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Faculty Q&A

Posted Dec. 14, 2010

Goluboff Explores Supreme Court Connection Between Vagrancy Law and Abortion Rights

Risa Goluboff

Legal historian Risa Goluboff’s scholarship has focused on the history of civil rights, labor and constitutional law in the 20th century. In her latest paper, “Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights” (Stanford Law Review, 2010), Goluboff casts new light on the connections between two U.S. Supreme Court cases, the 1972 vagrancy case Papachristou v. City of Jacksonville and the infamous abortion rights case Roe v. Wade (1973).

Goluboff is a 2009 John Simon Guggenheim Foundation Fellow in Constitutional Studies. Her first book, “The Lost Promise of Civil Rights,” won the 2010 Order of the Coif Biennial Book Award and the 2008 James Willard Hurst Prize. Goluboff is Caddell & Chapman Professor of Law and Professor of History at the University of Virginia.

In your article, you describe how two doctrines — fundamental rights and vagueness — play a role in these cases. How did these two ideas bump into each other?

The two offer different ways for courts to regulate legislatures, and in turn, executive officials like police officers. When judges use fundamental rights, like the right to privacy in Roe, they tell legislatures that they are not to regulate certain arenas of life without a really good reason. When judges use vagueness, they simply tell the legislature that the current law is not specific enough — it does not inform people or police officers clearly enough about what behaviors are proscribed — and so they must try to be more specific.

You describe how the justices relied on arguments about vagueness and fundamental rights, and how the initial reasoning deciding these two cases “switched places.” Why did that happen?

I can answer that question on at least two different levels. The first level concerns the behind-the-scenes wrangling among the justices. In Papachristou, Justice Douglas initially used fundamental rights—rights to wander, dissent, be a nonconformist — as the basis for his opinion. But Justice Stewart objected. He said he would sign on if Justice Douglas changed the opinion to rely on vagueness. So Douglas did. And in Roe, Justice Blackmun initially used vagueness, but Justices Brennan and Douglas urged him to get to the heart of the issue and recognize the fundamental rights at stake. So Blackmun did.

The more substantive level has to do with why the justices were pushing in various directions. As Professor Anthony Amsterdam noted decades ago, vagueness arguments often obscure the justices’ substantive commitments. So in Roe, Justice Blackmun was trying to avoid dealing with the hard question of when life began by using vagueness instead of fundamental rights. (He was also building on the arguments and concerns of doctors who faced potential liability if they interpreted the standards in therapeutic abortion laws differently from courts.) Brennan and Douglas wanted Blackmun to face the real issues, and they succeeded. In Papachristou, Douglas had a sense of fundamental rights that was wide-ranging, something of an anthem for the nonconformity of the 1960s that had been building. It is possible that the breadth and ambiguity of what Douglas meant made some of the justices hesitate. It is also possible that the other justices preferred vagueness because they had already struck down similar laws on that ground, and they thought it most appropriate to continue to do so.

What did your research reveal about how the justices interacted in this time period (early 1970s)?

I was surprised to find a lot of interaction between Justices Douglas and Brennan. Douglas was something of a maverick on the Court, especially by the 1970s. So I was surprised to see memos just between the two of them, Douglas sharing drafts with Brennan, Brennan suggesting whole lines of argument to Douglas, Douglas accepting them. Although there has been some work on the relationship between the two men, I think more is still necessary.

How does this area of research fit into your broader goals as a scholar?

I am generally interested in the relationship between social change and legal change. How does legal change occur? What is its relationship to broader changes in society? In the past, I have mostly explored other moments in this process of change — how laypeople understand and articulate their rights, how lawyers transform lay rights claims into legal language and categories. This is my first real in-depth exploration of the justices’ responses and interactions over those arguments. Doing research in the justices’ papers enables me to see one more moment in the process of law creation, to understand what happens to lawyers’ arguments and individual cases once they get up to the Court. (And then, of course, to see what laypeople and lawyers do with those arguments after the justices have handed down their opinions.)

What do you hope to explore in your next book?

My next book, “People out of Place: The Sixties, the Supreme Court, and Vagrancy Law,” will build on this essay. It explores the upheavals and transformations of the 1960s through the lens of the gradual downfall of vagrancy laws, and it shows how the fall of vagrancy laws were an integral part of those transformations.

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