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

[Paul Finkelman]

Language and terms are not simple matters.  Sometimes the results are 
funny.  When the Court decided to use "African-American" it led to some 
mindless results.  I had an article coming out in the Journal of the 
Supreme Court Historical Society, which was published at the Court and 
used the Court's style sheet.  I had a sentences which read "South 
Carolina's law would have led to the arrest of blacks from England and 
Caribbean" which the copy-editor insisted should be changed to 
"African-Americans from England and the Caribbean."  It took many 
conversations and e-mails to convince the staff of the journal that if 
they had been "African-Americans" they would not have been from the 
Caribbean or England!!!!
Finally they changed it.
I have heard, perhaps someone can confirm, that one lawyer did a global 
change on brief, changing "black" to "African-American" and ended up 
submitting the  brief with a citation to  "African-American, J., 
dissenting."

Paul Finkelman

Janet Alexander wrote:

> 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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-- 
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK  74105

918-631-3706 (voice)		
918-631-2194 (fax)

Paul-Finkelman at utulsa.edu


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