Dan Pinarello's posting on Justice Scalia's language in gay rights cases

[Janet Alexander]

I clerked for Justice Marshall in the 1979 Term.  He was quite aware that 
"Negro" was considered "old-fashioned," but thought the question of what 
term to use instead was not a simple one.  He had participated in and 
valued the struggle to win the use of "Negro" rather than offensive 
alternatives -- which in the past had included "black."  He later began to 
use the word "Afro-American," at a time before "African-American" became 
the more widely accepted word. It was not a matter of his being out of 
touch with the real world and being clued in by some friend.  (A propos 
Pam's final point, the NAACP has not changed its name.)

At 03:32 PM 8/8/2005 -0700, Pam Karlan wrote:
>         In his recent post on Justices' language and "preferred-reference 
> ratios," Dan Pinello noted that the Supreme Court stopped using the word 
> "Negro" in 1985.  I clerked for Justice Blackmun that Term (who was the 
> last Justice to use Negro -- in Clevenger v. Saxner), and remember quite 
> distinctly what happened: the Justice had long thought that the Court 
> should use words like "black" or "African American," but he felt 
> precluded from doing so by what he understood to be Justice Thurgood 
> Marshall's preference for the term "Negro."   (As late as 1991, in his 
> dissent in Board of Education v. Dowell, Justice Marshall used the word.) 
> Apparently, though, sometime in 1985 or 1986, Justice Marshall switched 
> -- reportedly after he was approached by a friend who told him that folks 
> in the real world thought the Supreme Court was behind the times in 
> continuing to use "Negro"!  Anyway, by the end of the Term, Justice 
> Blackmun had switched, with some relief, to using the word "black" instead.
>
>         I don't know that this has much bearing on the analysis of 
> Justice Scalia's references to gay people, which seem distinctly 
> unsympathetic to gay litigants' claims, but it is worth remembering that 
> being linguistically old-fashioned isn't per se a sign of hostility.
>
>
>Pamela S. Karlan
>Kenneth and Harle Montgomery Professor of Public Interest Law
>Stanford Law School
>559 Nathan Abbott Way
>Stanford, CA 94305-8610
>karlan at stanford.edu
>650.725.4851
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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892
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