Court composition, public opinion, and justice attitudes explain the Bowers-to-Lawrence reversal.

Evidence

Nonlegal factors, however, provide an alternative explanation for the differing outcomes in the two cases. One such factor might be changes in the composition of the Supreme Court. Of the five justices who made up the majority in Bowers, three had retired by the time the Court decided Lawrence. Of the five justices appointed between 1986 and 2003, three voted to overrule Bowers. What may have changed was not the law but who was interpreting it. A second nonlegal factor, changes in societal views, might also be pertinent. As Justice Benjamin Cardozo put it, “The great tides and currents which engulf the rest of men do not turn aside in their course and pass judges by.” Between the rulings in Bowers and Lawrence, American public opinion became more accepting of same-sex relationships, and this might have influenced the Court’s change in perspective. A third nonlegal factor—namely, the political and social attitudes of the justices themselves—could also have played a part. — G. Alan Tarr, Judicial Process and Judicial…, 1210

Categorization

• XREF: Offers a case-comparison method of holding law constant while testing personnel and societal change — the kind of before/after comparison familiar from social-science treatments of legal change. — connects to: Originalist and living-constitution methods produced the Bowers and Lawrence outcomes. — G. Alan Tarr, Judicial Process and Judicial…, 1207; Judges intuit case outcomes first and justify them in written opinions afterward. — G. Alan Tarr, Judicial Process and Judicial…, 1217; Justice turnover explains the Court’s reversal in Lawrence. — G. Alan Tarr, Judicial Process and Judicial…, 2431 (+3 more)
• SHARE: The detail that three of five Bowers majority justices had retired and three of five newly appointed justices voted to overrule is a sharp empirical nut to share with a con-law colleague.

Broader Connections

• Justice turnover explains the Court’s reversal in Lawrence. #corroborates (0.85) — G. Alan Tarr, Judicial Process and Judicial…, 2431
• Judicial opinions mask value judgments behind a surface of logical form. #contradicts (0.75) — G. Alan Tarr, Judicial Process and Judicial…, 1290
• Hidden value judgments, not logic, drive key judicial decisions #contradicts (0.75) — G. Alan Tarr, Judicial Process and Judicial…, 2550