In February, 1983, lawyers for the American Civil Liberties Union in Georgia faced a dilemma. After years of looking, they believed that they had found the ideal plaintiff to challenge a state law against “the offense of sodomy,” which carried a sentence of one to twenty years. He was Michael Hardwick, a twenty-eight-year-old bartender who had been arrested after a police officer, following up on an old ticket for drinking in public, came into his home and found him having oral sex with another man. No one involved was a minor, or a sex worker, or afraid of being outed—Hardwick was openly gay. And he’d immediately asked the officer a question that many jurors might have: “What are you doing in my bedroom?” An A.C.L.U. lawyer later said that it was “the best fact pattern we will probably ever get in a sodomy law case.” But, perhaps for that very reason, the Fulton County district attorney stalled on bringing it to trial. So the A.C.L.U. sued to force the issue: it was the eighties, a decade and a half after Stonewall; Georgia’s law was archaic and cruel. It was past time.
Yet when the case, Bowers v. Hardwick, came before the Supreme Court, in 1986, a 5–4 majority upheld the law—a profound shock for many people in and outside the gay community. As Martin Padgett writes in a new book, “The Many Passions of Michael Hardwick,” some factors contributing to the defeat were specific to that period, including the rise of Reaganism, fearmongering about aids, and the personal pique of Justice Lewis Powell, who later said that he had found the whole business “frivolous.” But its lessons may be useful in these unsteady days, too, with our own uncivil Court.
President Donald Trump is trying to ransack the Constitution, and the Supreme Court’s conservative majority too often appears to be either complacent or just lost. The blows come weekly, even daily, with headlines about, say, the Court permitting the deportation, without adequate due process, to South Sudan of migrants with no connection to that country. The Court has also allowed Trump to begin dismantling the Department of Education, and issued rulings constraining trans rights. Most remarkably, in Trump v. CASA, a decision whose declared purpose was to stop lower-court judges from issuing nationwide, or “universal,” injunctions—in itself a reasonable enough move, as such injunctions have been misused in partisan ways—the conservative Justices acted as if there might be some constitutional mystery about the citizenship of babies born in the United States. There is not, under the plain language of the Fourteenth Amendment. “Shamefully,” as Justice Sonia Sotomayor put it in a scathing dissent, the majority seemed too timid to say so.
There have been wins; in a case now known as W.M.M. v. Trump, the Court, ruling after midnight, temporarily blocked some deportations. But there are more tough fights ahead, involving universities, law firms, cities, and, crucially, Trump’s ability to assert that the U.S. is under invasion by foreign forces, which would give him certain wartime powers. There will likely be more losses.
One lesson of Bowers, however, is that what feels like the end can be a beginning. Sarah Schulman’s “Let the Record Show,” from 2021, a history of the act up coalition, describes how going to a Bowers protest was often the first step on a path to activism. The streets were not the only venue; advocates also pursued parallel campaigns at the ballot box and in state courts and legislatures. The Court finally overturned Bowers in 2003, in Lawrence v. Texas, but the Georgia Supreme Court had thrown out the state law in question five years earlier. The lawsuits need to keep coming.
The birthright-citizenship question will surely be back in the Court soon. It was prompted by Trump’s January 20th executive order to begin denying citizenship to babies born to mothers who have either no legal status or a status that is lawful but temporary and to fathers who are neither citizens nor green-card holders. Lower-court judges quickly blocked this wildly illegal order by issuing universal injunctions. The CASA decision, written by Amy Coney Barrett, took that particular legal tool out of their hands, saying that those judges could give “complete relief” (a legal term for remedying harm) only to the parties before them, and to no one else. Some observers feared that only children with a lawyer ready would be able to secure their citizenship. Thankfully, that worry has abated.
For one thing, an option left standing in what Sotomayor called “the rubble” of CASA is a class-action suit, which she urged the parents of affected babies “to file promptly.” Such suits, in which a small number of plaintiffs are recognized as representatives of a larger group, have a longer and far sounder track record than do universal injunctions, which have become common only in recent years. Brown v. Board of Education, for instance, was a class-action suit. (Justice Thurgood Marshall, who argued Brown as a young lawyer, dissented in Bowers.)
Sotomayor’s advice was heeded: on July 10th, a federal judge in New Hampshire provisionally certified a class of all babies targeted by Trump’s order born on or after February 20th, when it originally would have gone into effect, and enjoined its enforcement against any of them. The class-representative babies are known in court papers as Matthew, born in Florida in March, and Sarah, born in Utah in April. The A.C.L.U. and others have also brought a class-action suit on behalf of all detainees at Alligator Alcatraz—the actual name of the now notorious migrant-detention facility in Florida—on the ground that they don’t have access to lawyers.
In addition, the plaintiffs in CASA included twenty-two states, and Barrett herself came frustratingly close to acknowledging that complete relief for them would require something very much like a universal injunction. The alternative could be a dizzying situation in which people lost or gained their citizenship as they crossed state lines. But Barrett left that call to the lower courts. Indeed, last Wednesday, in a case brought by Washington, Arizona, Illinois, and Oregon, the Court of Appeals for the Ninth Circuit blocked the order nationwide—at least for now—finding that states would otherwise be in an “impossible” position.
The Court’s conservative majority seems at times uncomfortable with the position that Trump has put it in. It has largely expressed this unease by being avoidant—focussing on ancillary technical issues, sending questions back to lower courts, or deferring decisions to another day. But the Justices can’t procrastinate forever, unless they’re ready for a constitutional crisis. The danger is that some of them may be. ♦
