In any event, the latest story from Joan Biskupic and Devan Cole includes a few worthwhile revelations about Lawrence v. Texas.
First, believe it or not, Justice Kennedy’s draft opinion had even more cringeworthy rhetoric. And the Court’s progressives objected!
Kennedy also withdrew language that some of his colleagues regarded as awkward or out of place, such as, “The sexual instinct is of endless fascination for the human. Its beauty and power are best respected when the individual has substantial freedom to explore it to attain a better understanding of the concept of self and the place he or she has in a larger universe.”
His final opinion, instead, said in that section, “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
Justice Scalia, preach:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
And to paraphrase Scalia and Bismarck, “no one should see how sausages or Kennedy opinions are made.”
Second, at conference, Justice Breyer only wanted to grant cert if there were five votes to reverse Bowers: