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Sunday, June 09, 2013

Did Justice Powell Know He Had A Gay Clerk?

If you just looked at the front page of today's New York Times, you might not know from headline ("Exhibit A for a Major Shift: Justices' Gay Clerks") that it contains what seems to be a major historical revelation.  Most people familiar with the Court's progression from Bowers v. Hardwick to Lawrence v. Texas are also familiar with a sad and ironic statement attributed to Justice Powell: In the course of changing his vote to uphold the law, he was reported to have said "I don't believe I've ever met a homosexual," even as he had a gay clerk at the time.

Well, according to today's story, Justice Powell may have said that, but he knew that it was not true:

C. Cabell Chinnis, a gay lawyer who practices law in Palo Alto, Calif., was one of Justice Powell’s clerks as the justice was struggling with how to vote in the Hardwick case. In an interview, Mr. Chinnis said his boss must have known about his sexual orientation. “He had met my boyfriend,” Mr. Chinnis said.

Indeed, the justice sought him out for advice precisely because he wanted to learn about the mechanics of gay sex, Mr. Chinnis said, recalling an uncomfortable exchange on the subject. “This 78-year-old man is asking me about erections at the Supreme Court,” he said. ...

“It’s more important to me to make love to the person I love,” Mr. Chinnis remembered saying, “than to vote for a judge in a local election.”

Now maybe this is common knowledge to those who've been following the history of the Court more closely than I have.  But Powell's Wikipedia page says he didn't know, his 2002 obituary in the New York Times suggests he didn't, as do many other stories.  So correct me if I'm wrong, but if true, this seems like big news.

[Of course it's also possible that Mr. Chinnis's comments have been mis-reported or taken out of context.  Courting Justice, by Joyce Murdoch and Deborah Price reports that none of Powell's clerks ever came out to him, and includes quotations from Mr. Chinnis that suggest a slightly different account.  But it's hard to tell for sure.]

Posted by Will Baude on June 9, 2013 at 10:39 AM in Constitutional thoughts, Workplace Law | Permalink


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It's a fascinating topic. If we read Courting Justice, we see how carefully the justices thought about Hardwick and at the same time how ignorant they were about the stakes. Regardless of whether the justices have gay clerks now, it would be hard to imagine they would be as clueless as Powell was.

Posted by: Darren | Jun 11, 2013 11:02:50 PM

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