readers authorized litigation involving the work of multiple authors and authorities. In addition, the justices paid attention to the work of journalists, judges, and scholars who read their rulings. At times, when the justices believed their words were being misread, they incorporated corrections and clarifications into later opinions. They also disagreed with one another about how to read their precedents, and these disagreements shaped the writing of subsequent opinions.
The justices in this period were quite concerned about how their rulings were being read. In 1973, for instance, after Warren Burger persuaded a majority of the justices to endorse more conservative obscenity tests, a Virginia county prosecutor announced that he would take action against newsstands that sold Playboy. Burger quickly distributed a memorandum to the other jus