Sexual Injustice: Supreme Court Decisions from Griswold to Roe

By Marc Stein | Go to book overview

6 :
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

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Sexual Injustice: Supreme Court Decisions from Griswold to Roe
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • Introduction 1
  • Part 1 - Decisions and Doctrines 25
  • 1 - Liberalization’s Limits from Griswold to Roe 27
  • 2 - Consistent Conservatism in Boutilier 57
  • Part 2 - Activists and Advocates 95
  • 3 - Liberalization’s Lawyers 97
  • 4 - Boutilier’s Defenders 133
  • 5 - Boutilier’s Defense 171
  • Part 3 - Readings and Readers 205
  • 6 - Remembering Griswold to Roe 207
  • 7 - Forgetting Boutilier 243
  • Epilogue 279
  • Notes 303
  • Acknowledgments 345
  • Index 349
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