Volume:14 Issue 1, 2004
The Supreme Court and the Family
Foreword
Most family lawyers still think of family law as local law. No mention of the Family is made in the United States Constitution's long list of topics authorized for federal legislation. Nor does “family,” or “marriage,” or “parent,” or “child” appear in the Constitution's Bill of Rights. In the United States, state legislatures have long had primary responsibility for the law defining and regulating family relationships, their formation and their dissolution. Much of federal domestic law—especially in the fields of taxation, social services, and welfare—rests on these essentially local definitions and regulation. And, until the last sixty years or so—the Great Depression and Second World War seem to provide the most recognizable watershed—the myriad of local definitions and local regulation of family relationships coincided nicely, not only with each other, but also with the conventional American family in fact.
Yet an ever-accelerating trend toward nationalization of family law has been apparent for more than five decades. No single institution can take full credit for this trend. Uniform legislation, proposed for adoption by state legislatures, has played a significant role. So has the gradual nationwide rejection of roles defined by gender and of governmental authority over matters sexual and reproductive, and the similarly gradual nationwide acceptance of unmarried cohabitation, illegitimacy, and no-fault divorce. So has congressional implementation of the Welfare State, and the use of the federal taxing and spending powers to mandate reforms in the ways the states deal with the likes of child support and juvenile dependency proceedings.
No governmental institution, however, can take more responsibility than the United States Supreme Court for this accelerating trend. After a hundred fifty years of cheerleading for conventional family values, followed by twenty years or so of supervising state and federal treatment of divorce, the High Court has become the most important governmental instigator of the current and ongoing revisionism we have been witnessing in United States family structure, family functions, and family values.
This symposium records the instigation. It includes about fifty full-scale notes and more than a hundred briefs on leading United States Supreme Court decisions, as well as several short articles on current or anticipated areas of Supreme Court activity, dealing with some aspect of family law. Most notes and briefs include quotation of the most important passage or passages from the Court's majority opinion. Additional readings, typically of the law-review variety, are cited after most of the case notes and case briefs. Family lawyers should find in it a convenient one-volume reference for the Supreme Court's family-law decisions. Teachers and students should find it to be a useful supplement to their law-school family law courses.
Without doubt some works in the Supreme Court's family-law opus have been left out of this symposium, but nearly all of the Court's more important and better known decisions find representation here in some form. Although constitutional issues predominate in this case literature, especially since the 1970s, several areas of statutory interpretation are represented as well. The fifty or so student case-note authors who picked from the longer list did not always choose the best known or most important cases, and thus some of these more important decisions receive a more abbreviated treatment than readers might like.
Case notes and case briefs are subdivided roughly into categories that would make sense for a law school course or family lawyer's practice: an introduction of sorts, followed by sections on marriage and divorce, abortion, parental rights, family and child support, and rights of children. Parts Three through Six arrange Supreme Court decisions chronologically. Part One arranges the decisions chronologically according to history and federalism concerns, constitutional “family” entitlements, and the definition of “family” for purposes of those entitlements. Part Two arranges the decisions chronologically within the general subcategories of constitutional entitlements to marriage and divorce, incidents of the marital relationship, and State authority over divorce. This scheme has its disadvantages, for which compensation is partially made by the inclusion of both alphabetical and chronological tables of cases in addition to the usual table of contents and table of authors.
I am grateful for the assistance of this issue's student editors. Timothy Callender (Class of ‘04) assisted in organizing the symposium, drafted nearly all of the case briefs, and collected most of the additional readings. Phillip Askim (Class of ‘07) proof-read and cite-checked the case notes, and Nicholas Fromherz (Class of ‘07) assisted in editing the case briefs and collecting and cite-checking the additional readings. Thanks as well to Brigid Bennett, who managed the School of Law 's role in the publication of this issue, and to my dean, Daniel Rodriguez, who supported the effort.
That the work in this volume is student work, edited and sometimes commented on by me, deserves no apology. The legal profession has a long and distinguished tradition of relying on its students and young lawyers, in addition to its professional academics and experienced practitioners, for the scholarly component of its endeavors. The tradition has been especially strong in the noting and briefing of particular court decisions for audiences of law academics and practitioners. The reader should bring the same lawyering skills he or she uses for the writings of judges, legislators, and professional academics—not to mention adversary lawyers—to the case notes and briefs found in this compilation; no fewer, and no more.
Paul Horton, Faculty Editor
University of San Diego School of Law
Fall 2004
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