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1989 BYU L. Rev. 59 (1989)
The Court, the Academy, and the Constitution: A Comment on Bowers v. Hardwick and its Critics

handle is hein.journals/byulr1989 and id is 73 raw text is: The Court, the Academy, and the Constitution: A Comment on Bowers v. Hardwick and its Critics Earl M. Maltz* I. INTRODUCTION The transition from the Warren Court to the Burger Court not only changed the makeup of the Court itself, but also pre- saged a shift in the relationship between the Court and the aca- demic community. Scholars had generally been critical of the Warren Court's willingness to use judicial power to advance the left-center political agenda of the majority of the Justices.1 By contrast, commentators perceived the Burger Court as having a more conservative orientation and urged the Court to be more forceful in advancing the same left-center political agenda, even in areas such as discrimination on the basis of sex and alienage in which the Burger Court went far beyond Warren Court precedent.' * Professor of Law, Rutgers (Camden). 1. See infra notes 11-15 and accompanying text. 2. Prior to the efforts of the Burger Court, the leading case on sex discrimination was Goesaert v. Cleary, 335 U.S. 464 (1948), in which the Court rejected a challenge to a state law sharply restricting the licensing of women as bartenders. Goesaert was over- ruled by Craig v. Boren, 429 U.S. 190, 210 n.23 (1976). Other illustrations of the Burger Court's activism on issues of sex discrimination include Caban v. Mohammed, 441 U.S. 380 (1979), and Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). The development of the modern case law is analyzed in Maltz, The Concept of the Doctrine of the Court in Constitutional Law, 16 GA. L Rav. 357 (1982). Prominent examples of the criticism of the Court for being insufficiently activist on the matter of sex discrimination include Freedman, Sex Equality, Sex Differences, and the Supreme Court, 92 YALE L.J. 913 (1983), and Law, Rethinking Sex and the Consti- tution, 132 U. PA. L. Rxv. 955 (1984). The Burger Court's general approach to discrimination on the basis of alienage is exemplified by cases such as Bernal v. Fainter, 467 U.S. 216 (1984), and Graham v. Rich- ardson, 403 U.S. 365 (1971), both of which applied strict judicial scrutiny to strike down state laws which discriminated against aliens. Much of the criticism of the Court's ap- proach has been directed toward its refusal to apply strict scrutiny to discrimination against aliens by the federal government. Mathews v. Diaz, 426 U.S. 67 (1976), and its recognition of a political function exception to the strict scrutiny standard for state law classifications based on alienage. E.g., Sugarman v. Dougall, 413 U.S. 634, 647 (1973). See

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