Legalists and social scientists have not been able to explain the expansion of gay rights in a conservative age because they refuse to respect the special qualities of judicial decision making. These qualities require the Supreme Court to look simultaneously at the past, present, and future, and, most importantly, to determine questions of individual rights through a consideration of how citizens are to live under a continuing rights regime. Unless scholars understand how and why Supreme Court decision making differs from that of more directly politically accountable institutions we can expect no greater success in explaining or predicting individual rights in the future.
Kahn, R. (2008), "Why Does a Moderate/Conservative Supreme Court in a Conservative Age Expand Gay Rights?: Lawrence v. Texas", Sarat, A. (Ed.) Special Issue Constitutional Politics in a Conservative Era (Studies in Law, Politics, and Society, Vol. 44), Emerald Group Publishing Limited, Bingley, pp. 173-217. https://doi.org/10.1016/S1059-4337(08)00806-5
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