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The Supreme Court in the Intimate Lives of Americans

The Supreme Court in the Intimate Lives of Americans: Birth, Sex, Marriage, Childrearing, and Death

Howard Ball
Copyright Date: 2002
Published by: NYU Press
Pages: 265
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  • Book Info
    The Supreme Court in the Intimate Lives of Americans
    Book Description:

    Choice Outstanding Academic Title 2003 Personal rights, such as the right to procreate - or not - and the right to die generate endless debate. This book maps out the legal, political, and ethical issues swirling around personal rights. Howard Ball shows how the Supreme Court has grappled with the right to reproduce and to abort, and takes on the issue of auto-euthanasia and assisted suicide, from Karen Ann Quinlan through Kevorkian and just recently to the Florida case of the woman who was paralyzed by a gunshot from her mother and who had the plug pulled on herself. For the last half of the twentieth century, the justices of the Supreme Court have had to wrestle with new and difficult life and death questions for them as well as for doctors and their patients, medical ethicists, sociologists, medical practitioners, clergy, philosophers, law makers, and judges. The Supreme Court in the Intimate Lives of Americans offers a look at these issues as they emerged and examines the manner in which the men and women of the U.S. Supreme Court addressed them.

    eISBN: 978-0-8147-2301-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Acknowledgments
    (pp. xi-xii)
  4. Introduction
    (pp. 1-6)

    Storks do not, as Max Lerner observed many decades ago, deliver constitutional cases and the decisions that follow.¹ Nor do they “just ‘happen,’ as one might think if one were to look only at the cases decided by the Supreme Court as they appear in constitutional law casebooks and are discussed in academic commentary.”²

    First of all, the U.S. Supreme Court decides which cases it wishes to hear on the merits.³ The Justices have total discretion in creating the Court’s docket. Four Justices must vote to grant certiorari, called the “vote of four,” in a particular case in order for...

  5. 1 “Fundamental” Rights versus State Interests State Interests: The Balancing Process
    (pp. 7-30)

    The right to be “left alone” is not absolute. “I like my privacy as well as the next one,” wrote Justice Hugo L. Black in hisGriswold² dissent, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional prohibition.”The Fourth Amendment, he reminded Americans for three decades, prohibited only “unreasonable” searches and seizures of persons, and their “houses, papers, and effects.”³

    SinceGriswold, the “right of privacy” has been seen, legally, as a fundamental right all persons possess. Legislators, presidents, governors, attorneys general, judges, pressure groups, and the general...

  6. 2 Marriage and Marital Privacy
    (pp. 31-67)

    The Supreme Court’s decision inRomerwas seen by many who supported same-sex marriage as the light that effectively obliterated the darkness ofBowers, allowing a state to make criminal such “malignant” behavior.Romerwas viewed by these optimists as the judiciary’s “demonstration of equal respect and concern for gay and lesbian people, and its positive language seriously undercuts the harsh anachronistic views by the 1986 majority opinion inBowers.”¹ However, as this chapter will suggest, marriage law and public policy actions in defense of traditional views of heterosexual marriage still hold sway as the United States enters the twentyfirst...

  7. 3 The “Rhapsody of the Unitary Family”
    (pp. 68-89)

    The concept of the traditional family, that is, the “natural reproductive unit” of mom, pop, and the children all living under one roof, is not an immutable one. It is a social construct that varies from culture to culture and, over time, the definition changes within a culture. In American society, the idea of such a family was “forged in the early years of the Industrial Revolution.” ³ One hundred years later, the idea of family is again going through significant change; it is an alteration that concerns many persons and institutions, including a majority of the Justices of the...

  8. 4 Motherhood or Not, That Is Her Decision
    (pp. 90-121)

    Abortion rights of women was one of a number of demands of the women’s rights movement that emerged in the 1960s. It had emerged as an explosive public policy controversy during the time that Republican President Richard Nixon (1969–1974) appointed four new Justices to the Court. It was Nixon’s hope that they would reverse many of the Warren Court’s decisions that were the foundation for the revolution in civil rights and liberties, especially the recently judicially crafted privacy right. (Just a few years earlier, Nixon personally tasted defeat when the Court ruled in favor of Time magazine.)


  9. 5 Raising the Child: “Father Knows Best”?
    (pp. 122-167)

    During a discussion of a parental authority case in 1978, Justice Potter Stewart declared:

    This is not an easy case. Issues involving the family are among the most difficult that [we] have to face, involving serious problems of policy disguised as questions of constitutional law.²

    Hard cases make bad law.³ This axiom has been exhibited throughout the book. This chapter is no exception. The reason is simple: cases involving the intimate, often sexual, relationships between people exhibit, in sharp focus, the values of the Justices. The men and women who sit on the U.S. Supreme Court draw on their own...

  10. 6 “Let Me Go!”: Death in the Family
    (pp. 168-198)

    The right to have an abortion was the premier privacy issue of the 1970’s,” wrote a reporter in 1985. “This decade, it’s the “right-to-die.’”² That the “right-to-die” was seen as a “premier” issue is paradoxical because Americans have had a “discomfort with death. Medicine and contemporary culture have combined to erase death from our imaginations.”³ However, as a doctor wrote, the reality is that “most of us will face some form of hightech dying, and we need to be ready for it.”⁴

    Very slowly, in great part because of the recent, sensational advances in medical technology, what Sherwin Nuland called...

  11. 7 Family and Personal Privacy in the Twenty-First Century
    (pp. 199-218)

    Hard cases involving intimate personal and family relations continue to arrive in courtrooms around the nation. In July 2001, for example, a frustrated Wisconsin Supreme Court upheld a probation order that barred a man convicted of failure to pay child supportfrom having more childrenunless he shows that he can support all his children.

    According to the story in theNew York Times, thirty-four-year-old David Oakley, “who has nine children by four women and owes $25,000 in child support, faces eight years in prison if he violates the condition.” The Wisconsin high court divided 4:3 along gender lines. All...

  12. Notes
    (pp. 219-250)
  13. Bibliography
    (pp. 251-258)
  14. Index
    (pp. 259-264)
  15. About the Author
    (pp. 265-265)