The Nine by Jeffrey Toobin

Author:Jeffrey Toobin
Language: eng
Format: mobi, epub
Tags: Non-fiction
ISBN: 9780385516402
Publisher: New York : Doubleday, c2007.
Published: 2007-01-02T00:00:00+00:00

One Saturday in the spring of 1986, Justice Lewis Powell struck up an unusual conversation with one of his law clerks, Cabell Chinnis Jr., about Bowers v. Hardwick. As Chinnis recounted the exchange to Joyce Murdoch and Deb Price, authors of a history of gay rights at the Supreme Court, Powell asked about the prevalence of homosexuality, which one friend-of-the-court brief estimated at 10 percent. Chinnis said that sounded right to him. “I don’t believe I’ve ever met a homosexual,” Powell replied. Chinnis said that seemed unlikely. Later the same day, Powell came back to Chinnis and asked, “Why don’t homosexuals have sex with women?” “Justice Powell,” he replied, “a gay man cannot have an erection to perform intercourse with a woman.” The conversation was especially bizarre not just because of its explicit nature but because Chinnis himself was gay (as were several of Powell’s previous law clerks). Earlier in the term, Chinnis had introduced Powell to the man he had lived with, but the clerk never knew for sure what Powell understood about his sexuality. The matter turned out to be of more than passing significance because Powell, after a great deal of agonizing, ultimately provided the fifth vote in support of White’s opinion in Bowers.

Seventeen years later, when the Court weighed whether to overturn Bowers, no justice could conceive of asserting that he (or she) had never met a homosexual. But the fact that the justices all knew gay people did not necessarily mean that they were inclined to overrule what was still a fairly recent precedent.

The facts in the new case, Lawrence v. Texas, were uncomplicated and very similar to those that gave rise to Bowers. On September 17, 1998, Houston police, responding to a report of a weapons disturbance, entered an apartment where John Geddes Lawrence and Tyron Garner were having sex. The two men were arrested for violating the Texas law against “deviate sexual intercourse,” which prohibited oral and anal sex. The question for the Court was whether a state could constitutionally prohibit consensual sexual conduct between adults.

Even at the oral argument, it was apparent how much the Court had changed over the years. All Rehnquist could say in support of the Texas law was that “the kind of conduct we’re talking about here has been banned for a long time.” Even Scalia, who had, like Rehnquist and O’Connor, supported the Bowers opinion, sounded defensive. “It’s an act committed in private,” he said. “The police have not gone around knocking on bedroom doors to see if anyone—I mean—this is not the kind of a crime that the police go around looking for.” In questioning Charles A. Rosenthal Jr., the Harris County district attorney, Breyer called the Bowers decision “harmful in consequence, wrong in theory, and understating the constitutional value” and asked, “How do you respond to that?”

Rosenthal tried to change the subject.

But Breyer wouldn’t give up, saying, “I would like to hear your straight answer.”

The worldly Supreme Court audience chuckled at the double entendre, which Breyer himself neither intended nor noticed.

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