Document Type

Conference Proceeding

Publication Date



Submission to be published in Studies in Law, Politics and Society, v.44 Special Issue: Constitutional Politics in a Conservative Era, 2008, pp. 175-219.


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 predictiong individual rights in the future.