Raining on the Parade of Horribles: Of Slippery Slopes, Faux Slopes, and Justice Scalia's Dissent in Lawrence V. Texas

Abstract

In this Comment, I analyze the rhetorical mechanism of the slippery slope argument in U.S. Supreme Court decisions so as to distinguish true slippery slope arguments from what I term faux slopes. The slippery slope argument is a mainstay of legal reasoning and disputation, because it relies on the mechanism of reasoning by means of precedent. But sometimes a statement that takes the form of a slippery slope argument, that appears to be warning of future judicial decisions that will be necessitated by precedent set by the present case, is not a sound legal argument at all. Indeed, sometimes the present case would not serve as viable precedent for the dreaded future case. This Comment illustrates how slippery slope arguments have been employed, in both majority opinions and dissents, by Supreme Court Justices, concluding with a discussion of Plessy v. Ferguson. I then argue that the majority opinion in Scott v. Sandford provides a vivid example of a faux slope. Ultimately, this Comment proposes that the seeming slippery slope argument deployed by Justice Scalia in his dissent to Lawrence is not a legal argument at all but, rather, a faux slope, with Lawrence bringing us no closer to legalized bestiality than we were before June 26, 2003. Article available online at http://www.pennlawreview.com/Issues/153/issue3/Sternglantz.pdf