Their Love is Here to Stay: Why the Supreme Court Cannot Turn Back the Hands of Time

Abstract

Throughout history, and certainly throughout the history of this nation, change has been a constant. Customs and mores have moved back and forth between liberal and conservative, freewheeling to draconian, with never-ending changes in between. Political changes have concurrently ushered in administrations and legislatures who have idealized many of these societal mores. In the 1950s, amid widespread, systemic, and in many cases fiercely defended patterns of segregation in this nation, the Supreme Court of the United States told the country that the time had come for forced integration. In 1973, the Court allowed legal access to abortion, and in 2003, put an end to criminal sanctions for homosexuality, which it had upheld only seventeen years earlier.

Recent changes on the Court, specifically the retirements of Justice Sandra Day O'Connor -- long considered the "swing" vote on a fairly conservative Court -- and Justice John Paul Stevens -- the de facto leader of the liberal block -- as well as the appointments of known conservatives Chief Justice John Roberts and Associate Justice Samuel Alito, have led to speculation on both sides of the political spectrum that the Court is destined to change and/or overturn long-established law. This, in turn, leads to quandaries by interested parties of whether and when to bring challenges on controversial issues. Much of the discussion in this article focuses on contentious issues, such as abortion and same-sex relationships, including partner rights, adoption and other societal benefits. However, this article also looks at the history of major issues in controversy to determine how and why they were resolved and how history may give guidance to the likely resolution of future issues.

Part I takes a brief look at the Court as an institution, Presidential appointments, and judicial perceptions. Part II looks at a brief history of some landmark cases and their surroundings, including the makeup of the Court at each of these times in history, as well as the societal influences that surrounded them. A major focus is whether, in many of the precedential cases, it was the Court and/or societal changes that paved the way to the ultimate decisions. It looks at what role public opinion may have played in these holdings, including the kinds of violent confrontations and mass rallies preceding decisions such as Brown v. Board of Education and Roe v. Wade, and the continuing controversies surrounding such topics as new cases have arisen. It addresses changes both in the makeup of the bench and in societal mores between the time of an earlier decision such as Roe and later challenges to it, as in Planned Parenthood v. Casey, to try to determine what might have been the predicted outcomes of each and whether those predictions held true. Much of the research is focused on family and privacy issues, looking to the string of "privacy cases" beginning with Griswold v. Connecticut as well as cases prior to this seminal case, and culminating, at least presently, in Planned Parenthood v. Casey and Ayotte v. Planned Parenthood.

Keywords: Supreme Court, Justice, Sandra Day O’Connor, John Paul Stevens, John Roberts, Samuel Alito, Brown v. Board of Education, Roe v. Wade, Griswold v. Connecticut, Planned Parenthood v. Casey, Ayotte v. Planned Parenthood, marriage, privacy cases, homosexuality, gay marriage, partner rights, adoption