When I agreed to return to UConn Law to teach a first-year course on legal analysis and writing a few months ago I had no idea how my semester would collide with the Kavanaugh nomination. When I planned my semester, one of my first tasks was to find a case to use for the first class or two to illustrate the role of courts in shaping both law and society.
We always used fun cases for these classes, such as when the real George Costanza sued Jerry Seinfeld for ruining his life. (181 Misc.2d 562, 693 N.Y.S.2d 897 (1999).) (Seinfeld won.) I had no idea that Kennedy was going to retire at that point, but the Gorsuch nomination was fresh enough that I figured a stare decisis case might be a good way to link legal analysis with current events, and so I decided to use Lawrence v. Texas, the 2002 case overturning the Texas ban on homosexual sodomy, reversing 14-year-old SCOTUS authority from a case called Bowers v. Hardwick.
Lawrence is what we in the academy call a “rich” case. I’d love to teach a whole course about it. There’s a fascinating back story to the whole thing, including some found in an excellent book by a Michigan law professor who makes a convincing argument that Lawrence and Garner, the petitioners who had been arrested for allegedly committing a homosexual act, were guilty of nothing more than being gay. As I told my class, you could use the case to teach about criminal law, criminal procedure, constitutional law, trial law, appellate law, SCOTUS practice and procedure, public interest litigation, legal strategy, civil rights, gay rights, search and seizure, the 14th Amendment, the Reconstruction Amendments, constitutional law, legal ethics and much more in addition to stare decisis.
I was declaiming some of this to a bunch of gay men when I mentioned that one of the arresting officers had commented that Lawrence’s apartment, where the arrest occurred, “stunk of gay.” One of my friends asked what gay stink smelled like. One of the others, with a straight face and without missing a beat, answered “potpourri.”
Anyhow, Lawrence is an excellent tool to introduce stare decisis. Between selecting it and preparing my notes for the first class however, Anthony Kennedy resigned, Brett Kavanaugh was nominated, and SCOTUS decided Janus v. AFSCME, reversing 41-year-old authority concerning the ability of public-sector unions to charge dues to non-member employees. Golly, talk about relevant!
The semester is off and running now, and we’ve had fun discussions about how law is made and shaped and the interplay between values and intellectual honesty in judging may shape outcomes. I told my class a story Guido Calabresi tells about his time clerking at SCOTUS when one of the lions of the court (it might have been Brennan) managed to flip the entire court from an 8-1 position one way to adopt his argument that the case should be decided exactly the opposite way.
During the discussions, though he managed to switch most of his colleagues to his position, he also listened to their arguments, and eventually decided that they had been right in the first place. Ultimately, he dissented from the final decision, adopting the original analysis as his own. It’s an excellent example of how honesty and humility can trump hubris if folks truly embrace the process of learning and understanding the law rather than voting their preferences or those of their constituents. Though I haven’t studied the case closely enough, I suspect that this type of reasoning might have swayed Roberts to vote to uphold Obamacare when just about everyone had him in the overturning column.
I just read that 300+ law professors signed a letter to Senators Murkowski and Collins urging them to vote against Kavanaugh on the grounds that he’d be the end of Roe v Wade. While nobody asked me, I probably wouldn’t have signed it. I doubt that any other Trump nominee would be any different. Though the Kabuki play of hearings will yield no shortage of fodder for us writers and talking heads, I’m pretty sure Kavanaugh’s already bought his new Supreme Court robe, assuming he doesn’t just use the one he’s worn at the D.C. Circuit for years.
SCOTUS seems to have the funny ability to prompt unpredictable results from folks that everyone thought would be ideologues when they were appointed. We have to hope that the institution will work its magic on Kavanaugh.
Former Connecticut Chief Disciplinary Counsel Mark Dubois is with Geraghty & Bonnano in New London.