The Supreme Court and "The Reality of Lived Lives"

Abstract

Ronald Kahn has contributed importantly to understanding the Court’s principled decision-making and members’ awareness of changing social facts. He sees a Court that is responsive to changes in “lived lives” and that is increasingly rights-protective even as its membership became more conservative. Kahn expects continued Court recognition of emerging fundamental rights because most members engage in bidirectional decision-making and regard certain social facts as precedential. This essay contends that heavy focus on gay rights, with decisions authored by Justice Anthony Kennedy, generates a skewed image of the Court; gay rights may be an outlier. Justices also embrace polity and rights principles that result in rights-protective decisions that do not readily fit a progressive narrative. The fact that Republican presidents have made a large majority of recent Court appointments but that Roe v. Wade remains and gay rights have been affirmed also makes sense when looking at who replaced whom from 1981 to 2018.