Two Phone Calls

By Sunstein, Cass R. | Constitutional Commentary, Winter 1999 | Go to article overview

Two Phone Calls


Sunstein, Cass R., Constitutional Commentary


June 16, 2036

Dearest Helen:

Here you are, about to graduate from law school, and your old grandfather is awfully proud of you. I remember the day you were born--yes, yes, as if it were yesterday, it's true. And I remember the first day--were you six?--that you held a tennis racquet in that strong right hand. From the determined expression on your face, I had a hunch that you might be a lawyer. I can't tell you how thrilled I am, and how proud I am, that you're graduating.

I haven't gotten you a proper present. But I do have something for you--a story, an old one, and one that I haven't told anyone before. In just two weeks, after all, it's going to be the 50th anniversary of Bowers v. Hardwick, and there's going to be a big celebration, and I don't think my old boss Lewis Powell (younger then than I am now!) would mind.

Janet and I, and the others, have kept it secret for all these years, and I must tell you that I'm pleased about that. But it's time, I think.

It was a warm spring morning when Justice Powell called me into his office. "This is a hard case for me," he said, "because I've never met a homosexual." Of course I was stunned-how could he possibly think that?--but at first I kept my silence, even though several of Justice Powell's own law clerks had been gay. I really wasn't sure what to do. But that afternoon I talked to my co-clerk Janet, and after a lot of soul-searching and a good, long, hard talk, we decided that the Justice (that's what we called him) could not be asked to decide this case without knowing a little more.

So we took a big risk. We called two of his gay clerks and asked if we could tell the Justice that he had indeed met a homosexual, or two, or more.

Please don't be shocked that we did this, Helen. Maybe it wasn't exactly ethical, but we didn't tell our predecessors anything about the Hardwick case, or anything about our discussions with Justice Powell about the legal issues involved. We disclosed no inside information. We were just asking whether the closet might be opened a little bit. (You might not know what that means. The "closet" is the term that was used to mean where gay people stayed, when they kept secret the fact that they were gay. This must seem mysterious to you, I know.) We wanted the Justice to know a bit more than he did. We actually thought that it was relevant.

Anyway we got their permission, and the next morning, at 10 am, we went into the Justice's office and said, in brief, "We think you ought to know that you have met a homosexual, or two, or more. In fact some of your own clerks have been homosexuals." And then we named two of them. Well, the Justice was stunned. For a while he was silent. Then he said, very slowly, "Why didn't I know?" And then, a little angrily: "Why didn't they tell me?" And then, with some grief, and quietly: "Oh my." And then, very firmly: "I need to be alone now."

I never knew what happened next. But I know that Justice Powell stayed in his office, alone, for nearly three hours. We were all told that he was "not to be disturbed." I believe that he did a lot of thinking. I also suspect--though I'm not sure--that he called the two clerks we mentioned.

As you know, Justice Powell was a crucial vote in Bowers v. Hardwick, striking down that Georgia sodomy statute. What you don't know is the firmness with which he stood by his vote, in the face of frequent, and sometimes severe, entreaties from his conservative colleagues. But everyone respected Lewis Powell. And I think that those famous passages about discrimination and secrecy in Justice Blackmun's majority opinion had a lot to do with Justice Powell's thinking about the case. And my private hunch is that Justice O'Connor would have voted with Justice White if not for Justice Powell's private eloquence, and intense feelings, about the rights involved. …

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