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Article Excerpt
TABLE OF CONTENTS
I. WHY BROWN AND LAWRENCE WERE HARD CASES II. COURT AS VANGUARD OR LAGGARD? III. JUDICIAL STRATEGIZING--EVADING THE MARRIAGE ISSUE IV. CONSEQUENCES A. Brown's Backlash B. The Backlash Against Same-Sex Marriage C. Why Backlash? V. THE FUTURE VI. CONCLUSION: THE COURT'S LEGITIMACY
One year shy of the fiftieth anniversary of Brown v. Board of Education, (1) the Justices issued another equality ruling that is likely to become a historical landmark. (2) In Lawrence v. Texas, (3) the Court invalidated a state law that criminalized same-sex sodomy. This article contrasts these historic rulings along several dimensions, with the aim of shedding light on how Supreme Court Justices decide cases and how Court decisions influence social reform movements.
Part I juxtaposes Brown and Lawrence to illustrate how judicial decisionmaking often involves an uneasy reconciliation of traditional legal sources with broader social and political mores and the personal values of the judges. Part II considers what these landmark decisions teach us about the relationship between Supreme Court decisions and movements for social reform. Part III examines the light these rulings shed on the strategic aspect of judicial decisionmaking: how courts sometimes temper their decisions in light of political constraints. Part IV considers the consequences of Brown and Lawrence (and Goodridge v. Department of Public Health (4)) and, especially, the political backlashes they ignited. Part V analyzes the rulings from the perspective of Supreme Court Justices attempting to predict the future. A brief conclusion speculates as to what such decisions--and history's verdict upon them--teach us about the source of the Supreme Court's legitimacy.
I. WHY BROWN AND LAWRENCE WERE HARD CASES
Legal scholars and political scientists have long debated how to understand judicial decisionmaking. (5) One school, that of the "formalists," argues that judges decide cases by interpreting legal sources, such as texts (statutes and constitutions), the original understanding of such documents, and legal precedents. According to an extreme version of this view, judges engaged in constitutional adjudication "lay the article of the Constitution which is invoked beside the statute which is challenged and ... decide whether the latter squares with the former." (6) In its more moderate (and more plausible) form, formalism holds that judicial decisionmaking is significantly constrained by legal sources such as text, original understanding, and precedent, even though some room for judicial discretion remains. (7) A competing school, that of the "realists" or the "attitudinalists," argues that judicial interpretation mainly reflects the personal values of judges. (8) In its crudest form, this perspective explains judicial decisionmaking as a reflection of what the judge ate for breakfast. (9) In its subtler (and more plausible) form, this view is encapsulated in a famous statement by Justice Oliver Wendell Holmes: "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." (10) Brown and Lawrence demonstrate the extent to which judicial decisionmaking is influenced by nonlegal factors. (11)
Most people today would be surprised to learn that Brown was a hard case for the Justices: If state-mandated segregation in public schools is not unconstitutional, what is? That the ruling in Brown was unanimous, moreover, suggests that the Justices found the case to be easy. Yet appearances can be deceptive. In fact, the Justices were at first deeply divided on how to resolve Brown. (12)
In a memorandum to the files that he dictated the day Brown was decided, Justice William O. Douglas observed that a vote taken after the case was first argued in December 1952 would have been "five to four in favor of the constitutionality of segregation in the public schools." (13) Justice Felix Frankfurter's head count was only slightly different: He reported that a vote taken at that time would have been five to four to invalidate segregation, with the majority writing several opinions. (14)
Brown was difficult for many of the Justices because it posed a conflict between their legal views and their personal values. The sources of constitutional interpretation to which they ordinarily looked for guidance--text, original understanding, precedent, and custom--indicated that school segregation was permissible. By contrast, most of the Justices privately condemned segregation, which Justice Hugo Black called "Hitler's creed." (15) Their quandary was how to reconcile their legal and moral views.
Frankfurter's preferred approach to adjudication required that he separate his personal views from the law. He preached that judges must decide cases based upon "the compulsions of governing legal principles," (16) not "the idiosyncrasies of a merely personal judgment." (17) In a memorandum he wrote in conjunction with the first flag-salute case in 1940, (18) Frankfurter noted that "[n]o duty of judges is more important nor more difficult to discharge than that of guarding against reading their personal and debatable opinions into the [c]ase." (19)
That Frankfurter abhorred racial segregation cannot be doubted; his personal behavior clearly demonstrated his egalitarian commitments. In the 1930s he had served on the legal committee of the National Association for the Advancement of Colored People ("NAACP"), and in 1948 he had hired the Court's first black law clerk, William Coleman, Jr. (20) Nonetheless, he insisted that his personal views were of limited relevance to the legal question of whether segregation was constitutional: "However passionately any of us may hold egalitarian views, however fiercely any of us may believe that such a policy of segregation ... is both unjust and shortsighted.... [h]e travels outside his judicial authority if for this private reason alone, he declares [it] unconstitutional." (21) The Court could invalidate segregation, Frankfurter believed, only if it was legally as well as morally objectionable.
Yet Frankfurter had difficulty finding a compelling legal argument for striking down segregation. His law clerk, Alexander Bickel, spent a summer reading the legislative history of the Fourteenth Amendment, and he reported to Frankfurter that it was "impossible" to conclude that its supporters had intended or even foreseen the abolition of school segregation. (22) To be sure, Frankfurter believed that the meaning of constitutional concepts can change over time, (23) but as he and his colleagues deliberated, public schools in twenty-one states and the District of Columbia were still segregated. He could thus hardly maintain that evolving social standards condemned the practice. Furthermore, judicial precedent, which Frankfurter called "the most influential factor in giving a society coherence and continuity," (24) strongly supported it. Of forty-four challenges to school segregation adjudicated by state appellate and federal courts between 1865 and 1935, not one had succeeded. (25) Indeed, on the basis of legislative history and precedent, Frankfurter had to concede that "Plessy is right." (26)
Brown presented a similar dilemma for Justice Robert H. Jackson, who also found segregation anathema. In a 1950 letter, Jackson, who had left the Court during the 1945-1946 term to prosecute Nazis at Nuremberg, wrote to a friend: "You and I have seen the terrible consequences of racial hatred in Germany. We can have no sympathy with racial conceits which underlie segregation policies." (27) Yet, like Frankfurter, Jackson thought that judges were obliged to separate their personal views from the law, and he was loath to overrule precedent. (28)
Jackson revealed his internal struggles in a draft concurring opinion that began: "Decision of these cases would be simple if our personal opinion that school segregation is morally, economically or politically indefensible made it legally so." (29) But because Jackson believed that judges must subordinate their personal preferences to the law, this consideration was irrelevant. When he turned to the question of whether existing law condemned segregation, he had difficulty answering in the affirmative:
Layman as well as lawyer must query how it is that the Constitution this morning forbids what for three-quarters of a century it has tolerated or approved. ... Convenient as it would be to reach an opposite conclusion, I simply cannot find in the conventional material of constitutional interpretation any justification for saying that in maintaining segregated schools any state or the District of Columbia can be judicially decreed, up to the date of this decision, to have violated the Fourteenth Amendment. (30)
That the nine Justices who initially considered Brown would be uneasy about invalidating segregation is unsurprising. All of them had been appointed by Presidents Franklin D. Roosevelt and Harry S. Truman on the assumption that they supported, as Jackson put it, "the doctrine on which the Roosevelt fight against the old court was based--in part, that it had expanded the Fourteenth Amendment to take an unjustified judicial control over social and economic affairs." (31) For most of their professional lives, these men had criticized untethered judicial activism as undemocratic--the invalidation of the popular will by unelected officeholders who were inscribing their social and economic biases onto the Constitution. This is how all nine of them understood the Lochner (32) era, when the Court had invalidated protective labor legislation on a thin constitutional basis. The question in Brown, as Jackson's law clerk William H. Rehnquist noted, was whether invalidating school segregation would eliminate any distinction between this Court and its predecessor, except for "the kinds of litigants it favors and the kinds of special claims it protects." (33)
Thus, several Justices wondered whether the Court was the right institution to forbid segregation. Several expressed views similar to Vinson's: If segregation was to be condemned, "it would be better if [Congress] would act." (34) Jackson cautioned that "[h]owever desirable it may be to abolish educational segregation, we cannot, with a proper sense of responsibility, ignore the question whether the use of the judicial office to initiate law reforms that cannot get enough national public support to put them through Congress, is our own constitutional function." (35) If the Court had to decide the question, Jackson lamented, "then representative government ha[d] failed." (36)
Until the current Justices' conference notes and memoranda are made public, one cannot be certain as to what internal conflicts they may have experienced in Lawrence. (37) Still, it is likely that at least some of the Justices in the majority found Lawrence hard--and for pretty much the same reasons that several Justices were conflicted over Brown.
Lawrence, like Brown, required the Justices to overturn a precedent--Bowers v. Hardwick (38)--and a fairly recent one at that. Three of the six Justices who voted to invalidate the Texas same-sex sodomy statute--Sandra Day O'Connor, Anthony Kennedy, and David Souter--had co-authored the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, (39) which stressed the importance of precedent to the rule of law: "Liberty finds no refuge in a jurisprudence of doubt." (40) As Justice Antonin Scalia pointed out in his Lawrence dissent, the treatments of precedent in Casey and Lawrence are--to put it mildly--in some tension with one another. (41)
Moreover, Lawrence, like Brown, adopts an interpretation of the Fourteenth Amendment that significantly departs from its original understanding. The thirty-ninth Congress was no more committed to protecting gay rights than it was to barring school segregation. (42)
Further, because Justices Kennedy and O'Connor generally disfavor identifying new fundamental rights or suspect classes, (43) both of their opinions in Lawrence rule the Texas statute deficient without applying a heightened standard of review. (44) Yet invalidating the law under minimum rationality review is difficult to justify, given the extreme deference the Court has traditionally shown when applying that standard. (45) Until 1961 every state in the nation had a law forbidding same-sex sodomy. (46) It strains credulity to suggest that all those states were acting irrationally. (47)
Finally, Kennedy and O'Connor reveal discomfort with the stated rationales underlying their opinions by insisting on limiting their reach by fiat. Kennedy insists that the liberty protected by the Due Process Clause "presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." (48) O'Connor both portrays the Texas statute as motivated by simple animus or hatred and rejects "moral disapproval" as a legitimate government purpose. (49) Yet both Justices caution that other laws disadvantaging gays and lesbians--for example, bans on same-sex marriage--would not necessarily be susceptible to those objections. (50) They offer no convincing bases for drawing such a distinction, however, and Scalia powerfully charges in dissent that "only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court" can such a distinction be maintained. (51)
One cannot know for sure, but Lawrence probably presented the same conflict between law and personal values for Justices Kennedy and O'Connor that Brown did for Justices Frankfurter and Jackson. (52) Kennedy and O'Connor were likely offended by the criminal prosecution of private, consensual, adult sexual activity; even Justice Thomas, who dissented, thought the statute "uncommonly silly." (53) Yet, Kennedy's and O'Connor's favored approaches to constitutional interpretation revealed no obvious legal flaws in the Texas statute.
That the opinions in Brown and Lawrence rely partially on unconventional legal sources supports the notion that some of the Justices found the cases difficult. Brown's famous footnote 11 invoked social science evidence to show that racial segregation in grade school education generated feelings of inferiority among blacks. The use of such evidence in a Supreme Court opinion was virtually unprecedented, the particular evidence invoked was deeply flawed, and the left-wing political credentials of some of the academic experts cited invited criticism from McCarthyites. (54) Justice Jackson himself disparaged the NAACP's brief, which he said "starts and ends with sociology." (55) Judge George Bell Timmerman of South Carolina, alluding to footnote 11, insisted that "[t]he judicial power of the United States ... does not extend to the enforcement of Marxist socialism as interpreted by Myrdal, the Swedish Socialist." (56) Why Chief Justice Earl Warren chose to insert the controversial social science evidence into the footnote is unclear, (57) but the NAACP probably relied on it in the litigation partly because the conventional sources of constitutional interpretation were so unsupportive of the challenge to school segregation. (58)
Similarly in Lawrence, the majority opinion relies partly on an unorthodox source for interpreting the U.S. Constitution: a decision by the European Court of Human Rights. (59) For the Justices to invoke a ruling from a foreign court as authority for their interpretation of the U.S. Constitution is virtually unprecedented. As Justice Scalia pointed out in his Lawrence dis. sent, it is also highly controversial. (60) Perhaps one can attribute such a reference to the effects of globalization; these days, the Justices spend more time in other countries and interact more with foreign judges. Alternatively, the invocation of a precedent from the European court may reflect the Justices' concern in Lawrence that the conventional sources of U.S. constitutional law did not adequately support the result.
II. COURT AS VANGUARD OR LAGGARD?
Scholars and judges have long disagreed about the extent to which the Supreme Court acts as a countermajoritarian force in U.S. society. Justice Black once stated the conventional wisdom in particularly ringing terms: Courts stand "as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are the nonconforming victims of prejudice and public excitement." (61) In his famous concurring opinion in Whitney v. California, (62) Justice Louis Brandeis similarly opined that one function of judicial review is to protect against "the occasional tyrannies of governing majorities." (63) Like-minded scholars have written that without judicial review "there would be little hope for fights or for equality," (64) that courts "restrain the majority's worst excesses," (65) and that judicial review "advances the cause of peaceful change" by preventing the "[o]ppression of individuals and minorities" that might encourage resort to the fight of revolution. (66)
By contrast, other scholars have denied that the Court has either the inclination or the capacity to play this role of "countermajoritarian hero." (67) In a classic article, the political scientist Robert Dahl observed that, given any reasonable set of assumptions about the nature of the political process, "it would appear to be somewhat naive to assume that the Supreme Court either would or could play the role of Galahad." (68) Law professor Barry Friedman likewise denies the existence of any significant countermajoritarian function, contending instead that judicial review should be seen as part of a "dialogue" between the judicial and legislative branches. (69) Brown and Lawrence shed light on how countermajoritarian the Court's rulings generally are.
As we have seen, in 1954 the law--as understood by most of the Justices--was reasonably clear: segregation was constitutional. For the Justices to reject a result so clearly indicated by the conventional legal sources suggests that they had very strong personal preferences to the contrary. (70) And so they did. Although the Court had unanimously and casually endorsed public school segregation as recently as 1927, (71) by the early 1950s, the views of most of the Justices reflected the dramatic popular changes in racial attitudes and practices that had resulted from World War II. (72) The ideology of the war was antifascist and prodemocratic, and the contribution of African American soldiers was undeniable. Upon their return to the South, thousands of black veterans tried to vote, many expressing the view of one such veteran that "after having been overseas fighting for democracy, I thought that when we got back here we should enjoy a little of it." (73) Thousands more joined the NAACP, and many became civil rights litigants. Others helped launch a postwar social movement for racial justice.
Other developments in the 1940s also fueled African American progress. Over the course of the decade, more than one and a half million southern blacks, pushed by changes in southern agriculture and pulled by wartime industrial demand, migrated to northern cities. This mass relocation--from a region in which blacks were almost universally disfranchised to one in which they could vote nearly without restriction--greatly enhanced their political power; indeed, they became a key swing constituency in the North. Other blacks migrated from farms to cities within the South, facilitating the creation of a black middle class that had the inclination, capacity, and opportunity to engage in organized social protest.
The onset of the Cold War in the late 1940s created another impetus for racial reform. In the ideological contest with communism, American democracy was on trial, and southern white supremacy was its greatest vulnerability. The Justice Department's brief in Brown, which urged the Court to invalidate school segregation, emphasized that "[r]acial discrimination furnishes grist for the Communist propaganda mills." (74) After Brown, supporters of the decision boasted that the United States' leadership of the free world "now rests on a firmer basis" and that American democracy had been "vindicat[ed] ... in the eyes of the world." (75)
By the early 1950s such forces had produced concrete racial reforms. In 1947, Jackie Robinson desegregated major league baseball. In 1948, President Truman issued executive orders desegregating the federal military and civil service. Dramatic changes in racial practices were occurring even in the South. Black voter registration there increased from three percent in 1940 to twenty percent in 1952. (76) Dozens of urban police forces in the South, including some in Mississippi, hired their first black officers. Minor league baseball teams, even in such places as Montgomery and Birmingham, Alabama, signed their first black players. Most southern states peacefully desegregated their graduate and professional schools under court order. Blacks began serving again on southern juries. In many southern states, the first blacks since Reconstruction were elected to urban political offices, and the walls of segregation were occasionally breached in public facilities and accommodations.
As they deliberated over Brown, the Justices expressed astonishment at the extent of the recent changes. Sherman Minton detected "a different world today" with regard to race. (77) Frankfurter noted "the great changes in the relations between white and colored people since the first World War" and remarked that "the pace of progress has surprised even those most eager in its promotion." (78) Jackson may have gone furthest, citing black advancement as a constitutional justification for eliminating segregation. In his draft opinion he wrote that segregation "has outlived whatever justification it may have had.... Negro progress under segregation has been spectacular and, tested by the pace of history, his rise is one of the swiftest and most dramatic advances in the annals of man." (79) Blacks had thus overcome the presumptions on which segregation was based.
It was these sorts of changes--political, social, demographic, and ideological--that made Brown possible. Frankfurter later conceded that he would have voted to uphold public school segregation in the 1940s because "public opinion had not then crystallized against it." (80) The Justices in Brown did not think that they were creating a movement for racial reform; they understood that they were working with, not against, historical forces. By the time the Court struck down school segregation, polls revealed that a narrow majority of Americans approved of the decision. (81)
Lawrence, like Brown, came in the wake of extraordinary changes in attitudes and practices regarding homosexuality. (82) In 1986, Chief Justice Warren Burger in his concurring opinion in Bowers recited Blackstone's condemnation of homosexuality as an offense of "deeper malignity" than rape. (83) In the seventeen years between Bowers and Lawrence, public opinion went from opposing the legalization of homosexual relations by fifty-five percent to thirty-three percent to supporting legalization by sixty percent to thirty-five percent. (84) Many states, either through legislative or judicial action, nullified laws criminalizing same-sex sodomy. (85) Several states and scores of cities added protection for sexual orientation to their antidiscrimination laws. (86) Nearly two hundred Fortune 500 companies extended job-related benefits to gay partners, (87) as did several states and scores of municipalities for their public employees. (88) The Hawaii Supreme Court invalidated a ban on same-sex marriage, (89) and the Vermont Supreme Court ruled that same-sex couples must at least be permitted to form "civil unions." (90) In the 1990s, hundreds of openly gay men and women were elected to public offices, and gays and lesbians entered mainstream culture on television, film, and music; in 1998, an openly gay man won a Pulitzer Prize for the first time. (91) In 2003 the Episcopalian Church ordained its first openly gay bishop. (92)
Both Brown and Lawrence reflected, at least as much as they produced, changes in social attitudes and practices. This is not to suggest that the Court is a perfect mirror of society. Indeed, the Justices share certain characteristics that set them apart from average Americans: they are older, better-educated, and more affluent. (93) On some public policy disputes that become constitutional issues, these characteristics correlate with certain views. For example, better-educated, relatively affluent people are much more likely to favor abortion rights and to oppose school prayer than are average Americans. (94)
Occasionally, the culturally elite values of the Justices make them more receptive than the general population to social reform. In 1954, opinion polls showed that nearly half of all Americans supported racial segregation in public schools, whereas college graduates condemned that practice by nearly three to one. (95) Reflecting the values of the cultural elite, the Justices in Brown unanimously condemned public school segregation.
Today, attitudes toward homosexuality strongly correlate with socioeconomic status: better-educated, affluent people are generally much more supportive of gay rights than are average Americans. For example, one poll taken in 1999 found that seventy-four percent of respondents with postgraduate education would vote for a well-qualified homosexual for president but only forty-six percent of high school dropouts would do so. (96) Yet, on gay-rights issues, another of the Justices' systemic biases has a partially offsetting effect: attitudes toward homosexuality also strongly correlate with age: older people are generally much less tolerant than are younger people. For example, one recent opinion poll shows that respondents aged eighteen to twenty-nine favor legalization of "homosexual relations" by fifty-eight percent to thirty-nine percent, while those aged sixty-five and over oppose legalization by sixty-one percent to twenty-four percent. (97) On gay rights, then, one might have predicted that the Court would be less far in advance of public opinion than it had been on race. This, in fact, has almost surely been the case. The Justices' age bias may help explain why Bowers v. Hardwick was decided as it was and why the Court took so long to overrule it.
The main point, though, is that neither Brown nor Lawrence created a new movement for social reform; both decisions supported movements that had already acquired significant momentum by the time their grievances had reached the Supreme Court. To be sure, Brown occurred earlier in the course of the civil rights movement than Lawrence did in the course of the gay-rights movement. (98) Opinion polls showed only a slender national majority supporting Brown in 1954, whereas by 2003 it was hard to find anyone supporting criminal prosecution for private, consensual, adult same-sex relations. (99) But neither ruling was at the vanguard of a social reform movement, as was the California Supreme Court decision in 1948 striking down a ban on interracial marriage (100) or the Massachusetts Supreme Court decision in 2003 striking down a ban on same-sex marriage. (101) The U.S. Supreme Court rarely, if ever, plays such an adventurous role. (102)
III. JUDICIAL STRATEGIZING--EVADING THE MARRIAGE ISSUE
Scholars have written a good deal about the strategic element of judicial decisionmaking--that is, the extent to which judges decide cases not simply on the basis of good-faith interpretations of the relevant legal sources but also on calculations regarding the political feasibility of implementing various rulings. Political scientists especially have described many such instances of judicial strategizing. (103) Legal scholars have been more inclined to debate the normative defensibility of such politically informed decision. making. (104) Both Brown and Lawrence illustrate this strategic aspect of judicial decisionmaking.
Both opinions were consciously written narrowly to avoid resolving the whole range of issues regarding classifications based on race and sexual orientation. Brown was decided as an education case. The Court emphasized that "education is perhaps the most important function of state and local governments" (105) and held only that "[s]eparate educational facilities are inherently unequal." (106) The Justices deliberately refrained from announcing a presumptive ban on all racial classifications. One principal reason they did so was to avoid calling into question the constitutionality of state laws barfing interracial marriage. (107)
Many southern whites had charged that the real goal of the NAACP's school desegregation campaign was "to open the bedroom doors of our white women to the Negro men" (108) and "to mongrelize the white race." (109) For the Justices to strike down antimiscegenation laws so soon after Brown might have appeared to validate such suspicions. Moreover, opinion polls in the 1950s revealed that over ninety percent of whites--even outside of the South---opposed interracial marriage. (110) During oral argument in one of the original school segregation cases, Justice Frankfurter had seemed relieved when counsel denied that barring school segregation would necessarily invalidate antimiscegenation laws. (111) Frankfurter later explained that one reason that Brown was written as it was--emphasizing the importance of public education rather than condemning all racial classifications--was to avoid the miscegenation issue. (112)
However, the Justices were quickly confronted with cases that seemed to require them to acknowledge that Brown's logic extended beyond the sphere of education. In 1955-1956 the Court faced challenges to state-mandated segregation of public beaches, golf courses, and local transportation. Because Brown had emphasized the importance of public education rather than questioning the validity of all racial classifications, invalidating segregation in these post-Brown cases seemed to require additional explanation. Yet the Justices provided none, instead issuing cursory per curiam opinions that merely cited Brown. (113) Those legal academics most committed to "reasoned elaboration" in judicial decisionmaking were virtually apoplectic. (114)
Yet even these post-Brown per curiams stopped short of invalidating antimiscegenation laws. The Justices had an opportunity to determine the constitutionality of such laws, but they refused to take it, even though avoiding it required them to act disingenuously. The case was Naim v. Naim. (115) There, a Chinese man and a white woman had tried to circumvent Virginia's ban on interracial marriage by wedding in North Carolina. After returning to Virginia, the woman later sought an annulment under the antimiscegenation law, which her husband then challenged as unconstitutional. The trial court granted the annulment, and the Virginia Court of Appeals affirmed, sustaining the statute.
This was the last case the Justices wished to see on their docket in 1955, but it seemed to fall within the Court's mandatory jurisdiction. Today, the Justices have almost complete discretion over their docket, but in the mid-1950s federal law still required them to grant appeals when state courts had rejected federal claims that were not "insubstantial." (116) To say that antimiscegenation laws posed an insubstantial constitutional question would have been absurd. The importance was "obvious," law clerk William A. Norris (later a judge on the U.S. Court of Appeals for the Ninth Circuit) told Justice Douglas, and "[f]ailure to decide the case would blur any distinction remaining between certiorari and appeal." (117) Justice Harold Burton's clerk agreed that the Court could not honestly avoid the case, though he would have preferred to "give the present fire a chance to burn down." (118)
Both clerks underestimated the desperation and creativity of the Justices. Though several Justices wished to take jurisdiction, (119) others searched for an escape route. Justice Tom Clark suggested one: the plaintiff should be estopped from invoking the antimiscegenation law because she knew of the defendant's race when they married and deliberately evaded the statutory prohibition. (120) Burton suggested another: they could dismiss the case on the independent state-law ground that Virginia required residents to marry within the state--a plainly erroneous reading of Virginia law. (121)
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