Gupta-Kagan on a Landmark Family Law Case

Josh Gupta-Kagan, University of South Carolina School of Law, has posted Stanley v. Illinois' Untold Story, William & Mary Bill of Rights Journal 24 (2016):

Stanley v. Illinois is one of the Supreme Court’s more curious landmark cases. The holding is well known: the Due Process Clause prohibits the state from removing children from unwed fathers simply because they are not married and requires the state to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents’ rights, Stanley reaffirmed Lochner-era cases that had been in doubt, and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this decision.

This Article tells Stanley’s untold story for the first time, using original research of state court and Supreme Court records. Those records show that the state was concerned about Stanley’s parental fitness, and did not remove his children simply because he was unmarried, as is frequently assumed. But the state refused to prove Stanley unfit and relied instead on his marital status to justify depriving him of custody. That choice, and Stanley’s avoidance of a due process argument, created a complicated Supreme Court decision-making environment.

This Article explores the Supreme Court’s decision-making in Stanley, and reveals new insights both about Stanley and the Court more broadly. Four justices changed their votes from conference to the final decision – an extreme amount of voting fluidity that shifted the case outcome. The justices’ varying and evolving views eventually led them to a strong due process holding, even though Stanley did not ask for one. This issue fluidity – when the Court issues a ruling based on arguments not raised by the parties – reflects a complex interaction between justices’ efforts to form a majority coalition and lawyers’ litigation choices. Finally, the justices’ papers reveal how Justice Harry Blackmun’s shift to the liberal wing of the Court – and to a staunch parents’ rights vote – began with his angst over Stanley, despite his vote for the state.

H/t: Legal Theory Blog