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Vanderbilt Law Review

First Page

847

Abstract

The Supreme Court's opinion in Bowers v. Hardwick' contains the usual cant about the legitimacy of the judicial function. In holding that the due process clause of the fourteenth amendment does not recognize a fundamental right to practice homosexual sodomy, the Court cautioned that "[t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. What exactly did the Court mean? That the public would refuse to obey judicial judgments if the Court were to recognize rights not "found in" the Constitution? That the public would disregard Court rulings that at least partially reflected the Justices' policy judgments rather than being based on so-called "neutral principles?" That constitutional law scholars would decry the Court's use of policy analysis in interpretation?

All of these consequences are unlikely for a variety of reasons. Throughout history the Court has recognized rights not "found in" the Constitution without jeopardizing the Court's legitimacy. The public at large is unlikely to know what is or is not "in" the Constitution. Most people are ignorant about its contents" or overtly disagree with some of its contents. Academics may critique the Court's forays into policy analysis. But even this form of scholarly attack is increasingly rare, and no link between scholarly critique and public acceptance of the Court's judgments has been established. If anything did matter to the public it probably would be the result. Judge Robert Bork's failed effort to educate the public on the alleged indefensibility of the reasoning in Griswold v. Connecticut and Bolling v. Sharpe" demonstrates that judicial methodology may be of little interest to a citizenry whose everyday lives can be governed by what it considers objectionable results.

Unpacking the Court's "legitimacy" discussion in Bowers v. Hard- wick reveals some preoccupation with the public's vision of law and legal interpretation. Yet it is improbable that the public learns about law only from the opinions of the judiciary. Other sources of information include newspapers, books, television, personal experience, or word of mouth. The public's image of law unquestionably is shaped by what lawyers would describe as "extra-legal" sources.

One such obvious source of knowledge is literature. Law has a way of working itself into literature, both popular" and classic.' This raises many interesting questions. Can literature profitably shed light on legal issues or jurisprudential questions? Do readers draw a view of law from works of literature? If so, do they believe what they read? Do authors even care about their portrayals of law in their works of fiction? These provocative questions have generated substantial debate and discussion. ' For my purposes, however, I view them as largely irrelevant, or as a given. It is difficult to deny that popular culture plays some role in contributing to the public's perception of law and legal institutions." That being so, what messages do people get about law from works of literature? Do the messages differ from those transmitted through more formal legal channels, like Bowers v. Hardwick?

I offer a tentative examination of this topic by examining Scott Turow's recent work The Burden of Proof. The book is a worthwhile subject for a number of reasons. It has widespread popularity among both lawyers and nonlawyers. Turow is a lawyer who writes about the law and legal characters. His work draws extensively on his personal experiences, particularly his tenure as an Assistant United States Attorney (AUSA) in the Northern District of Illinois. Whether intended or not, the book develops a view of law throughout that is of interest not only to lawyers, but any reader with a sense of curiosity about law and legal institutions.

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